law on evidence

INTRODUCTION

Q: What is the difference between the layman's concept of evidence and its legal concept?
A: Not every means of proving is acceptable in court. What is acceptable in an ordinary
conversation may not be acceptable in a court of justice. It must be sanctioned by the rules,
because if evidence is purely common sense and logic, there is no need to study the subject. You
have to study the subject because the manner of doing it (proving) may be acceptable to a
layman but may not be acceptable in court.

REVISED RULES ON EVIDENCE

In Rule 128, these provisions already tell you a lot about the law on evidence. For example,
section 3 already tells you the axiom of competency and the axiom of relevancy. Section 4 also
defines what circumstantial evidence is.

Let us fast forward to the future, what if a prospective client approaches you and tell you a story.
In all probability, he will tell you what proof he has to have to establish a claim against the
defendant. As a lawyer, what questions will you ask to establish cause of action or a defense by
filing the appropriate case before a court of justice?

Jose Diokno summarized the entire rules on evidence by asking these questions.
1. What facts must be established for the cause of action or defense to succeed?
2. Which of these facts or even the evidentiary facts tending to prove such facts are
deemed proved without having to present evidence?
3. Who must establish the facts that needed to be proven
4. What degree of proof is needed of the facts?
5. What available evidence is admissible to prove these facts?
6. How do I obtain the evidence I need and preserve it for use at the trial?
7. How do I present and offer the evidence at the trial?

What facts must be established for the cause of action or defense to succeed?

Before answering this question, what are the types of facts:

1. Factum probandum – ultimate facts
2. Factum probans – evidentiary facts

The answer to the question is ultimate facts. The same facts required to be in the pleading. The
facts that are ultimately proven in the trial. for example, in the case of murder, the ultimate fact is
the fact that the accused killed the victim and attended by qualifying circumstance.

Ultimate facts vis-a-vis evidentiary facts must of necessity be proven. Otherwise, cause of action
or the defense will necessary fail. for example, in a breach of contract--you must prove that there
is right, obligation, violation and although not written in some books, damage.

How will u know what ultimate facts be stated so as not to be dismissed under Rule 16? Do you
simply rely on what the client tells you? No. we refer to substantive law which creates or defines
rights. So you must consult substantive law.

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 law on evidence

Who is your main source of evidence? The client.

Now, therefore it is very important for you to have a thorough knowledge on substantive law to
apply it to the law on evidence.

Which of these facts or even the evidentiary facts tending to prove such facts are deemed
proven already without having to present evidence?
There are several of this under the rules particularly Rule 129. Also under the same rule,
we have the concept of judicial admissions. No need to prove by presenting evidence.

For example:
 Laws of nature = tulak-hulog-injury, gravity, etc.
 Admissions = ex. Corona admitted dollar account – no need to prove because it is
already admitted.

When a fact falls within the realm of judicial notice or within judicial admissions, no need proof.

BUT NOT EVERYTHING IS SUBJECT TO JUDICIAL NOTICE OR BE ADMITTED, so you need

to know what facts need to be proved.

Who must establish the facts that needed to be proven?

Onus probandi – the burden of proof

Burden of proof is one side of a coin because if you have the burden of proof the other side has
the benefit of assumption. Burden of proof is the opposite of benefit of assumption. for example,
in a Criminal case, there is a Presumption of innocence – accused has benefit of assumption,
meaning if no evidence is presented the person who has this benefit must prevail.

Burden of proof is the duty to present evidence on the disputed facts of the case necessary to
establish ones claim or defense by the amount of evidence required by the law.

So in criminal case the prosecutor has the burden to establish a prima facie case to rebut the
benefit of assumption so the defendant has now the burden of proof to prove that the prima facie
case is wrong.

What happens if in the case the accused sets up justifying circumstance?

There will be a reverse trial order because he already hypothetically admits the offense it is just
that it is justified, so what is the burden of proof- it is clear and convincing evidence not beyond
reasonable doubt because this applies only to the proof required in establishing the guilt not the
justifying circumstance. In civil case, it is the same, like answer with affirmative defense.

Burden of proof has two meanings

1. burden of persuasion – burden of establishing prima facie case, burden of convincing

the judge all the elements of the cause of action
2. Burden of proof going forward – when a party has establish a prima facie case or
defense by evidence of such character that it is then incumbent upon the other party to
rebut it or contradict, the burden is shifted from one party to the other.

What is the test to determine who has burden of proof?

Very simple just ask which party will be unsuccessful if no evidence is produced. A party who
asserts a claim has the burden to prove the claim and a party entitled to a relief is not given the
relief if he has not offered any proof.

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Effect of presumptions
In this type of presumption, the general rule changes. The GR is he who alleges has the burden
of proof but if there is a presumption this GR does not apply.

Example: Res ipsa loquitor – the thing speaks for itself

Republic vs Luzon Stevedoring – barge collided with the post of a bridge so who is at fault? Of
course it’s the barge

What degree of proof is needed of the facts?

Look at weight and sufficiency of the evidence – may involve quality or quantity of
evidence.

What available evidence is admissible to prove these facts?

This is a question of admissibility. Section 3 of Rule 128. You ask: IS THIS EVIDENCE
RELEVANT?

Ex.
1. Actionable document – breach of promise to marry? Not relevant
2. Bullet – crime of murder by means of stabbing? Not relevant

There must be a connection to the ultimate fact to be proved

IS THE EVIDENCE MATERIAL? Here you determine if the evidence is material

IS THIS EVIDENCE EXCLUDED?

Ex.
1. Violation of the right to privacy,
2. product of illegal search,
3. wiretap: GR: not admissible except when the CA orders to wiretap if suspected as
terrorist.,
4. hearsay evidence
5. marital disqualification – you cannot testify against your husband as long as marriage is
subsisting
6. Not allowed to present photocopy if the original is available – best evidence rule
7. Opinion evidence: GR = not admissible

How do I obtain the evidence I need and preserve it for use at the trial?
Main source of evidence is the client. If the client has not enough evidence, go to modes
of discovery Rule 23 to 29 even subpoena duces tecum or ad testificandum, pde din search
warrant

How do I present and offer the evidence at the trial?

It depends on the type of evidence

 Documentary – prove the contents of the document
 Object or demonstrative– address to the senses ex. Book’s color
 Testimonial – that type which has the greatest effect on the trial of facts because the
judge can witness the demeanor of the witness. Is it credible or incredible. Also, without
it, there could not be documentary or object evidence. These other types has to be
sponsored by testimony.

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RULE 128
GENERAL PROVISIONS
Section 1. Evidence defined. — Evidence is the means, sanctioned by these rules, of
ascertaining in a judicial proceeding the truth respecting a matter of fact.

What does “sanctioned by these rules” mean?

“Sanctioned by these rules”—evidence that is allowed by the rules of court. However, the
Rules of court is not the sole repository of the rules and principles of the law relating to the
evidence.

Other sources:

1. Article 1403 (2)—statute of frauds.

The law says that it must be in writing. If it is not in writing, it is unenforceable. If so, then
it cannot be proven or no sufficient memoranda of the same.

2. Torts and damages Article 2199

Article 2199. Except as provided by law or by stipulation, one is entitled to an adequate

compensation only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages.

this is an evidentiary rule because this tells you that you cannot be awarded damages
unless you are able to prove actual pecuniary loss.

3. Article 2216:

Article 2216. No proof of pecuniary loss is necessary in order that moral, nominal,
temperate, liquidated or exemplary damages, may be adjudicated. The assessment of
such damages, except liquidated ones, is left to the discretion of the court, according to
the circumstances of each case.

it is an evidentiary rule because if you are claiming for moral damages, you don’t have to
show proof any actual pecuniary loss

4. Res ipsa loquitor—it shifts the burden of proving that you are not negligent.

What does “judicial proceeding” mean?

“in a judicial proceeding”—we follow law on evidence strictly in judicial proceedings. As a

general rule, if administrative or quasi judicial, rules of evidence do not apply. By an exception, if
the rules of procedure of such administrative or quasi judicial body allows the application of the
rules of evidence and the rules of court, then they are applied.

SAMAR ELECTRIC COOP V. NLRC

The technical rules of evidence are NOT strictly followed in LABOR cases under Article
221 of the labor code: Art. 221. Technical rules not binding and prior resort to
amicable settlement. In any proceeding before the Commission or any of the Labor
Arbiters, the rules of evidence prevailing in courts of law or equity shall not be

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controlling and it is the spirit and intention of this Code that the Commission
and its members and the Labor Arbiters shall use every and all reasonable means to
ascertain the facts in each case speedily and objectively and without regard to
technicalities of law or procedure, all in the interest of due process. In any proceeding
before the Commission or any Labor Arbiter, the parties may be represented by legal
counsel but it shall be the duty of the Chairman, any Presiding Commissioner or
Commissioner or any Labor Arbiter to exercise complete control of the proceedings at all
stages.

Any provision of law to the contrary notwithstanding, the Labor Arbiter shall exert all
efforts towards the amicable settlement of a labor dispute within his jurisdiction on or
before the first hearing. The same rule shall apply to the Commission in the exercise of
its original jurisdiction. (As amended by Section 11, Republic Act No. 6715, March 21,
1989)

For labor arbiters, there is no more trial type process. In other words. There is conference
between parties to discuss amicable settlement, or complaint of employee discussed but other
than that, there is no hearing for purposes of receiving evidence. Cases decided on submission of
position papers.

The very nature of the proceedings in the labor arbiter is that it is SUMMARY and very
INFORMAL.

CATHAY PACIFIC V. NLRC

(August 2, 2001)

CATHAY next argues that the Court of Appeals erred in not admitting as evidence the
affidavit of Dr. Fahy. We agree. The appellate court may have overlooked the principle
in labor cases that the rules of evidence prevailing in courts of law or equity are not
always controlling.[10] It is not necessary that affidavits and other documents presented
conform to the technical rules of evidence as the Court maintains a liberal stance
regarding procedural deficiencies in labor case.[

Section 3, Rule V, of the New Rules of procedure of the NLRC specifically allows parties
to submit position papers accompanied by all supporting documents including affidavits
of their respective witnesses which take the place of their testimonies. [12] Thus, the fact
that Dr. Fahy was not presented as witness to identify and testify on the contents of her
affidavit was not a fatal procedural flaw that affected the admissibility of her affidavit as
evidence.

COMMENT: the usual manner of presenting evidence in judicial cases DO Not apply in labor
cases. In judicial cases—oath, info elicited is not he is not allowed to narrate but here has to be
questions, not allowed to lead. Documents have to be sponsored by witness and authenticated.
But in labor cases, all you have to is to pass your affidavits and documentary evidence and that is
automatically admitted. So in labor cases, there is no reference to technical rules of evidence.

How does hearing officer ascertain the facts to enable him to come up with his ruling? see
HORNALES V. NLRC.

HORNALES V. NLRC

Notwithstanding the foregoing, it must be emphasized that the proceedings before the
POEA is non-litigious in nature. The technicalities of law and procedure and the rules
obtaining in the courts of law shall not strictly apply thereto and a hearing officer may
avail himself of all reasonable means to ascertain the facts of the case. [

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What then is “REASONABLE MEANS”? see KANLAON V. NLRC.

KANLAON V. NLRC

Indeed, the labor arbiters and the NLRC must not, at the expense of due process, be the
first to arbitrarily disregard specific provisions of the Rules which are precisely intended
to assist the parties in obtaining the just, expeditious and inexpensive settlement of labor
disputes.

The opportunity to be heard is discharged in labor cases by means of submission of

position papers. That’s it! That’s how he ascertains the facts.

What are “facts”?

“fact”—there are 2 kinds of facts. ULTIMATE AND EVIDENTIARY FACTS.

1. ULTIMATE FACTS OR FACTUM PROBANDUM

- Are the principal, determinative and constitutive facts, the existence of which the
plaintiffs’ cause of action rests. It does not refer to the details of probative matter or a
particular evidence by which these materials or elements are established.
- In other words, they are the PROPOSIITONS that need to be established. They are
by their nature hypothetical.

2. EVIDENTIARY FACTS OR FACTUM PROBANS

- Facts which are necessary for the determination of ultimate facts. They are premises
by which the conclusions of ultimate facts are based.
- So if ultimate fact is that “a killed B”, that is hypothetical..you use an evidentiary fact
to arrive at the proposition being the constitutive fact. How to prove? Evidentiary
facts. i.e. fingerprints found on scene, cause of death of victim, positive identification
of the accused
- Evidentiary facts are brought forward as the reality brought to the tribunal saying that
the factum probandum is correct.

DISTINCTIONS

ULTIMATE FACTS EVIDENTIARY FACTS

Factum probandum Factum probans and intermediate facts

Proposition to be established Material evidencing the proposition and
therefore ..
Something yet to be established; by its nature Non hypothetical, existent
hypothetical

What is a “matter of fact”?

“a matter of fact” – an issue of fact or a question of fact. Remember that if it’s a pure
question of law, you don’t need evidence. just look at the law. Was it violated? Or constitutional or
unconstitutional? Pure question of law.

What is Question of fact? What is question of law? Of mixed question of fact and law? See
Cano v. chief

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CANO V. CHIEF OF PNP, November 22, 2002

There is a question of fact when doubt or difference arises as to the truth or falsehood of
the alleged facts, and there is a question of law where the doubt or difference arises as
to what the law is on a certain state of facts.

We therefore apply only the rules of evidence when there is a question of fact. If law, disregard
evidence. Just apply the law on the given state of facts. No need to prove anything during the
trial. Coz its purely of legal question.

Recall RULE 30, SECTION 6—AGREED STATEMENT OF FACTS.

Section 6. Agreed statement of facts. — The parties to any action may agree, in writing,
upon the facts involved in the litigation, and submit the case for judgment on the facts
agreed upon, without the introduction of evidence.

If the parties agree only on some of the facts in issue, the trial shall be held as to the
disputed facts in such order as the court shall prescribe.

So here, there’s no more question of fact by way of effect of Rule 30, no need for introduction of
evidence. Therefore, do not apply anymore.

What if parties agree only on some facts and others they do not agree?

Trial shall be held as to the disputed facts in such order as the court shall prescribe. I’d
like to let you take note of the Dissenting opinion:

TAN V. PEOPLE, April 12, 2009

Court is not a trier of facts. The jurisdiction of this Court over cases elevated from the
Court of Appeals is confined to the review of errors of law ascribed to the Court of
Appeals, whose findings of fact are conclusive absent any showing that such findings are
entirely devoid of any substantiation on record

In an appellate remedy, CA is also a trier of facts. So if there is a question of fact, go to CA rather

than the Supreme court.

If question of fact – apply the rules of evidence

If law—apply the law
If mixed—apply both.
If question of act, appeal is made to CA. if question of law, appeal is made to SC. If mixed
question, appeal is made to the CA. there is still that factual issue although mixed with legal
issue.

In the Philippines, distinction is different because of the choice of remedy. In the US,
determining if question of fact or law will determine the type of trial. If fact, trial by jury. Role of
judge is to filter the evidence lang. if question of law, it is the judge who decides the case; a
summary trial with the judge. Because the jury does not know the law. If mixed question sa US,
so it is a combination of judge or jury trial. Although judge would be more involved.

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CLASSIFICATION OF EVIDENCE

BASED ON NATURE

1. OBJECT/REAL EVIDENCE— Objects as evidence are those addressed to the senses of

the court. When an object is relevant to the fact in issue, it may be exhibited to, examined
or viewed by the court. (Rule 130, section 1)
o They are tangible evidence i.e. document itself

2. DOCUMENTARY EVIDENCE—Rule 130, Section 2. Documentary evidence. —

Documents as evidence consist of writing or any material containing letters, words,
numbers, figures, symbols or other modes of written expression offered as proof of their
contents.
o Just to put things in proper perspective: 1,000 peso bill..does it contain
letters, words, numbers, figures, symbols..YES. is it documentary evidence?
Or object evidence? It depends! Ngano nimu xa ipresent as evidence. If the
subject of inquiry would be proof of contents of this bill, then it is
documentary evidence. But if the object of evidence is to merely address it to
the senses of the court, then it is object evidence. So hybrid xa. Not
exclusive on both.

3. TESTIMONIAL EVIDENCE—Oral or written assertions in the court as proof of the truth of

what is being stated for as long as the witness of the testimony can perceive, and
perceiving, can make their known perception to others, may be witnesses.
o What’s perception? It is the exercise of your senses of sight, smell, hearing,
taste and touch. Whatever you can see..you testify in court that the sky is
blue..is that valid testimonial evidence? YES. That is derived from your
senses.
o Anything that can be perceived by your witness.

Subspecie Of Object Or Real Evidence

1. DEMONSTRATIVE EVIDENCE—this is evidence in the form of objects like maps,

diagrams, tables or models that is in itself has no probative value but is used to illustrate
and clarify the factual matter at issue broadly. It is as evidence not prohibited although not
specifically mentioned in the rules of courts.
o Example: powerpoint presentations.
o Why subspecie? It is addressed to senses of the court but the object itself is
not the evidence itself. It only helps to clarify the evidence.

NOTE: Among the 3 classes of evidence: object, documentary and testimonial evidence, what is
the hierarchy? PEOPLE V. LAVAPIE.

PHYSICAL EVIDENCE V. TESTIMONIAL EVIDENCE:

PEOPLE V. LAVAPIE

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If the physical evidence on record runs counter to the testimonial evidence of the
prosecution witnesses, conclusions as to physical evidence should prevail. It bears
reiteration that physical evidence is that mute but eloquent manifestations of truth which
rate high in our hierarchy of trustworthy evidence. [69] In the light of the physical evidence
obtaining in this case, contrary to oral assertions cannot normally prevail. Greater
credence is given to physical evidence as evidence of the highest order because it
speaks more eloquently than a hundred witnesses.

Example: how do you prove that a person died? By 100 witnesses that he fell on the 5 th floor or
from the body of the deceased. certified by medico legal that he died through that. so the medico
legal testimony is more weighty.

TESTIMONIAL V. DOCUMENTARY?

GSIS V. CA

Testimonial evidence is easy of fabrication and there is very little room for choice
between testimonial evidence and documentary evidence (Marvel Building Corporation
vs. David, 94 Phil. 376 [1954]). Generally, documentary evidence prevails over-
testimonial evidence.

So in hierarchy:
1. Object/real
2. Documentary
3. Testimonial—weakest but also the most important; it is the one who ties the object and
documentary evidence.

There are 2 types of TESTIMONIAL EVIDENCE:

1. ORAL TESTIMONY—one made in open court
2. WRITTEN TESTIMONY—affidavits, depositions..

Between the 2, which is given more credence? PEOPLE V. BALLENO

ORAL TESTIMONY V. WRITTEN TESTIMONY

PEOPLE V. BALLENO

An affidavit is not a complete reproduction of what the declarant has in mind because it is
generally prepared by the administering officer and the affiant simply signs it after it has
been read to him. In any case, open court declarations take precedence over written
affidavits in the hierarchy of evidence. Unlike written statements, there is flexibility on the
part of the questioner to adapt his questions to elicit the desired answer in order to ferret
out the truth.

What about open court testimonies? It is better because there is an opportunity for cross
examination. So whoever brings you to the witness stand, there is flexibility in the court.

Classification as to whether it negates or affirms:

1. POSITIVE EVIDENCE—when a witness affirms that fact occurred or did not occur
2. NEGATIVE EVIDENCE –when witness avers tha tit did not see or knows the occurrence
of a fact.

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Example: at the time of collision, was the headlight of vehicle turned on?
POSITIVE: yes, it was turned on.
POSITIVE: No, it was not turned on. (even if answer is couched in negative form, it still
affirmed a fact that headlight was not turned on)
NEGATIVE: Wa ko kabalo judge. Wa ko kabantay sir. I did not notice. (witness does not now
or did not see the occurrence of the fact)

PEOPLE V. MACALABA

We have time and again ruled that mere denial cannot prevail over the positive testimony of a
witness. A mere denial, just like alibi, is a self-serving negative evidence which cannot be
accorded greater evidentiary weight than the declaration of credible witnesses who testify on
affirmative matters. As between a categorical testimony that rings of truth on one hand, and
a bare denial on the other, the former is generally held to prevail.

Simplified: what prevails is POSITIVE EVIDENCE.

As to Materiality:

1. MATERIAL—evidence which tends to prove the fact in issue in a case; issue is

determined by substantive law and allegations of parties in their pleadings.
o If party alleges a fact and the other denies, there is an issue
o What if sa plaintiff, he asserts a fact then the defendant does not negate.
Defendant’s pleading here, tenders no issue.
o Example: D obtained a loan from A evidence by promissory note. D failed to
pay. A filed case on collection. Under substantive law, in oblicon, the right of
creditor is to be paid. The creditor alleged obligation was unpaid. A’s
argument is non-payment. D said he already paid. So issue nya is payment.
So here, issues are already joined. Whether or not the loan obtained by D
has already been paid or extinguished by agreement. So for plaintiff, what
evidence is material that tends to prove that D did not pay? The promissory
note. What about D, what material evidence which would tend to prove he
paid? The receipt.
o If D introduced as evidence the fact that they were classmates in elementary,
that is not material.

2. IMMATERIAL EVIDNCE—one which does not tend to prove a fact or issue.

As to admissibility:

1. COMPETENT—which is not excluded by the law or the rules. it simply means it is

admissible. There are 2 axioms: relevancy and competency. Competent—admissible
2. INADMISSIBLE EVIDENCE – one excluded by the law or the rules. it fails the test of
competency.

Is there such a thing as incompetent evidence? YES but not as opposite of competent evidence.
This refers to testimonial evidence. It is not qualified sa rules of testimonial evidence. Example:
you want to present a doctor as expert witness but you failed to prove his qualifications and his
qualifications are disputed. In that sense, he is incompetent as a witness. Or u want to present a
witness to testify what he saw in a certain occurrence but it turns out that he wasn’t really there.

RULES ON EXCLUSION

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Review bill of rights: article 3, sections 2 and 3:

1. Section 2: The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures shall not be violated, and no
warrants shall issue but upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complainant and the witnesses, he may
produce, and particularly describing the place to be searched, and the persons or things
to be seized.

2. Section 3: the privacy of communication and correspondence shall be in violab1e except

upon lawful order of the court or when public safety and order require otherwise.

What is the effect of violating section 2 or section 3? Any evidence in violation of this or
the preceding section shall be inadmissible for any purpose and in any proceeding.

That is the rule of exclusion making the evidence inadmissible.

3. RULE 26, SECTION 5—ADMISSION BY ADVERSE PARTY :

Section 5. Effect of failure to file and serve request for admission. — Unless
otherwise allowed by the court for good cause shown and to prevent a failure of
justice a party who fails to file and serve a request for admission on the adverse
party of material and relevant facts at issue which are, or ought to be, within the
personal knowledge of the latter, shall not be permitted to present evidence on
such facts.

As to Relevancy:

1. RELEVANT—evidence which has tendency in reason to establish the probability or

improbability of the fact in issue. It is one tending one to prove or disprove a material fact;
has tendency to build an existence of a fact which is as a consequence to the
determination of the fact which would be more or less probable than one without
evidence.

Relevancy is different form materiality. Materiality is one which tends to prove the fact
in issue in a case. Like you want to prove payment, so present receipt. However, with
respect to relevancy, it only has a tendency in reason to establish the probability or
improbability of the fact in issue. Example: a case regarding the shooting of the person
and the person was shot at long distance and shot in the middle of the eyes. During
presentation of prosecution’s evidence, fiscal presented evidence that the accused used
to be Olympic gold medalist in shooting. Does it tend to prove the case? NO. being an
Olympic gold medalist means that you have killed somebody. But this has a tendency to
prove that accused is the killer d/t his ability as sharp shooter. NOT REALLY DIRECTLY
MATERIAL BUT RELEVANT.

2. IRRELEVANT/UNRELATED EVIDENCE—example: prosecution tends to prove that

accused was gold medalist in boxing. It is irrelevant, immaterial, unrelated and therefore
objectionable. Court must exclude it from the evidence.

According to the need to infer or presume:

1. DIRECT—proof of the fact or the point in issue; proof that it believes establishes the truth
or falsity of a fact in issue and therefore, does not arise from a mere presumption.

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Example: who killed the victim? Accused. I saw him shoot the victim. (it
directly points to the issue or fact in issue)

2. CIRCUMSTANTIAL— evidence not baring directly on the fact in dispute but on various
attendant circumstances by which the judge may infer regarding the occurrence of the
fact or issue in dispute.

Example: who killed the victim? Accused. I saw him running away from the crime scene,
he held a gun and his shirt was splattered with blood. (these are circumstances that may
prove that he killed the victim)

PEOPLE V. RAMOS

Evidence is either direct or circumstantial. Direct evidence is that evidence which proves
a fact in issue directly without any reasoning or inferences being drawn on the part of the
fact finder. Circumstantial evidence is that evidence which indirectly proves a fact in
issue. The fact finder must draw an inference or reason from circumstantial evidence.

Under our Rules of Court, conviction based on circumstantial evidence is sufficient if: (a)
there is more than one circumstance; (b) the facts from which the inferences are derived
are proven; (c) the combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.

Is conviction of an accused possible with direct evidence? YES. It is one preferred by the law.

What about circumstantial evidence? YES. Provided al the 3 requisites are present in that case.

As to Originality:
1. PRIMARY OR BEST EVIDENCE—evidence which the law regards as effecting the
greatest certainty of the fact in issue; i.e. in torts and damages, what is the best evidence
to prove entitlement of plaintiff? Best evidence is the production receipts.

2. SECONDARY – inferior or merely substitutionary evidence that which itself indicates

another original source or information; i.e. photocopies. it alludes the fact that there is an
original or a mere certified copy.

Note: 1. Best Evidence Rule: Section 3. Original document must be

produced; exceptions. — When the subject of inquiry is the contents of a document, no
evidence shall be admissible other than the original document itself, except in the
following cases:xxxxxxxx
(a) When the original has been lost or destroyed, or cannot be produced in court, without
bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;
(c) When the original consists of numerous accounts or other documents which cannot
be examined in court without great loss of time and the fact sought to be established
from them is only the general result of the whole; and
(d) When the original is a public record in the custody of a public officer or is recorded in
a public office. (In land titles and deeds, you have OCT kept by ROD. Why don’t u
just present it in the SC? Because there is a case of immovability of records. )

as to Supporting Evidence:
1. CUMULATIVE EVIDENCE—Additional evidence on the same kind and character as to
that already given and tends to prove the same proposition.

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2. CORROBORATIVE—additional evidence of different kind and character tending to prove

the same point; deemed necessary only when there are reasons to suspect that the
witness did not know the truth or that his observation has been inaccurate. (PEOPLE V.
MANZANO, November 26, 2001)

How does SC view these 2 kinds of evidences?

Let us suppose fact in issue is that accused uttered defamatory words against
complainant in a case for slander. If you prosecute an accused with crime for slander, do you
have to present a hundred of witnesses despite its publicity?

PEOPLE V. MANZANO

Truth is established not by the number of witnesses but by the quality of their testimonies.

PEOPLE V. EDGAR AYUPAN

It is well-settled that the testimony of a lone witness – if found by the trial court to be
positive, categorical and credible – is sufficient to support a conviction. This is so,
especially if the testimony bore the earmarks of truth and sincerity and was delivered
spontaneously, naturally and in a straightforward manner.12 Corroborative evidence is
necessary only when there are reasons to suspect that the witness bent the truth, or that
his or her observation was inaccurate. Evidence is assessed in terms of quality, not
quantity. It is to be weighed, not counted. Therefore, it is not uncommon to reach a
conclusion of guilt on the basis of the testimony of a lone witness.

PEOPLE V. GUMAYAO

This Court has consistently ruled that the testimony of a single prosecution witness, as
long as it is positive, clear and credible is sufficient on which to anchor a judgment of
conviction. Corroborative or cumulative evidence is not a prerequisite to the conviction of
the accused. Truth is established not by the number of witnesses but by the quality of
their testimonies.[

CLASS OF EVIDENCE as to controversion:

1. PRIMA FACIE—evidence that is sufficient to establish a fact and if not rebutted, becomes
conclusive of a fact.

Example:
a. in bribery cases, acceptance of a gift is deemed prima facie evidence of bribery.
Effect: burden of proof shifted to defendant.
b. BP 22— To hold petitioner liable for violation of B.P. 22, it is not enough that the
issued check was subsequently dishonored for insufficiency of funds. It must be
shown beyond reasonable doubt that he knew of the insufficiency of funds at the time
the check was issued.7 Hence, the law provides that he must be notified of the
dishonor, thus:
SEC. 2. Evidence of knowledge of insufficient funds. – The making, drawing and
issuance of a check payment of which is refused by the drawee bank because of
insufficient funds in or credit with such bank, when presented within ninety (90)
days from the date of the check, shall be prima facie evidence of knowledge of
such insufficiency of funds or credit, unless such maker or drawer pays the
holder thereof the amount due thereon, or makes arrangements for payment in

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full by the drawee of such check within five (5) banking days after receiving
notice that such check has not been paid by the drawee

2. REBUTTING EVIDENCE— That which is given by a party in the cause to explain, repel,
counteract or disprove facts given in evidence on the other side. The term rebutting
evidence is more particularly applied to that evidence given by the plaintiff, to explain or
repel the evidence given by the defendant.

Example: evidence of promissory note—rebut it with payment, so produce receipts

3. CONCLUSIVE EVIDENCE— Evidence which is incontrovertible, that is to say, “either not

open or not able to be questioned, as where it is said that a thing is conclusively proved,
it means that such result follows from the facts shown as the only one possible.

example:
a. RULE 130, Section 9 : Section 9. Evidence of written agreements. — When the
terms of an agreement have been reduced to writing, it is considered as containing
all the terms agreed upon and there can be, between the parties and their
successors in interest, no evidence of such terms other than the contents of the
written agreement. (Parol Evidence Rule) xxxx
b. Crime committed by child below 9 years old—how to establish that? Birth
certificate. No discernment—no criminal liability d/t lack of intelligence so therefore,
no mens rea.

as To tenor of testimony (testimonial evidence)

1. ORDINARY EVIDENCE evidence which consists of testimonies of witnesses which are

derived from his personal knowledge; one derived from his own perception.

SPECIAL TYPES:
2. CHARACTER or REPUTATION EVIDECE  evidence which attests to one’s character
and moral standing in community; generally, one’s character of a party is legally irrelevant
in determining the controversy, however, when allowed, character evidence must be
limited to the traits and characteristics involved in the type of offense charged.

Example: one is charged with falsification; then you present evidence that he falsified his
driver’s license. Another thing, in probate of a will.

3. OPINION EVIDENCE—evidence of what the witness thinks, believes or infers in regard

to facts in dispute as distinguished from personal knowledge of the facts themselves;
rules of evidence do not usually allow witness to testify based on opinions and
conclusions.

4. EXPERT EVIDENCE—consists of an opinion of a witness on a matter requiring special

knowledge, skill or experience which he is assumed to possess.

Question: do you know of a specific fact which would require opinion evidence?
a. Person and family relations proof of psychological incapacity in declaration of
nullity of marriage

according to source:

1. INTRINSIC EVIDENCE—naa ra diha; information necessary for the determination of an

issue that is gleaned from the document itself;

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2. PAROL/ EXTRINSIC EVIDENCE; EVIDENCE ALLIUNDE—evidence from a

source outside the document itself; aliunde means “from outside”;

You will encounter more of these in succession and in parol evidence.

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

“same in all courts” we are talking about courts of justice and NOT quasi-judicial courts.

“all types of hearings” applies to all types of cases in courts of justice

CASES THAT FOLLOW A DIFFERENT EVIDENTIARY RULE: “except as otherwise provided by

law or these rules”:

1. JUVENILE cases recall your civil procedure in the RTC. If it takes cognizance of
juvenile or agrarian cases, do you still follow the rules of evidence? YES. Because of the
provision, section 24, BP 129: Section 24. Special Rules of Procedure. – Whenever a
Regional Trial Court takes cognizance of juvenile and domestic relation cases and/or
agrarian cases, the special rules of procedure applicable under present laws to such
cases shall continue to be applied, unless subsequently amended by law or by rules of
court promulgated by the Supreme Court.

So you still follow rules of evidence here but because of section 24, there is a slight variation.
EXAMPLE: AM 004-07-SC on the Rule on examination of witness. SECTION 1. Applicability
of the Rule.— Unless otherwise provided, this 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.

PEOPLE V. CANETE
march 28, 2003

this tells you about rationale from departure of customary rules of evidence on the
examination of child witnesses Parenthetically, under Sections 19 to 21 of the Rule on
Examination of a Child Witness which took effect on December 15, 2000, child witnesses
may testify in a narrative form and leading questions may be allowed by the trial court in
all stages of the examination if the same will further the interest of justice. Objections to
questions should be couched in a manner so as not to mislead, confuse, frighten and
intimidate the child:

PEOPLE V. BARING
January 3, 2002

On account of the increased number of children coming into the realm of the judicial
system, we adopted the "Rule on Examination of a Child Witness" to govern the
examination of child witnesses who may either be victims, accused or witnesses to a
crime.37 This rule ensures an environment that allows children to give reliable and
complete evidence, minimize trauma, encourage children to testify in legal proceedings,
and facilitate the ascertainment of truth.

PEOPLE V. SANTOS

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September 8, 2006

The trend in procedural law is to give a wide latitude to the courts in exercising control over
the questioning of a child witness. 36 Under Sections 19 to 21 of the Rules on Examination of
a Child Witness,37 child witnesses may testify in a narrative form and leading questions may
be allowed by the trial court in all stages of the examination if the same will further the
interest of justice.38 It must be borne in m ind that the offended party in this case is a 6-year
old minor who was barely five when she was sexually assaulted. As a child of such tender
years not yet exposed to the ways of the world, she could not have fully understood the
enormity of the bestial act committed on her person.

2. AGRARIAN CASES  What about agrarian cases? Are they cognizable by regular
courts? NO. it is taken cognizance of by DARAB which has its own rules of procedure.

3. RULES OF SUMMARY PROCEDURE—submission of affidavits.

But are there certain special rules, other than rules of evidence, that is also followed in
regular cases? YES. Rules on Summary Procedure. We have learned that affidavits take
the place of testimonies. You cannot testify unless you previously executed an affidavit or
perhaps if you are a government official and you were asked to identify a public
document that is relevant in a case. So that is a different evidentiary rule. Just imagine if
there is a disqualification to testify, but you previously submitted an affidavit. Is that found
in regular rules? no. in fact I love it when the other party has already submitted an
affidavit, coz you know already what they are going to say. You will determine beforehand
your questions for cross-examination.

4. RULES OF PROCEDURE FOR SMALL CLAIMS CASES  there is no direct

examination by lawyers; in fact, they are not allowed. There is no need to submit
affidavits but only accomplishment of judicial forms.

Section 3. Admissibility of evidence. — Evidence is admissible when it is relevant to the issue

and is not excluded by the law of these rules.

The admissibility of evidence would depend on 2 key factors:

1. RELEVANCY i.e. relevant to the issue.

What is relevant? It must have a relation to the fact in issue as to induce belief in its
existence or non existence.

The test of relevancy is the most important principle found in the entire law on evidence
because evidence having no tendency, whatsoever, to make the existence of a fact of
consequence before a tribunal more or less probable than it would be than if evidence
would be excluded.

In other words, you have that evidence and you want to present it, how do you test if you
want to present it? You have to test its relevancy because if it has a tendency in reason to
more or less establish the probability or improbability of the fact in issue, then if its
relevant, then present it. If not, then ayaw nalang.

How do you know whether party attempts to prove a fact or issue in a case? What
determines is SUBSTANTIVE LAW. Prove the elements of the crime. If that piece of
evidence is related to the elements and it tends to prove that element, then it is relevant.

2. COMPETENCY i.e. is not excluded by the law or these rules

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Who is John Henry Wigmore and Charles Tilford McCormick? These are American authors. Our
rules of evidence were patterned in the US rules of evidence.

JOHN HENRY WIGMORE:

1. Only those facts which have rational probative value are admissible and subsequent
Filipino authors call that AXIOM OF RELEVANCY.
2. All facts having rational probative value are admissible unless prohibited by some specific
rule which we call as AXIOM OF COMPETENCY.

Putting these actions, we put together section 3 of rule 128.

CHARLES TILFORD MCCORMICK: suggests the ff. inquiry

1. Does evidence offered tender the desired inference more probable than it would be
without the evidence? Relevant evidence therefore is evidence which in some degree
advances the inquiry and thus has probative value and thus prima facie admissible.
(McCormick doesn’t say much on competent evidence)

In both tests, whether proffered by either, what term is prominent? PROBATIVE VALUE it
means evidence having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the
evidence. This means that a reasonable person’s assessment of the probativeness of a
consequential fact might be changed by the piece of evidence, it has probative worth. Once
evidence is admitted, the trier of facts decides how much value or weight, they will give the
evidence.

Let us suppose that a person is accused of raping a woman and the woman, after being raped
was subjected to a vaginal swabbing to prove the semen that was left in the vagina. If you want to
prove that it was the accused who raped the woman, would that semen advance the inquiry?
Would that make a matter of fact? Would it make the evidence relevant? YES. THAT is probative
worth. If something that has tendency in reason to advance an inquiry to a matter of fact.

It doesn’t necessarily mean that if an evidence is admitted, he would be relieved. For example, in
one case I handled, a case of summary procedure..submit affidavits and witness can only satisfy
to matters contained in the affidavit. I resorted to object evidence. When I attempted to do so,
opposing counsel said that it is not allowed. I argued it was a newly discovered evidence. Judge
resolved of admitting evidence coz he is interested sa evidence. But he warned me that it doesn’t
mean that I admitted the evidence, you have already proven your point. I still have to assess your
evidence based on its weight and probative value.

Weight or probative value is therefore synonymous to credibility of evidence. Or in layman’s term

—believability of evidence. It doesn’t mean that if evidence is admitted for being relevant to the
fact in sisue or is not excluded by the law or these rules, that it is automatically believable.
Therefore, that matter is left to the appreciation of court or the tribunal.

Let’s go back to properly demonstrate what is meant by relevance. Remember in convicting an

accused, you have to prove FACTUM PROBANDUM or ULTIMATE FACT:

Underwear Prove that accused Relevant because it Accused raped

owns the underwear proves his presence in and murdered the
the scene of the crime victim
Knife Knife was used for
stabbing
Fingerprints Match it to confirm
accused’ presence

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Dead body  Present a medico To prove the cause of

legal death

So now, you have all the evidence which before might have no relation to the factum probandum
but when taken together, or where one proposition is linked together with another proposition—
you can come up with your end proposition which is your factum probandum.

Probative value = it has any tendency to make a fact or consequence more or less probable than
it would be without the evidence

Once evidence is admitted, the trier of facts decide how much value or weight is given to the
evidence.

Remember: Relevance is determined by logic or common sense. Consult substantive law to

relate all the facts that were presented to you by your client. Distinguish those that you have to
prove and those what need not be proved.

2. COMPETENCY

Competency means that all facts having rational probative value are admissible unless
prohibited by some specific rule. With respect to our rules of evidence, it refers as to whether it is
prohibited by the Law or the Rules of court.

The General rule is that When evidence is inadmissible or objectionable but the other
party fails to object, the latter party waives the objectionability; he waives its defect

This of course requires knowledge of the law. Evidence may be relevant but may be excluded by
the Law or the Rules.

So if you do not know how to object or have other evidence, not admitted by the court, you will
lose the case.

Examples of Exclusions made by law:

1. Article 1403 statutes of frauds-- if one fails to object to presentation of oral evidence to
prove a contract which is covered under the Statute of Frauds, the defect is deemed
waived if defendant fails to object.

2. Article 3 Bill of Rights Constitution

Section 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.

Section 3.
1. The privacy of communication and correspondence shall be inviolable except
upon lawful order of the court, or when public safety or order requires
otherwise, as prescribed by law.
2. Any evidence obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any proceeding.

Note: Evidence in violation of this is called “inadmissible”; while evidence that does not
violate laws, you call that “competent evidence”. Remember it is not termed as

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“incompetent” because the latter refers to qualifications prescribed by the law.

i.e. you are supposed to present an expert on ballistics but what you presented is a
veterinarian. So that witness or testimony is incompetent.

3. Rule 26 Rules of Court Section 5. Effect of failure to file and serve request for
admission. — Unless otherwise allowed by the court for good cause shown and to
prevent a failure of justice a party who fails to file and serve a request for admission on
the adverse party of material and relevant facts at issue which are, or ought to be, within
the personal knowledge of the latter, shall not be permitted to present evidence on such
facts.

4. RA 4200—Anti-Wire Tapping Law

SALCEDO-ORTANEZ V. COURT OF APPEALS

RA 4200 states:
Sec. 1. 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 word by using a device commonly known as a dictaphone or
dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise
described. . . .
Sec. 4. Any communication or spoken word, or the existence, contents,
substance, purport, or meaning of the same or any part thereof, or any information
therein contained, obtained or secured by any person in violation of the preceding
sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial,
legislative or administrative hearing or investigation.
Absent a clear showing that both parties to the telephone conversations allowed the
recording of the same, the inadmissibility of the subject tapes is mandatory under Rep.
Act No. 4200.

Exceptions to this rule

1. When communication is NOT private

NAVARRO V. CA
The law prohibits the overhearing, intercepting, or recording of private communications.
[29]
Since the exchange between petitioner Navarro and Lingan was not private, its tape
recording is not prohibited.

3. If both parties consent to such use

4. RA 9372 Human Security Act of 2007

SEC. 7. Surveillance of Suspects and Interception and Recording of Communications. – The
provisions of Republic Act No. 4200 (Anti-wire Tapping Law) to the contrary notwithstanding, a
police or law enforcement official and the members of his team may, upon a written order of the
Court of Appeals, listen to, intercept and record, with the use of any mode, form, kind or type of
electronic or other surveillance equipment or intercepting and tracking devices, or with the use of
any other suitable ways and means for that purpose, any communication, message,
conversation, discussion, or spoken or written words between members of a judicially declared
and outlawed terrorist organization, association, or group of persons or of any person charged
with or suspected of the crime of terrorism or conspiracy to commit terrorism.

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Provided, That surveillance, interception and recording of communications between

lawyers and clients, doctors and patients, journalists and their sources and confidential business
correspondence shall not be authorized.

In Drugs Cases, we have this chain of custody requirements under RA 9165

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered

Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take
charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled
precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered, for proper disposition in the following
manner:
(1) The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory and be given a copy thereof;
(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant
sources of dangerous drugs, controlled precursors and essential chemicals, as well
as instruments/paraphernalia and/or laboratory equipment, the same shall be
submitted to the PDEA Forensic Laboratory for a qualitative and quantitative
examination;
(3) A certification of the forensic laboratory examination results, which shall be done
under oath by the forensic laboratory examiner, shall be issued within twenty-four
(24) hours after the receipt of the subject item/s: Provided, That when the volume of
the dangerous drugs, plant sources of dangerous drugs, and controlled precursors
and essential chemicals does not allow the completion of testing within the time
frame, a partial laboratory examination report shall be provisionally issued stating
therein the quantities of dangerous drugs still to be examined by the forensic
laboratory: Provided, however, That a final certification shall be issued on the
completed forensic laboratory examination on the same within the next twenty-four
(24) hours;
(4) After the filing of the criminal case, the Court shall, within seventy-two (72) hours,
conduct an ocular inspection of the confiscated, seized and/or surrendered
dangerous drugs, plant sources of dangerous drugs, and controlled precursors and
essential chemicals, including the instruments/paraphernalia and/or laboratory
equipment, and through the PDEA shall within twenty-four (24) hours thereafter
proceed with the destruction or burning of the same, in the presence of the accused
or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the DOJ, civil society
groups and any elected public official. The Board shall draw up the guidelines on the
manner of proper disposition and destruction of such item/s which shall be borne by
the offender: Provided, That those item/s of lawful commerce, as determined by the
Board, shall be donated, used or recycled for legitimate purposes: Provided, further,
That a representative sample, duly weighed and recorded is retained;
(5) The Board shall then issue a sworn certification as to the fact of destruction or
burning of the subject item/s which, together with the representative sample/s in the
custody of the PDEA, shall be submitted to the court having jurisdiction over the
case. In all instances, the representative sample/s shall be kept to a minimum
quantity as determined by the Board;
(6) The alleged offender or his/her representative or counsel shall be allowed to
personally observe all of the above proceedings and his/her presence shall not
constitute an admission of guilt. In case the said offender or accused refuses or fails
to appoint a representative after due notice in writing to the accused or his/her

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counsel within seventy-two (72) hours before the actual burning or destruction of the
evidence in question, the Secretary of Justice shall appoint a member of the public
attorney's office to represent the former;
(7) After the promulgation and judgment in the criminal case wherein the representative
sample/s was presented as evidence in court, the trial prosecutor shall inform the
Board of the final termination of the case and, in turn, shall request the court for leave
to turn over the said representative sample/s to the PDEA for proper disposition and
destruction within twenty-four (24) hours from receipt of the same; and
(8) Transitory Provision: a) Within twenty-four (24) hours from the effectivity of this Act,
dangerous drugs defined herein which are presently in possession of law
enforcement agencies shall, with leave of court, be burned or destroyed, in the
presence of representatives of the Court, DOJ, Department of Health (DOH) and the
accused/and or his/her counsel, and, b) Pending the organization of the PDEA, the
custody, disposition, and burning or destruction of seized/surrendered dangerous
drugs provided under this Section shall be implemented by the DOH.

What happens if there are lapses in these procedures?

PEOPLE V. EUGENIO

Failing to comply with the provision of Section 2 of R.A. No. 9165 does not necessarily
doom the case for the prosecution, however. People v. Pringas enlightens:
Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal
as long as there is justifiable ground therefor, and as long as the integrity and the
evidentiary value of the confiscated/seized items, are properly preserved by the
apprehending officer/team. Its non-compliance will not render an accused's arrest
illegal or the items seized/confiscated from him inadmissible. What is of utmost
importance is the preservation of the integrity and the evidentiary value of the
seized items, as the same would be utilized in the determination of the guilt or
innocence of the accused.

THREE TYPES OF ADMISSIBILITY

1. Multiple Admissibility - When a fact is offered for one purpose, and is admissible in so
far as it satisfies all rules applicable to it when offered for that purpose, its failure to
satisfy some other rule which would be applicable to it offered for another purpose does
not exclude it.

In other words, 1 piece of evidence can be admissible in different characters.

Example: A private document may be offered and admitted in evidence both as
documentary evidence and as object evidence depending on the purpose for
which the document is offered. private document can be both object and
documentary evidence. If private document is offered to prove its existence for
any purpose other than the contents of a document, the same is considered as
object evidence. When private document is offered as proof of its contents, the
same is considered as documentary evidence

2. Conditional Admissibility – evidence is admissible only in dependence upon other

facts. It is received on the express assurance of counsel, when objection is manifested,
that other facts will be duly presented at a suitable opportunity before the case is closed.

Example: in the direct examination fo the witness, you ask a question that is
immaterial and irrelevant. Of course, the other party is going to object. But you
know that you are going somewhere. That it will be material if you are going to
preset another fact. So it will become material in relation to other facts. If you fail

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to fulfill the condition or if you fail to relate the same to other facts, it will not be
admitted.

3. Curative Admissibility - A party has the right to introduce incompetent evidence in his
behalf where the court has admitted the same kind of evidence adduced by the adverse
party. This is to prevent manifest injustice.

Example: in summary procedure, the court allowed me to present evidence not

found in the affidavit. Of course, its unfair on the part of the accused. The other
counsel objected but he can also present the same incompetent evidence.
Patas2x lang.

RULE 129
What Need Not Be Proved
RULE 129 tells us what matters need not be proved. When you handle case, consider those
which need to be proved and those which do not require proof.

What are these instances which do not need proof?

1. PRESUMPTIONS  laid down under rule 131

a. Conclusive—those which the law does not allow to be controverted;
b. Disputable those which are satisfactory if uncontradicted but which may be
contradicted when overcome by other evidence.

Example: Presumption of negligence when doctrine of res ipsa loquitor applies—same

with what happened in the case of Republic v. Luzon Stevedoring, nay bangga sa pier.
Kinsa nay sala? Alangan an gposte? So presumption applies that the defendant is the
one negligent. The plaintiff now does not have to prove negligence.

2. When it falls under matters of JUDICIAL NOTICE

a. Rule 129, section 1—JN when mandatory
b. Rule 129, section 2—JN when discretionary
c. Rule 129, section 3—JN when hearing necessary

3. JUDICIAL ADMISSIONS—rule 129, section 4

- Something that is judicially admitted does not require proof
- it would be unprofitable to require proof in that case.

JUDICIAL NOTICE
Definition:
DORIS CHONGBIAN-OLIVA
G.R. No. 163118 April 27, 2007

Judicial notice is the cognizance of certain facts which judges may properly take and act
on without proof because they already know them.

Judicial notice is a rule in the law of evidence that allows a fact to be introduced into
evidence if the truth of that fact is so notorious or well known that it cannot be refuted. It
is the cognizance of certain facts without proof because they are facts which by common
experience are of universal knowledge among intelligent persons w/I a country or
community.

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Latin maxim: Manifesta probatione non indigent - Manifest things require no proof.

What is the purpose of judicial notice?

As in the case of may rules, Judicial notice is based upon convenience and expediency for it
would certainly be superfluous, inconvenient, and expensive both to parties and the court to
require proof, in the ordinary way, of facts which are already known to courts.
Example: territorial extent of states, nature (you don’t have to prove gravity, etc.)

MUNICIPAL BOARD V. AGUSTIN

There are facts, indeed of which courts should take judicial cognizance. These facts refer to a
variety of subjects — legislative, political, historical, commercial, scientific, and artificial — in
addition to a wide range of matters, arising in the ordinary course of nature or the general current
of human events. The matter of judicial notice is ever expanding and will surely keep pace with
advances of the sciences and the arts. But, a matter to be judicially cognizable must be well-
established or authoritatively settled, or of common or general knowledge. Obviously, courts
should take notice of whatever is or should be generally known because judges should not be
more ignorant than the rest of mankind.

What are the REQUISITES OF JUDICIAL NOTICE?

PIGAO V. RABANILLO
May 2, 2006

Matters of judicial notice have three material requisites:

1. the matter must be one of common and general knowledge;
2. it must be well and authoritatively settled and not doubtful or uncertain; and
3. it must be known to be within the limits of jurisdiction of the court.

How should the court exercise its power of judicial notice? The power of taking judicial notice
is to be exercised by courts with caution. Care must be taken that the requisite notoriety
exists and every reasonable doubt on the subject should be promptly resolved in the
negative.

So when in doubt, don’t take JN. Or apply section 2 or 3. i.e. take hearing.

First element: what is meant by COMMON KNOWLEDGE?

SALUDO VS AMERICAN EXPRESS INTERNATIONAL

April 19, 2006

The concept of "facts of common knowledge" in the context of judicial notice has been
explained as those facts that are "so commonly known in the community as to make it
unprofitable to require proof, and so certainly known to as to make it indisputable
among reasonable men." Moreover, "though usually facts of 'common knowledge' will be
generally known throughout the country, it is sufficient as a basis for judicial notice that
they be known in the local community where the trial court sits." Certainly, the fact of
petitioner Saludo being the duly elected representative of Southern Leyte at the time
could be properly taken judicial notice of by the court a quo, the same being a matter of
common knowledge in the community where it sits.

3 Types of Judicial Notice

1. Mandatory (rule 130, section 1)

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2. Discretionary (rule 130, section 2)

3. When hearing necessary (rule 130 section 3)

JUDICIAL NOTICE; MANDATORY

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

What are the matters taken judicial notice of by the court as mandated by the word, “shall”
and without the introduction of evidence?

1. EXISTENCE AND TERRITORIAL EXTENT OF STATES their political history, forms of

government and symbols of nationality

The purpose here is convenience and expediency because it would be more burdensome and
unprofitable if you require proof on this one.

2. The LAW OF NATIONS

You are familiar with article 2, section 2: Section 2. The Philippines renounces war
as an instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations. (this embodies the
doctrine of incorporation)

By reason of that clause in the constitution, the Universal Declaration of Human

rights automatically becomes part of the law of the land. The doctrine of incorporation
decrees that rules of international law are given equal standing, but are not superior
to, national legislative enactments. (Secretary of Justice v. Lantion)

How may international law be part of domestic law

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE

PHILIPPINES v. HEALTH SECRETARY FRANCISCO T. DUQUE III; October 9,
2007

Under the 1987 Constitution, international law can become part of the sphere of
domestic law either by: Transformation Or Incorporation.

The transformation method requires that an international law be transformed into a

domestic law through a constitutional mechanism such as local legislation. The
incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law.

What part of the international law is automatically incorporated, if any? Only the
generally accepted principles of international law. (we’ll go to that later on)

Treaties become part of the law of the land through transformation pursuant to Article
VII, Section 21 of the Constitution which provides that "[n]o treaty or international
agreement shall be valid and effective unless concurred in by at least two-thirds of all
the members of the Senate." Thus, treaties or conventional international law must go

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through a process prescribed by the Constitution for it to be transformed into

municipal law that can be applied to domestic conflicts.

What about generally accepted principles of international law? What if they are not
derived from treaties? How do they become part of our law?

MIJARES V. RANADA
G.R. No. 139325, April 12, 2005, 455 SCRA 397.

Generally accepted principles of international law, by virtue of the incorporation

clause of the Constitution, form part of the laws of the land even if they do not derive
from treaty obligations. The classical formulation in international law sees
those customary rules accepted as binding result from the combination [of] two
elements: the established, widespread, and consistent practice on the part of States;
and a psychological element known as the opinion juris sive necessitates (opinion
as to law or necessity). Implicit in the latter element is a belief that the practice in
question is rendered obligatory by the existence of a rule of law requiring it.

“Generally accepted principles of international law" refers to norms of general or

customary international law which are binding on all states, i.e., renunciation of war
as an instrument of national policy, the principle of sovereign immunity, a person's
right to life, liberty and due process, and pacta sunt servanda, among others.

(Just take note of these generally accepted principles for they are within the realm of
mandatory judicial notice)

What about a FOREIGN LAW? Can the court take judicial notice of a foreign
law here in Philippines?

No. the existence of a foreign law per se is not within the mandatory judicial notice.

NOTE: The Court should take judicial notice of historical events of only of
international interest not local interest. But if the event is of purely local interest of
that country, the court is not obliged to take judicial notice.

Example: OBAMA was elected president, can court here take judicial notice? Its
purely local interest of that country, but Yes, because it is of international interest.

What if who would be the secretary of the interior in Bhutan?

3. the ADMIRALTY AND MARITIME COURTS OF THE WORLD AND THEIR SEALS

4. the POLITICAL CONSTITUTION AND HISTORY OF THE PHILIPPINES—court must

take a judicial notice of this because we are Filipinos and judges are considered learned
men. The requirement here is notoriety; it must be of national knowledge and
significance. In other words, it must be historical to the whole country and not just to a
single town or locality. We do not need a historian to prove what is a national significant
event.

MUNICIPAL BOARD V. AGUSTIN

November 29, 1997

ISSUE: WON Sakdalista party is one where the court may take judicial notice of.

Assuming without deciding that courts may take notice of the existence of
the Sakdalista organization at one time or another, as matter of contemporary social and

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political history, the date of its organization or the time of its birth for the
purposes of the application of the Election Law cannot be said to be of public knowledge.
This information is not available from printed books, records or current literature. And
though the judge himself or some other persons may known exactly when the Sakdalista
Party came of public knowledge. A matter may be personally known to the judge and yet
not be a matter of judicial knowledge and, vice versa, a matter may not be actually
known to an individual judge and, nevertheless, be a proper subject of judicial
cognizance. If courts may take judicial notice of the organization of the Sakdalista Party,
they may and should take equal notice of the dates of the organization of all the other
component political organizations. In the present case, where priority of organization is a
material element for purposes of political representation on the board of inspectors, this
fact must be proved and satisfactorily established.

5. the OFFICIAL ACTS OF LEGISLATIVE, EXECUTIVE AND JUDICIAL DEPARTMENTS

OF THE PHILIPPINES

Official acts of the LEGISLATIVE department;

What do we take judicial notice of?

1.LAWS as to WON laws are abrogated or laws passed in 1920s are still good
laws.
2.Reports of senate committees
3.Congressional debates
4.Impeachment trial –they are still acting as a legislative department although
performing a judicial function.

How about their decision on the impeachment? Can court take it as a judicial
precedent? That’s still a grey area.

UY V. CONTRERAS
September 26, 1994

Nature of case: Refers to a judge who did not know that LCG of 1991 was passed
by Congress. (Judicial ignorance!)

Respondent judge did not do any better. His total unawareness of the Local
Government Code of 1991, more specifically on the provisions on the Katarungang
pambarangay, is distressing. He should have taken judicial notice thereof, ever
mindful that under Section 1, Rule 129 of the Rules of Court, courts are
mandatorily required to take judicial notice of "the official acts of the legislative,
executive and judicial departments of the Philippines." We have ruled that a judge
is called upon to exhibit more than just a cursory acquaintance with the statutes
and procedural rules. 21 He should have applied the revised katarungang
pambarangay law under the Local Government Code of 1991. Had he done so,
this petition would not have reached us and taken valuable attention and time
which could have been devoted to more important cases.

CHAVEZ V. PEA
November 11, 2003

Case: In this case, the court takes judicial notice that two Senate Committees, the
Senate Blue Ribbon Committee and the Committee on Accountability of Public
Officers, conducted extensive public hearings to determine the actual market value
of the public lands sold to the private entity. They took judicial notice of these
reports. The Senate Committees established the clear, indisputable and
unalterable fact that the sale of the public lands is grossly and unconscionably

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undervalued based on official documents submitted by the proper government

agencies during the Senate investigation.

Official acts of the EXECUTIVE department; judicial notice

Article VII section 1. The executive power shall be vested in the President of the
Philippines.

We talk about not only the acts of the President as well as his alter-egos. There are
executive acts like Admin Orders, Department orders, proclamation etc.

Who grants Pardon? President.

Can the court take judicial notice of a pardon? NO. It may seem as an official act
but it is a private act. That’s one of the big differences between pardon and
amnesty.

PEOPLE V. CASIDO
G.R. No. 116512. March 7, 1997

Pardon is granted by the Chief Executive and as such it is a private act which must
be pleaded and proved by the person pardoned, because the courts take no notice
thereof; while amnesty by Proclamation of the Chief Executive with the
concurrence of Congress, and it is a public act of which the courts should take
judicial notice.

Pardon is granted to one after conviction; while amnesty is granted to classes of

persons or communities who may be guilty of political offenses, generally before or
after the institution of the criminal prosecution and sometimes after conviction.

Pardon looks forward and relieves the offender from the consequences of an
offense of which he has been convicted, that is, it abolished or forgives the
punishment, and for that reason it does ""nor work the restoration of the rights to
hold public office, or the right of suffrage, unless such rights be expressly restored
by the terms of the pardon," and it "in no case exempts the culprit from the
payment of the civil indemnity imposed upon him by the sentence" article 36,
Revised Penal Code). while amnesty looks backward and abolishes and puts into
oblivion the offense itself, it so overlooks and obliterates the offense with which he
is charged that the person released by amnesty stands before the law precisely as
though he had committed no offense.

How about acts of the LTFRB acting in its legislative rate fixing capacity or quasi
judicial capacity? Can court take judicial notice of this? YES, under the alter ego
doctrine.

SANADO VS COURT OF APPEALS

April 17, 2001

The action of an administrative agency in granting or denying, or in suspending or

revoking, a license, permit, franchise, or certificate of public convenience and
necessity is administrative or quasi-judicial. The act is not purely administrative but
quasi-judicial or adjudicatory since it is dependent upon the ascertainment of facts
by the administrative agency, upon which a decision is to be made and rights and
liabilities determined. As such, the July 31, 1989 decision of the Office of the
President is explicitly an official act of and an exercise of quasi-judicial power by

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the Executive Department headed by the highest officer of the land. It thus
squarely falls under matters relative to the executive department which courts are
mandatorily tasked to take judicial notice of under Section 1, Rule 129 of the Rules
of Court. Judicial notice must be taken of the organization of the Executive
Department, its principal officers, elected or appointed, such as the President, his
powers and duties

Judicial notice of the JUDICIAL department;

What are acts of judicial department?

Cases decided by SC, Rules of court, etc. Courts must take judicial notice of cases
decided by SUPREME COURT but not their applicability. They cannot
automatically apply it coz WON to apply a ruling to a controversy is subject to the
court’s discretion. , reliance must be had to the facts of the case.

How about decisions of the lower courts? Should MTC take judicial notice of cases
decided by the RTC or CA?

NO. For the purpose of section 1, decisions of the lower courts are not given
judicial notice.

6. the LAWS OF NATURE

One of the most celebrated decisions in the laws of nature is the Almanac case, a
farmer’s almanac. This refers to the seasons. The star witness was a farmer who
saw the assailant at 150 feet and he said the moon was full and shining..from that,
the accused was convicted of murder. Lincoln, on appeal came into the picture and
he knew that if he will be able to destroy the testimony of this farmer, the accused
will be acquitted. He presented the farmer’s almanac by which the accused was
acquitted.

THE OLD FARMER’S ALMANAC CASE

The occasion depicted in the Rockwell painting is the 1858 murder trial of an
Illinois man named William "Duff" Armstrong. Armstrong was accused of murdering
James Preston Metzker with a "slung-shot"—a weight tied to a leather thong, sort
of an early blackjack—a few minutes before midnight of August 29, 1857. Lincoln
was a friend of the accused man's father, Jack Armstrong, who'd just died, and so
he offered to help defend young Duff Armstrong, without pay, as a favor to Jack
Armstrong's widow.

The principal prosecution witness against Armstrong was a man named Charles
Allen, who testified that he'd seen the murder from about 150 feet away. When
Lincoln asked Allen how he could tell it was Armstrong given that it was the middle
of the night and he was a considerable distance away from the murder scene, Allen
replied, "By the light of the Moon."

Upon hearing Allen's testimony, Lincoln produced a copy of the 1857 edition,
turned to the two calendar pages for August, and showed the jury that not only was
the moon in the first quarter but it was riding "low" on the horizon, about to set, at
the precise time of the murder. There would not have been enough light for Allen to
identify Armstrong or anyone else, said Lincoln. The jury agreed, and Duff
Armstrong was acquitted.

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Court took judicial notice of the laws of nature. There would not have been enough
light for Allen to identify the accused.

We have a Philippine counterpart! 

PEOPLE VS MENESES
G.R No. 111742. March 26, 1998

It was established that the crime took place in the wee hours of the morning, before
the crack of dawn, at around three o’clock. The court can take judicial notice of the
“laws of nature”, such as in the instant case, that at around three in the morning
during the Christmas season, it is still quite dark and that daylight comes rather late
in this time of year. Nowhere in the description of the crime scene by witness SPO3
Mendoza in his testimony was it established that there was light or illumination of
any sort by which Christopher could see the attacker.

Can taking judicial notice of the laws of nature overrule positive testimony by
the witness? YES.

GABRIEL V. CA
G.R. No. 128474 October 6, 2004

What was his testimony? He claimed to have first heard the collision. He
immediately took five big steps onto the highway, and then saw the Beetle and the
jeepney colliding.

What’s wrong? He heard the sound before he saw the collision!

HELD: The testimony of Gonzales, which conveniently corroborates Gabriel on all

material points, is even more incredulous, notwithstanding Gonzales’s being the
Barangay Captain then of San Vicente, where the accident occurred. As noted by
the RTC, Gonzales declared that he was on the shoulder of the road, beside the
truck, when the first collision took place. From his vantage point, his view was
obstructed by the truck. He claimed to have first heard the collision. He
immediately took five big steps onto the highway, and then saw the Beetle and the
jeepney colliding. In short, the sound of the collision took place before the actual
collision itself. If true, this would rate as one of the greatest scientific revelations of
all time. But since courts are obliged to take judicial notice of the laws of nature,
this Court prefers to side with prudence.

7. the MEASURE OF TIME, and the

8. GEOGRAPHICAL DIVISIONS—Cities, municipalities, Barangays, sitios, rivers, etc.

PEOPLE V. SEVILLENO
March 29, 1999

The court below also erred in disregarding the testimony of Norma Baquia "for the
reason that her testimony failed to establish that the incident happened within the
territorial jurisdiction of this court." The court did not consider her testimony
purportedly because she only testified that her sister Virginia went with the
accused to Guindali-an without specifying as to what municipality or city it was part
of. Again, this is error. Section 1, Rule 129 of the Rules of Court requires courts to
take judicial notice, without the introduction of evidence, of the existence and
geographical divisions of our country. There is only one Sitio Guindali-an, Brgy.
Guadalupe, San Carlos City (Negros Occidental).

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CHIONGBAN-OLIVA VS REPUBLIC OF PHILIPPINES

April 27, 2007

SC takes judicial notice that Talamban, Cebu City is an urban area.

Judicial notice as to WON river is navigable;

BANATAO V. DABBAY
September 23, 1918 G.R. No. 12264

In conformity with the principle thus stated the courts may take judicial notice of the
existence and location within the territory over which they exercise jurisdiction of
great rivers and lakes, and their relation to the national or provincial boundaries, of
the navigability of streams constituting highways of commerce and other notorious
facts concerning the same. The presumption of general knowledge weakens as we
pass to smaller and less known streams; and yet, within the limits of any state the
navigability of its largest rivers ought to be generally known and the courts may
properly assume it to be a matter of general knowledge, and take judicial notice
thereof.

PEOPLE V. PACABES
June 24, 1985

The failure of a witness to report at once to the police authorities the crime they
had witnessed should not be taken against them. it is not uncommon for a witness
to a crime to show some reluctance about getting involved in a criminal case. The
natural reticence of most people to get involved in a criminal case is of judicial
notice.

Note: in one case, SC said that women are more fastidious than men. This was
relevant because the issue was WON to award damages to a woman who was
scarred in her face.

HERRERA V. BOLLOS
JANUARY 18 2002

A court cannot take judicial notice of a factual matter in controversy. (coz that is
already tantamount to ruling!) The court may take judicial notice of matters of
public knowledge, or which are capable of unquestionable demonstration, or ought
to be known to judges because of their judicial functions. Before taking such
judicial notice, the court must "allow the parties to be heard thereon."Hence, there
can be no judicial notice on the rental value of the premises in question without
supporting evidence. ( here, the RTC awarded damages based on the allegation,
no proof were presented as to the alleged rent value)

Can a court take judicial notice of decision rendered by an RTC but of a different case?
NO. it has to be proven.

ESPANOL V. FORMOSO
JUNE 21 2007

Courts are not authorized to take judicial notice of the contents of records of other cases
even when such cases have been tried or pending in the same court.

Remember: judicial knowledge is different from judicial notice.

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PIGAO V. RABANILLO
GR 1570712

SC had the occasion to lay down the requisites of the matters of judicial notice. What is
involved here is pro-forma contract.

HELD: We cannot take cognizance of this document – the conditional contract to sell
between Bernabe and the PHHC alleged to be the pro-forma contract used by PHHC
with its applicants - which petitioners are presenting for the first time.

Matters of judicial notice have three material requisites:

(1) the matter must be one of common and general knowledge;
(2) it must be well and authoritatively settled and not doubtful or uncertain; and
(3) it must be known to be within the limits of jurisdiction of the court.

The power of taking judicial notice is to be exercised by courts with caution. Care must
be taken that the requisite notoriety exists and every reasonable doubt on the subject
should be promptly resolved in the negative.

REPUBLIC V. CA
AUGUST 18 1997

This was about taking judicial notice of a decision by other courts over the same subject.

“A court will take judicial notice of its own acts and records in the same case, of facts
established in prior proceedings in the same case, of the authenticity of its own records
of another case between the same parties, of the files of related cases in the same court,
and of public records on file in the same court. In addition judicial notice will be taken of
the record, pleadings or judgment of a case in another court between the same parties or
involving one of the same parties, as well as of the record of another case between
different parties in the same court. Judicial notice will also be taken of court personnel.

What is the effect of judicial notice when there is really no justiciable controversy?

PROV OF NORTH COTABATO V. GOVERNMENT OF THE PHIL PEACE PANEL

October 14, 2008

RE: Peace Negotiation Document MOA about having a Bangsamoro homeland entered
by executive department but not yet signed.

The MOA has not even been signed, and will never be. Its provisions will not at all come
into effect. The MOA will forever remain a draft that has never been finalized. It is now
nothing more than a piece of paper, with no legal force or binding effect. It cannot be the
source of, nor be capable of violating, any right. The instant Petitions, therefore, and all
other oppositions to the MOA, have no more leg to stand on. They no longer present an
actual case or a justiciable controversy for resolution by this Court.

In the recent ruling in Suplico v. NEDA, the President officially desisted from pursuing a
national government project which was challenged before this Court. The Court was
impelled to take mandatory judicial notice of the President's act, and consequently
declare the pending petitions as moot and academic.

Section 2. Judicial notice, when discretionary. — A court may take judicial notice of matters
which are of public knowledge, or are capable to unquestionable demonstration, or ought to be
known to judges because of their judicial functions.

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This is termed discretionary because it fully depends upon the discretion of the court unless a
matter falls in section 1 where nobody can compel a judge to take JN of the same. Section 2
judicial notice could not be compelled by mandamus.

SALUDO V. American Express International

April 19, 2006

What was construed was the concept of “facts of common knowledge”. SC took judicial
notice of the residence of the petitioner in Southern Leyte. Petitioner here is a politician.

The concept of "facts of common knowledge" in the context of judicial notice has been
explained as those facts that are "so commonly known in the community as to make it
unprofitable to require proof, and so certainly known to as to make it indisputable
among reasonable men." Moreover, "though usually facts of 'common knowledge' will be
generally known throughout the country, it is sufficient as a basis for judicial notice that
they be known in the local community where the trial court sits." Certainly, the fact of
petitioner Saludo being the duly elected representative of Southern Leyte at the time
could be properly taken judicial notice of by the court a quo, the same being a matter of
common knowledge in the community where it sits.

That petitioner Saludo was the congressman or representative of the lone district of
Southern Leyte at the time of the filing of his complaint was admitted as a fact by the
court a quo. In this connection, it consequently held that, as such, petitioner Saludo's
residence in Southern Leyte, the district he was the representing, could be taken judicial
notice of. The court a quo cannot be faulted for doing so because courts are allowed "to
take judicial notice of matters which are of public knowledge, or are capable of
unquestionable demonstration, or ought to be known to judges because of their judicial
functions." Courts are likewise bound to take judicial notice, without the introduction of
evidence, of the law in force in the Philippines, including its Constitution.

STATE PROSECUTOR V. MURO

A.M. No. RTJ-92-876 September 19, 1994

The judge dismissed 11 cases against Imelda Marcos for violation of Violation of Central
Bank Foreign Exchange Restrictions. Judge issued his Order solely on the basis of
newspaper reports (August 11, 1992 issues of the Philippine Daily Inquirer and the Daily
Globe) concerning the announcement on August 10, 1992 by the President of the
Philippines of the lifting by the government of all foreign exchange restrictions. He
claimed that the reported announcement of the Executive Department on the lifting of
foreign exchange restrictions by two newspapers which are reputable and of national
circulation had the effect of repealing Central Bank Circular No. 960, as allegedly
supported by Supreme Court decisions.

HELD: The requisites of Judicial notice must be applied here.

Generally speaking, matters of judicial notice have three material requisites: (1) the
matter must be one of common and general knowledge; (2) it must be well and
authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within
the limits of the jurisdiction of the court. 11 The provincial guide in determining what facts
may be assumed to be judicially known is that of notoriety. 12 Hence, it can be said that
judicial notice is limited to facts evidenced by public records and facts of general
notoriety.

To say that a court will take judicial notice of a fact is merely another way of saying that
the usual form of evidence will be dispensed with if knowledge of the fact can be

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otherwise acquired. 14 This is because the court assumes that the matter is so
notorious that it will not be disputed. But judicial notice is not judicial knowledge. The
mere personal knowledge of the judge is not the judicial knowledge of the court, and he
is not authorized to make his individual knowledge of a fact, not generally or
professionally known, the basis of his action. Judicial cognizance is taken only of those
matters which are "commonly" known.

Things of "common knowledge," of which courts take judicial notice, may be matters
coming to the knowledge of men generally in the course of the ordinary experiences of
life, or they may be matters which are generally accepted by mankind as true and are
capable of ready and unquestioned demonstration.

(this ruling underscores the difference between a court and the judge. Because the personal
knowledge of the judge could not be considered judicial knowledge of the court)

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

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

Note: in this case, court is not really taking judicial notice because ti allows the parties will be
heard. If they do so, parties will introduce evidence. So to my mind, section 3 does not really refer
to judicial notice.

Example: would you take judicial notice that I am 25yrs old? NO.

When you take judicial notice of the physical appearance of a person, are you really
exercising judicial notice or just exercising your sense? When you do that, you are NOT taking
judicial notice because you are actually examining evidence and you are using your perception of
things derived form the use of your senses. So court will not say that the court takes JN that the
court smells bed.

Atty. Espejo: matters such as age, physical characteristics are not subject to judicial notice in so
far as it involves the use of our perception of things through our senses.

Why is age important to be taken judicial notice of?

One thing is with your criminal law. Cases of RAPE. Either qualified or statutory rape. So
it is important to determine age. For example, if a counsel would take or ask court to take judicial
notice of a victim in a rape case, is the court allowed? NO. by doing so, it would still require
presentation of evidence and use of senses. It is not taking judicial notice.

LANDBANK OF THE PHILIPPINES V. WYCOCO

JANUARY 13 2004

In arriving at the valuation of Wycoco’s land, the trial court took judicial notice of the
alleged prevailing market value of agricultural lands in Licab, Nueva Ecija without
apprising the parties of its intention to take judicial notice thereof.

In as much as the valuation of the property of Wycoco is the very issue in the case at bar,
the trial court should have allowed the parties to present evidence thereon instead of
practically assuming a valuation without basis. While market value may be one of the

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bases of determining just compensation, the same cannot be arbitrarily

arrived at without considering the factors to be appreciated in arriving at the fair market
value of the property e.g., the cost of acquisition, the current value of like properties, its
size, shape, location, as well as the tax declarations thereon. Since these factors were
not considered, a remand of the case for determination of just compensation is
necessary.

The power to take judicial notice is to be exercised by courts with caution especially
where the case involves a vast tract of land. Care must be taken that the requisite
notoriety exists; and every reasonable doubt on the subject should be promptly resolved
in the negative. To say that a court will take judicial notice of a fact is merely another way
of saying that the usual form of evidence will be dispensed with if knowledge of the fact
can be otherwise acquired. This is because the court assumes that the matter is so
notorious that it will not be disputed. But judicial notice is not judicial knowledge. The
mere personal knowledge of the judge is not the judicial knowledge of the court, and he
is not authorized to make his individual knowledge of a fact, not generally or
professionally known, the basis of his action

REMEMBER: judicial notice is not the general rule. It is an exception.

JUDICIAL NOTICE ON AGE

What is the nature of AGE as evidence?

You don’t know exactly when you are born. It is something that is told to you. So hearsay
evidence xa. Because it is technically hearsay, no person can claim personal knowledge of his
age but however, you will later learn that this is an EXCEPTION to the hearsay rule because it
forms part of Family history and Pedigree.

Would age have certain consequences in criminal cases? YES.

Age is important because it may be an

 exempting circumstance
 mitigating circumstance
 aggravating circumstance
 qualifying circumstance –qualified rape if victim below 7 or below 18 and accused is a
relative of the victim
 as an element of the crime itself ex. Statutory rape

Age sometimes is a fact in issue that has to be proven for the full appreciation of the court. It has
to be proven because there are certain legal consequences.

By way of summary, If victim below 18—qualified ang rape if offender is a relative. If below 12—
rape is committed although not qualified form even if victim consents because age is an
indispensable requirement. If below 7—rape is always qualified!

PEOPLE V. GUINTO
March 5, 2003

When the trier of facts observes the appearance of a person to ascertain his or her age,
he is not taking judicial notice of such fact; rather, he is conducting an examination of
the evidence, the evidence being the appearance of the person. Such a process
militates against the very concept of judicial notice, the object of which is to do away with
the presentation of evidence.

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This is not to say that the process is not sanctioned by the Rules of Court; on the
contrary, it does. A person's appearance, where relevant, is admissible as object
evidence, the same being addressed to the senses of the court.

What is the most important evidentiary rule when it comes to taking judicial notice of age?

PEOPLE V. VILLARAMA ALIAS BABY

G.R. No. 139211. February 12, 2003

Court decisions on the rape of minors invariably state that, in order to justify the
imposition of the death penalty, there must be independent evidence showing the age of
the victim. Testimonies on the victim’s age given by the prosecution witnesses or the lack
of denial of the accused or even his admission thereof on the witness stand is not
sufficient. This Court has held that, to justify the imposition of the death penalty for rape
committed against a child below 7, the minority of the victim must be proved with equal
certainty and clarity as the crime itself. The failure to sufficiently establish the victim’s age
with factual certainty and beyond reasonable doubt is fatal and consequently bars
conviction for rape in its qualified form.

How do you prove age as an element of the crime or if court cannot take judicial notice
thereof or there is really no clear cut evidence on the matter?

PEOPLE V. PRUNA
G.R. No. 138471. October 10, 2002

A person’s age is best proved by the birth certificate. But is the presentation of the
victim’s birth certificate a sine qua non requirement to prove her age for the appreciation
of minority either as an element of the crime or as a qualifying circumstance? Recent
jurisprudence has conflicting pronouncements.

In order to remove any confusion that may be engendered by the foregoing cases, we
hereby set the following guidelines in appreciating age, either as an element of the crime
or as a qualifying circumstance.

1. The best evidence to prove the age of the offended party is an original or
certified true copy of the certificate of live birth of such party.
2. In the absence of a certificate of live birth, similar authentic documents such as
baptismal certificate and school records which show the date of birth of the victim
would suffice to prove age.
3. If the certificate of live birth or authentic document is shown to have been lost or
destroyed or otherwise unavailable, the testimony, if clear and credible, of the
victim’s mother or a member of the family either by affinity or consanguinity who
is qualified to testify on matters respecting pedigree such as the exact age or
date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules
on Evidence shall be sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be

proved is that she is less than 7 years old;
b. If the victim is alleged to be below 7 years of age and what is sought to be
proved is that she is less than 12 years old;
c. If the victim is alleged to be below 12 years of age and what is sought to be
proved is that she is less than 18 years old.

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4. In the absence of a certificate of live birth, authentic document, or the testimony

of the victim’s mother or relatives concerning the victim’s age, the complainant’s
testimony will suffice provided that it is expressly and clearly admitted by the
accused.
5. It is the prosecution that has the burden of proving the age of the offended
party. The failure of the accused to object to the testimonial evidence regarding
age shall not be taken against him.

The trial court should always make a categorical finding as to the age of the victim.

In the present case, no birth certificate or any similar authentic document, such as a
baptismal certificate of LIZETTE, was presented to prove her age.

In view of the uncertainty of LIZETTE’s exact age, corroborative evidence such as her
birth certificate, baptismal certificate or any other authentic document should be
introduced in evidence in order that the qualifying circumstance of “below seven (7) years
old” is appreciated against the appellant.

The lack of objection on the part of the defense as to her age did not excuse the
prosecution from discharging its burden. That the defense invoked LIZETTE’s tender
age for purposes of questioning her competency to testify is not necessarily an
admission that she was below 7 years of age when PRUNA raped her on 3 January
1995. Such being the case, PRUNA cannot be convicted of qualified rape, and hence
the death penalty cannot be imposed on him.

JUDICIAL ADMISSIONS
Section 4. Judicial admissions. — An admission, verbal or written, made by the party in the
course of the proceedings in the same case, does not require proof. The admission may be
contradicted only by showing that it was made through palpable mistake or that no such
admission was made.

Definition

Judicial admission is defined as deliberate, clear, unequivocal statement by a party about

a concrete fact within that party's knowledge.

It is also called as “admission in judicio”. It must be deliberate because an admission will

not bind the party making it if it was made by mistake. It must be clear and unequivocal and it
must not admit to two or more interpretations.

What is the nature of judicial admission?

It is a confession whether in the pleadings or stipulations that can be made by counsel or

the party. Although a judicial admission is not itself evidence, it has the effect of withdrawing a
fact from contention.

A judicial admission is a formal statement made either by a party or his or her attorney, in
the course of judicial proceeding which removes an admitted fact from the field of controversy. It
is a voluntary concession of fact by a party or a party’s attorney during such judicial proceedings
including admissions in pleadings made by a party. It may occur at any point during the litigation
process. An admission in open court is a judicial admission. A judicial admission binds the client
even if made by his counsel.

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“Confessio facta in judicio omni probatione major est” - A confession made in trial is stronger than
proof.

JUDICIAL ADMISSION V. JUDICIAL ESTOPPEL;

Judicial estoppel is a rule of procedure based on justice and sound policy that bars a party from
taking a position inconsistent with one taken in a earlier proceeding. A judicial admission, by
contrast, results when a party makes a statement of fact which conclusively disproves a right of
recovery or defense currently asserted.

JUDICIAL ADMISSION V. ORDINARY EVIDENTIARY ADMISSION

An ordinary evidentiary admission is "merely a statement of assertion or concession made for

some independent purpose," and it may be controverted or explained by the party who made it.
"A judicial admission is conclusive, unless the court allows it to be withdrawn; ordinary
evidentiary admissions, in contrast, may be controverted or explained by the party.

What are the SOURCES of judicial admission?

BINARAO V. PLUS BUILDERS

G.R. No. 154430 June 16, 2006

A party may make judicial admissions in

(a) the pleadings,
(b) during the trial, either by verbal or written manifestations or stipulations, or
(c) in other stages of the judicial proceeding

What is an example of a judicial admission IN A PLEADING.

1. Rule 8 Section 8

Section 8. How to contest such documents. — When an action or defense is

founded upon a written instrument, copied in or attached to the corresponding pleading
as provided in the preceding section, the genuineness and due execution of the
instrument shall be deemed admitted unless the adverse party, under oath specifically
denies them, and sets forth what he claims to be the facts, but the requirement of an oath
does not apply when the adverse party does not appear to be a party to the instrument or
when compliance with an order for an inspection of the original instrument is refused.

Diba the reply is not a mandatory pleading? But if the defendant attaches an actionable
document, you have to deny it under oath. You are forced to submit a reply rather than
make it optional

CASENT REALTY VS PHILBANKING CORPORATION

September 14, 2007

Since respondent failed to file a Reply, in effect, respondent admitted the genuineness
and due execution of said documents. This judicial admission should have been
considered by the appellate court in resolving the demurrer to evidence.

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2. Rule 8, Section 11. Allegations not specifically denied deemed admitted. —

Material averment in the complaint, other than those as to the amount of unliquidated
damages, shall be deemed admitted when not specifically denied. Allegations of usury in
a complaint to recover usurious interest are deemed admitted if not denied under oath.

3. Rule 18 Section 4. Appearance of parties. — It shall be the duty of the parties and their
counsel to appear at the pre-trial. The non-appearance of a party may be excused only if
a valid cause is shown therefore or if a representative shall appear in his behalf fully
authorized in writing to enter into an amicable settlement, to submit to alternative modes
of dispute resolution, and to enter into stipulations or admissions of facts and of
documents.

Can you have stipulations of facts or admissions in pre-trials in criminal case? YES.
Because that is also one of the objects of a pre-trial conference.

So judicial admissions can therefore be derived at any stage of the case. During pre-trial, during
the trial, during the proceedings, in the process of submitting motions and manifestations.

If the lawyer makes admission in a manifestation or pleading and the client did not sign the
admission, is the client bound by the admission? Yes.

What is the form of judicial admission?

A judicial can be either a verbal or written admission. Verbal judicial admission—may

be oral manifestations in the court or testimony. A written judicial admission—may be by way of
pleadings, memoranda, affidavits or even in a submission in an answer for a request for
admission.

Can it be partly in writing and by word of mouth? YES.

Can it be implied from the conduct of parties? YES. (ikaw ang nipatay! But you nodded! So
pwede!)

What is the effect of making admission? It becomes conclusive upon the parties making them.

SANTIAGO VS DELOS SANTOS

61 scra 146

an admission made in the pleadings cannot be controverted by the party making such
admission and are conclusive as to him, and that all proofs submitted by him contrary
thereto or inconsistent therewith, should be ignored, whether objection is interposed by
the party or not.

(ni-admit naka tpos musubmit ka after ug contrary evidence. In this case, the
admission will prevail)

ALFELOR V. HALASAN
March 31, 2006 GR 165987

NATURE: It takes up concept of judicial admission but also intervention.

Likewise, when called to testify, Teresita admitted several times that she knew that her
late husband had been previously married to another. To the Court’s mind, this admission

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constitutes a "deliberate, clear and unequivocal" statement; made as it was in

the course of judicial proceedings, such statement qualifies as a judicial admission. A
party who judicially admits a fact cannot later challenge that fact as judicial admissions
are a waiver of proof; production of evidence is dispensed with. A judicial admission also
removes an admitted fact from the field of controversy. Consequently, an admission
made in the pleadings cannot be controverted by the party making such admission and
are conclusive as to such party, and all proofs to the contrary or inconsistent therewith
should be ignored, whether objection is interposed by the party or not. 2 The allegations,
statements or admissions contained in a pleading are conclusive as against the pleader.
A party cannot subsequently take a position contrary of or inconsistent with what was
pleaded.

There is this REQUIREMENT:

REPUBLIC V. QUA
July 30, 2004

To constitute judicial admission, the admission must be made in the same case in which
it is offered. If made in another case or in another court, the fact of such admission must
be proved as in the case of any other fact, although if made in a judicial proceeding it is
entitled to greater weight.

Let’s look at TYPES OF ADMISSIONS

1. Judicial
2. Extra-judicial—out of court

In open court, I admit nga nangutang ko—admitted; so plaintiff does not have to prove that
nangutang. That’s a judicial admission. If made in the pleading, it is still judicial admission. But
what if an admission you made casually? Sa corridor sa ateneo? That is extra-judicial. So if your
friend is called to testify regarding your supposed admission? As a general admission, that is
considered an extrajudicial admission and must then be proven. But is that considered as
hearsay evidence? YES. Because dapat ako man ang source sa information. Dapat dili xa ang
mag-testify! Wala man xang personal knowledge. You will learn that all later on.

What about an admission made in a court sala with the same parties but with cases
pending in different salas?

NO. because that is not in the same case even if made in the same court.

Now, EXTRA JUDICIAL ADMISSIONS must be produced into evidence. In other words, you have
to prove, so section 4 does NOT apply. Coz if you apply section 4, dapat judicial admission. It
takes the fact out of contention.

What if he admitted something in one sala but in a different sala, he denied the same
thing? What can you do? These cases are interrelated. Can you not file a case for false
testimony or perjury?
YES, you can.

What is the effect of amended pleadings?

Rule 10 Section 8. Effect of amended pleadings. — An amended pleading supersedes

the pleading that it amends. However, admissions in superseded pleadings may be received in
evidence against the pleader, and claims or defenses alleged therein not incorporated in the
amended pleading shall be deemed waived.

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So if you make an admission in an original pleading and later on amended, the

judicial admission will now become an extra-judicial admission.

What is the effect of filing a supplemental pleading? It supplements and both pleadings stand
side by side.

What are the EXCEPTIONS TO THE RULE ON JUDICIAL ADMISSIONS?

1. If the judicial admission is made through palpable mistake

Palpable—it means obvious or easily perceived or examinable or noticeable; palpalabe

mistakes are mistakes obvious error to all sides, mistakes that glaring to the eyes of the
judge so that adverse party can see that there was really no admission made.

Under the old rules of evidence, this is only the exception to the rule that admissions bind
the party to the agreement. (ATLAS CONSOLIDATED MINING V. CIR)

Atty. Espejo: nabangga ka sa motor. Unsa man ka kalayo nalagpot? 50 meters! That’s an
admission. It admits a fact na nilagpot xa ug 50 meters. Well, it is contrary to laws of nature! It’s
contrary to physics! it is a palpable mistake. It is possible that the witness is so not well-versed
with distance and failed to properly measure the same.

ATLAS CONSOLIDATED MINING VS CIR

NOVEMBER 17, 1999

A litigation is neither a game of technicalities nor a battle of wits and legalisms; rather, it
is an abiding search for truth, fairness and justice. While stipulations of facts are normally
binding on the declarant or the signatory thereto, a party may nonetheless be allowed to
show that an admission made therein was the result of a "palpable mistake" that can be
easily verified from the stipulated facts themselves and from other incontrovertible pieces
of evidence admitted by the other party. A patently clerical mistake in the stipulation of
facts, which would result in falsehood, unfairness and injustice, cannot be countenanced.

We agree with the Court of Appeals that, as a rule, a judicial admission, such as that
made by petitioner in the Joint Stipulation of Facts, is binding on the declarant. However,
such rule does not apply when there is a showing that (1) the admission was made
through a "palpable mistake," or that (2) "no such admission was made.

In the present case, we are convinced that a "palpable mistake" was committed. True,
petitioner was VAT-registered under Registration No. 32-A-6-00224, as indicated in Item
2 of the Stipulation:

2. Petitioner is engaged in the business of mining, production and sale of various

mineral products, consisting principally of copper concentrates and gold duly
registered with the BIR as a VAT enterprise per its Registration No. 32-A-6-
002224 (p. 250, BIR Records).

Moreover, the Registration Certificate, which in the said stipulation is alluded to as

appearing on page 250 of the BIR Records, bears the number 32-0-004622 and became
effective August 15, 1990. But the actual VAT Registration Certificate, which petitioner
mentioned in the stipulation, is numbered 32-A-6-002224 and became effective on
January 1, 1988, thereby showing that petitioner had been VAT-registered even prior to

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the first quarter of 1990. Clearly, there exists a discrepancy, since the VAT
registration number stated in the joint stipulation is NOT the one mentioned in the actual
Certificate attached to the BIR Records.

The foregoing simply indicates that petitioner made a "palpable mistake" either in
referring to the wrong BIR record, which was evident, or in attaching the wrong VAT
Registration Certificate. The Court of Appeals should have corrected the unintended
clerical oversight. In any event, the indelible fact is: the petitioner was VAT-registered as
of January 1, 1988.

Note: LATER ON, SC added another exception.

3. No such admission was made

PALMA DEVELOPMENT CORP. VS MUNICIPALITY OF MALANGAS

G.R. No. 152492 October 16, 2003

Judicial admissions made by parties in the pleadings, in the course of the trial, or in other
proceedings in the same case are conclusive. No further evidence is required to prove
them. Moreover, they cannot be contradicted unless it is shown that they have been
made through palpable mistake, or that they have not been made at all.

This was just an illustration that no such admission was made.

ATILLO VS CA
GR. NO. 119053. JANUARY 23, 1997

"For instance, if a party invokes an 'admission' by an adverse party, but cites the admission
'out of context', then the one making the admission may show that he made no 'such'
admission, or that his admission was taken out of context or not in the sense in which the
admission was made to appear.

RULE: if an admission is made by the counsel or lawyer, it binds the client. In the same manner
that negligence of lawyer binds his client. Same thing. If counsel makes an admission contrary to
his client, it will affect his client.

PEOPLE V. HERNANDEZ
July 30, 1996

Prosecution proposed certain stipulation of facts and accepted by the defense and on the
basis of which the accused was convicted.

the foregoing find basis in the general rule that a client is bound by the acts of his
counsel who represents him. For all intents and purposes, the acts of a lawyer in the
defense of a case are the acts of his client. The rule extends even to the mistakes and
negligence committed by the lawyer except only when such mistakes would result in
serious injustice to the client. No cogent reason exists to make such exception in this
case. It is worth noting that Atty. Ulep, appellant's counsel in the lower court, agreed to
the stipulation of facts proposed by the prosecution not out of mistake nor inadvertence,
but obviously because the said stipulation of facts was also in conformity to defense's
theory of the case. It may be recalled that throughout the entire duration of the trial,
appellant staunchly denied ever having engaged in the recruitment business either in her
personal capacity or through Philippine-Thai. Therefore, it was but logical to admit that
the POEA records show that neither she nor Philippine-Thai was licensed or authorized
to recruit workers.

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In view of the foregoing, the stipulation of facts proposed during trial by prosecution and
admitted by defense counsel is tantamount to a judicial admission by the appellant of the
facts stipulated on.

SILOT V. DELA ROSA

February 4, 2008

A stipulation of facts entered into by the prosecution and defense counsel during trial in
open court is automatically reduced into writing and contained in the official transcript of
the proceedings had in court.

The conformity of the accused in the form of his signature affixed thereto is unnecessary
in view of the fact that: "[…] an attorney who is employed to manage a party's conduct of
a lawsuit has prima facie authority to make relevant admissions by pleadings, by oral or
written stipulation, […] which unless allowed to be withdrawn are conclusive."

In fact, "judicial admissions are frequently those of counsel or of the attorney of record,
who is, for the purpose of the trial, the agent of his client. When such admissions are
made for the purpose of dispensing with proof of some fact, they bind the client, whether
made during, or even after, the trial.

What about the status pre trial agreements in criminal cases?

Remember, in the 1985 rules of Criminal procedure before its amendment in year 2000:

SEC. 4. Pre-trial agreements must be signed. — No agreement or admission made or

entered during the pre-trial conference shall be used in evidence against the accused unless
reduced to writing and signed by him and his counsel.

The rule now states that: the omission of the signature of the accused and his counsel, as
mandatorily required by the Rules, renders the Stipulation of Facts inadmissible in evidence.
(FULE V. CA)
FULE V. CA
G.R. No. 79094 June 22, 1988

The conclusion is inevitable, therefore, that the omission of the signature of the accused
and his counsel, as mandatorily required by the Rules, renders the Stipulation of Facts
inadmissible in evidence. The fact that the lawyer of the accused, in his memorandum,
confirmed the Stipulation of Facts does not cure the defect because Rule 118 requires
both the accused and his counsel to sign the Stipulation of Facts. What the prosecution
should have done, upon discovering that the accused did not sign the Stipulation of
Facts, as required by Rule 118, was to submit evidence to establish the elements of the
crime, instead of relying solely on the supposed admission of the accused in the
Stipulation of Facts. Without said evidence independent of the admission, the guilt of the
accused cannot be deemed established beyond reasonable doubt.

This is now embodied in Rule 118, section 2:

Sec. 2. Pre-trial agreement. – All agreements or admissions made or entered

during the pre-trial conference shall be reduced in writing and signed by the accused
and counsel, otherwise, they cannot be used against the accused. The agreements covering
the matters referred to in section 1 of this Rule shall be approved by the court.

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NOTE: Obiter in case of Silot v. de la rosa that only the conformity of the counsel is required is
deemed abrogated by the Fule Doctrine and subsequent enactment of 2000 Rules of Criminal
Procedure.

Same thing applied in the case of….

KING V. PEOPLE
December 2, 1999

From the foregoing, it is clear that the prosecution evidence consisted of documents
offered and admitted during the trial. In view of this, the CA correctly ruled that Fule v.
Court of Appeals[17] would not apply to the present controversy. In that case, a hearing
was conducted during which the prosecution presented three exhibits. However, Fule's
conviction was “based solely on the stipulation of facts made during the pre-trial on
August 8, 1985, which was not signed by the petitioner, nor by his counsel.” Because the
stipulation was inadmissible in evidence under Section 4 of Rule 118, the Court held that
there was no proof of his guilt.

In the present case, petitioner’s conviction was based on the evidence presented
during trial, and not on the stipulations made during the pretrial. Hence, petitioner’s
admissions during the trial are governed not by the Fule ruling or by Section 4 of Rule
118, but by

Section 4 of Rule 129 which reads:

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

Hence, the trial court and the Court of Appeals did not err in taking cognizance of
the said documentary evidence.

SAN PEDRO V. LEE

G.R. No. 156522. May 28, 2004

Rule 129, Section 4 of the Revised Rules of Court provides that a judicial admission may
be contradicted by showing that it was made through palpable mistake, or that no such
admission was made. Petitioner’s theory as regards the purported judicial admission is
readily contradicted by a perusal of the records, which show that in fact no such
admission was made by respondents. We thus find no adequate proof for petitioner’s
contention that she was exercising possessory rights over the parcel of land

PARAYNO V. JOVELLANOS
JULY 14, 2006

The foregoing were judicial admissions which were conclusive on the municipality, the
party making them.10 Respondent municipality thus could not find solace in the legal
maxim of ejusdem generis11 which means "of the same kind, class or nature." Under this
maxim, where general words follow the enumeration of particular classes of persons or
things, the general words will apply only to persons or things of the same general nature
or class as those enumerated.

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Instead, what applied in this case was the legal maxim expressio unius est
exclusio alterius which means that the express mention of one thing implies the exclusion
of others.13 Hence, because of the distinct and definite meanings alluded to the two terms
by the zoning ordinance, respondents could not insist that "gasoline service station"
under Section 44 necessarily included "gasoline filling station" under Section 21. Indeed,
the activities undertaken in a "gas service station" did not automatically embrace those in
a "gas filling station."

RULE 130
Rules of Admissibility
This tells the counsels and parties to the case what are the guidelines on the admission of
evidence that is to e considered later on.

A. OBJECT (REAL) EVIDENCE

SECTION 1. Object as evidence. — Objects as evidence are those addressed to the senses of
the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or
viewed by the court.

Object evidence is one of the classes of evidence provided in the Rules of Court. This is
also called “real evidence” because it has reference to the “res” or thing. It is a thing or the object
that is addressed to the senses of the court. It is also called “autoptic preference” which is coined
by Wigmore himself. “auto”—self; “optic” –sight or examination related to term ‘autopsy”. This
pertains to act of making an autoptic preference although now, it means examination of a dead
body. But now, “it means examination. Those are related.

BALINGIT V. COMELEC
G.R. No. 170300 February 9, 2007

Autoptic proference, in legal parlance, simply means a tribunal's self-perception, or

autopsy, of the thing itself.

Autoptic means Seen with one's own eyes; belonging to, or connected with, personal
observation; as, autoptic testimony or experience.

Once, however, autoptic evidence is introduced in a trial, then the fact finder decides
what weight shall be accorded to the same. in this class of evidence the ascertainment of
the controverted fact is made through demonstration involving the direct use of the
senses of the presiding magistrate.

CALDE V. CA
June 27, 1994

Facts: As sharply noted by respondent appellate court, the signatures of some attesting
witnesses in decedent’s will and its codicil were written in blue ink, while the others were
in black. This discrepancy was not explained by petitioner. Nobody of his six (6)

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witnesses testified that two pens were used by the signatories on the two
documents. In fact, two (2) of petitioner’s witnesses even testified that only one (1)
ballpen was used in signing the two testamentary documents.

In the case at bench, the autoptic proference contradicts the testimonial evidence
produced by petitioner. The will and its codicil, upon inspection by the respondent court,
show in black and white — or more accurately, in black and blue — that more than one
pen was used by the signatories thereto. Thus, it was not erroneous nor baseless for
respondent court to disbelieve petitioner’s claim that both testamentary documents in
question were subscribed to in accordance with the provisions of Art. 805 of the Civil
Code.

Neither did respondent court err when it did not accord great weight to the testimony of
Judge Tomas A. Tolete. It is true that his testimony contains a narration of how the two
testamentary documents were subscribed and attested to, starting from decedent’s
thumbmarking thereof, to the alleged signing of the instrumental witnesses thereto in
consecutive order. Nonetheless, nowhere in Judge Tolete’s testimony is there any kind of
explanation for the different-colored signatures on the testaments.

PEOPLE VS LAVAPIE
[G.R. No. 130209. March 14, 2001]

Greater credence is given to physical evidence as evidence of the highest order because
it speaks more eloquently than a hundred witnesses. As we have ruled in People vs.
Vasquez,[68] since the physical evidence on record runs counter to the testimonial
evidence of the prosecution witnesses, conclusions as to physical evidence should
prevail. It bears reiteration that physical evidence is that mute but eloquent
manifestations of truth which rate high in our hierarchy of trustworthy evidence. [69] In the
light of the physical evidence obtaining in this case, contrary to oral assertions cannot
normally prevail.

How do we classify object evidence?

1. That which consist in the production of evidence inside the courtroom.

Ex. Object of the crime—sachet in shabu, gun used in shooting, knife used to stab the
victim. So these are matters which are brought to court.

2. That which consist in the inspection outside the courtroom.

Ex. Ocular inspection in land cases or those objects which cannot be brought inside the
court room

3. Those that consist in experimentation.

Ex. Case of OJ simpson “experimented in fitting the gloves”

The O. J. Simpson murder case (officially called the People of the State of California v.
Orenthal James Simpson) was a criminal trial held in Los Angeles County, CaliforniaSuperior
Court that spanned from the primary jury being sworn in on November 2, 1994 [1] to opening
statements on January 24, 1995 [2] to a verdict on October 3, 1995. [3] FormerAmerican football star
and actor O. J. Simpson was tried on two counts of murder following the June 1994 deaths of his
ex-wife Nicole Brown Simpson and her friend Ronald Goldman. The case has been described as
the most publicized criminal trial in American history. [4]Ultimately, Simpson was acquitted after a
lengthy trial that lasted over nine months which was presided over by Judge Lance Ito.

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Simpson hired a high-profile defense team initially led by Robert Shapiro[6][7][8] and
subsequently led by Johnnie Cochran. Los Angeles County believed it had a solid prosecution
case, but Cochran was able to persuade the jurors that there was reasonable doubt about
the DNA evidence (then a relatively new type of evidence in trials) [9] – including that the blood-
sample evidence had allegedly been mishandled by lab scientists and technicians – and about
the circumstances surrounding other exhibits.[10] Cochran and the defense team also alleged
other misconduct by the Los Angeles Police Department. Simpson's celebrity and the
lengthy televised trial riveted national attention on the so-called "Trial of the Century". By the end
of the criminal trial, national surveys showed dramatic differences between most blacks and most
whites in terms of their assessment of Simpson's guilt.

Later, both the Brown and Goldman families sued Simpson for damages in a civil trial. On
February 6, 1997, a jury unanimously found there was a preponderance of evidence to hold
Simpson liable for damages in the wrongful death of Goldman and battery of Brown. [12]On
February 21, 2008, a Los Angeles court upheld a renewal of the civil judgment against him.

GLOVE
One dark leather glove was found at the crime scene, its match found near Kato Kaelin's guest
house behind Simpson's Rockingham Drive estate. [10] Kaelin testified that he had heard "thumps
in the night" in the same area around the guest house the night of the murder. [10] Brown had
bought Simpson two pairs of this type of glove in 1990. [10] Both gloves, according to the
prosecution, contained DNA evidence from Simpson, Brown and Goldman, with the glove at
Simpson's house also containing a long strand of blonde hair similar to Brown's.

On June 15, 1995, defense attorney Johnnie Cochran goaded assistant prosecutor Christopher
Darden into asking Simpson to put on the leather glove that was found at the scene of the crime.
The prosecution had earlier decided against asking Simpson to try on the gloves because the
glove had been soaked in blood (according to prosecutors) from Simpson, Brown and Goldman,
[15]
and frozen and unfrozen several times. Darden was advised by Clark and other prosecutors
not to ask Simpson to try on the glove,[citation needed] but to argue through experts that in better
condition, the glove would fit. Instead, Darden decided to have Simpson try on the glove.

The leather glove seemed too tight for Simpson to put on easily, especially over the latex gloves
he wore underneath.[10] Uelmen came up with and Cochran repeated a quip he had used several
times in relation to other points in his closing arguments, "If it doesn't fit, you must acquit." On
June 22, 1995, assistant prosecutor Christopher Darden told Judge Lance Ito of his concerns that
Simpson "hasarthritis and we looked at the medication he takes and some of it is anti-
inflammatory and we are told he has not taken the stuff for a day and it caused swelling in the
joints and inflammation in his hands." The prosecution also stated their belief that the glove
shrank from having been soaked in blood and later testing. [10] A photo was presented during the
trial showing Simpson wearing the same type of glove that was found at the crime scene.

Prosecutors contended that the presence of O.J. Simpson's blood at the crime scene was the
result of blood dripping from cuts on the middle finger of his left hand. [10] Police noted his wounds
on June 13, 1994, and asserted that these were suffered during the fatal attack on Ronald
Goldman. However, the defense noted that none of the gloves found had any cuts. Plus, both
prosecution and defense witnesses testified to not seeing any cuts or wounds of any kind on
Simpson's hands in the hours after the murders took place. The defense also alleged that
Fuhrman may have planted the glove at Simpson's house after taking it from the crime scene,
and that the analysis finding that the hair could be Brown's could not be reliable. [10] The
prosecution contended that this was not the case, pointing out that by the time Fuhrman had
arrived at the Simpson home after leaving the Nicole Brown's home, the crime scene had already
been combed over by several officers for almost two hours, and none had noticed a second glove
at the scene. In his first round of testimony, Fuhrman answered "no" when asked by F. Lee Bailey
if he had planted any evidence at Simpson's house. In his second round of testimony, Fuhrman
took the Fifth Amendment when asked the same question by Gerald Uelmen.

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That is the use of OBJECT EVIDENCE BY WAY OF EXPERIMENTATION.

Question: in the Philippines, do we have a case like that? In that note, let me bring you back to
the concept of RIGHT AGAINST SELF-INCRIMINATION.
RIGHT AGAINST SELF INCRIMINATION

Section 17, Article III of the 1987 Constitution which reads: “No person shall be compelled to be a
witness against himself.”

This involves matters that would require the exercise of intelligence. Pangutan-an ka ug naa sa
imu kung mutubag ka ug dili. But this rule EXCLUDES PURELY MECHANICAL ACTS.

What if you are accused of rape of a woman? Nay ginatawag na vaginal swab. They will scrape
then tapos basig naa sila mbrush na pubic hair. Pwede ban a manguha ka ug hair sa accused
para macompare sa hair found in the genitalia? Can it be compared for a DNA sample or test for
lets say, some body tissue. The resolution will depend on how you will consider these types of
evidence. Does it involve the exercise of intelligence? Does it merely involve a purely mechanical
act? It is PURELY MECHANICAL. In the same way that you have to submit to a finger printing,
taking of blood sample because they are purley mechanical.

Remember: that the RIGHT AGAINST SELF-INCRIMINATION EXCLUDES PURELY

MECHANICAL ACTS

PEOPLE V. MALIMIT
NOVEMBER 14, 1996

The right against self-incrimination guaranteed under our fundamental law finds no
application in this case. This right, as put by Mr. Justice Holmes in Holt vs. United
States, ". . . is a prohibition of the use of physical or moral compulsion, to extort
communications from him . . ." It is simply a prohibition against legal process to extract
from the [accused]'s own lips, against his will, admission of his guilt. 27 It does not apply
to the instant case where the evidence sought to be excluded is not an incriminating
statement but an object evidence.

Wigmore, discussing the question now before us in his treatise on evidence, thus, said:

If, in other words (the rule) created inviolability not only for his [physical
control of his] own vocal utterances, but also for his physical control in whatever
form exercise, then, it would be possible for a guilty person to shut himself up in
his house, with all the tools and indicia of his crime, and defy the authority of the
law to employ in evidence anything that might be obtained by forcibly
overthrowing his possession and compelling the surrender of the evidential
articles — a clear reduction ad absurdum. In other words, it is not merely
compulsion that is the kernel of the privilege, . . . but testimonial compulsion

So: can the pubic hair be taken? YES.

How about DNA EVIDENCE?

PEOPLE VS YATAR
G.R. NO. 150224 MAY 19, 2004

In an attempt to exclude the DNA evidence, the appellant contends that the blood sample
taken from him as well as the DNA tests were conducted in violation of his right to remain

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silent as well as his right against self-incrimination under Secs. 12 and 17 of

Art. III of the Constitution.

This contention is untenable. The kernel of the right is not against all compulsion, but
against testimonial compulsion.37The right against self- incrimination is simply against the
legal process of extracting from the lips of the accused an admission of guilt. It does not
apply where the evidence sought to be excluded is not an incrimination but as part of
object evidence.

We ruled in People v. Rondero38 that although accused-appellant insisted that hair

samples were forcibly taken from him and submitted to the National Bureau of
Investigation for forensic examination, the hair samples may be admitted in evidence
against him, for what is proscribed is the use of testimonial compulsion or any evidence
communicative in nature acquired from the accused under duress.

Hence, a person may be compelled to submit to fingerprinting, photographing, paraffin,

blood and DNA, as there is no testimonial compulsion involved.

OBJECT EVIDENCE MUST PASS THE TEST OF ADMISSIBILITY. Therefore, if the object is
excluded by the law or the rules, such as fruit of a poisonous tree, the same is INADMISSIBLE.

For example, if the object is an illegal contraband but it is a product of illegal search or
incident to unlawful arrest; it will not be admitted by the court.

Likewise, autoptic proference must also be relevant it is relevant only if it makes a fact or
consequence more or less probable than in the absence of autoptic proference. Object evidence
does not establish the factum probandum. It merely or unlikely that one factum probandum is
proven solely by object evidence. Can you think of a factum probandum proven solely by object
evidence? GOOD LUCK!

For example, stabbing. Thankfully C was there and he took pictures. The evidence is of
course damning coz it shows that B really stabbed A. however, under the Law, proper procedure
must be followed. Thus, the photograph C must be presented to identify the photographs,
otherwise, the photographs won’t be presented as object evidence. As in the case of
documentary evidence, it has to be sponsored by the Rules.

Object evidence must therefore be supported by propositions or in its ultimate analysis, it

must be proven to have a logical relationship in the ultimate fact in issue.

What is the most commonly used object evidence in criminal prosecutions which has a lot
of issues? MARKED MONEY IN BUY-BUST OPERATIONS

PEOPLE V. REYES
September 2, 1994

The admissibility of the marked money in evidence is governed by Section 1, Rule 130 of
the 1989 Rules on Evidence, which provides that when an object is relevant to the fact in
issue, it may be exhibited to, examined or viewed by the court. The marked money, being
the consideration paid for the shabu, was relevant to the fact in issue — the sale of
shabu.

The provisions under which appellant was charged (R.A. No. 6425, Art. III, Sec. 15) does
not only penalize the sale but also the delivery of prohibited drugs. Therefore, even if the
marked money was not admitted as evidence and the prosecution failed to establish the
sale of dangerous drugs, still appellant could be convicted for delivering prohibited drugs.

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What if case is for possession of shabu or illegal drugs? Is it important?

NO. THERE IS NO need or requirement for a proof of sale.

PEOPLE V. AGULAY
September 26, 2008

On this premise, this Court has laid down the "objective" test in scrutinizing buy-bust
operations. In People v. Doria, we said:

We therefore stress that the "objective" test in buy-bust operations demands that the
details of the purported transaction must be clearly and adequately shown.

This must start from the initial contact between the poseur-buyer and the pusher, the
offer to purchase, the promise or payment of the consideration until the consummation of
the sale by the delivery of the illegal drug subject of the sale. The manner by which the
initial contact was made, whether or not through an informant, the offer to purchase the
drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether
to the informant alone or the police officer, must be the subject of strict scrutiny by courts
to insure that law-abiding citizens are not unlawfully induced to commit an offense. x x x.

It bears to point out that prosecutions of cases for violation of the Dangerous Drugs Act
arising from buy-bust operations largely depend on the credibility of the police officers
who conducted the same, and unless clear and convincing evidence is proffered showing
that the members of the buy-bust team were driven by any improper motive or were not
properly performing their duty, their testimonies on the operation deserve full faith and
credit.
For example: Pusher buyer and pusher in a buy-bust operation tapos wala pa natunol ang
marked money. It will be as if no crime had been committed. You have to really apply the
objective test.
PEOPLE V. WILLIAM Y BANEGA
June 15, 1992

It’s a case which demonstrates the craftiness of the clever disposition of the lawyers. This
case is a drugs case and William was caught with marijuana. Before the SC, lawyers of
the accused posed a very novel proposition by way of defense:” that marijuana is an
illegal drug. Being illegal, it is beyond the commerce of man. Hence, no crime was
committed”

The probative value of object evidence is not affected by the fact that it is beyond the
commerce of man. — Appellants raise the strange argument that Exhibit "C" has
probative value because the subject thereof — marijuana — is beyond the commerce of
man

This is simply absurd. The transfer of marijuana was incidental to the arrest of appellants and the
confiscation of the subject matter of the crime. Exhibit "C" is in the same category as a death
certificate and autopsy report which are admissible evidence of the subject of the crime — the
human cadaver which is also beyond the commerce of man. Transfer of goods as a consequence
or by virtue of police or state action such as forfeiture, seizure, condemnation, confiscation did not
fall within the phrase "commerce of man" even in its broadest meaning.

Can you recall cases on Consti law on issuance of search warrants and when admissible
obtained by reason of the search?

COLUMBIA ENTERTAINMENT V. CA
September 12, 1996

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This is the case about pirated tapes. Issue: if you are going to search an alleged pirate,
would that mean that they should present the master tape or katong tape nga ilang
gikopya lan gnila ilang VHS?

the Court ruled therein that presentation of the master tapes in such cases is not an
absolute requirement for as search warrant to issue: in copyright infringement cases, the
presentation of master tapes of the copyright films is always necessary to meet the
requirement of probable cause for the issuance of a search warrant. It is true that such
master tapes are object evidence, with the merit that in this class of evidence the
ascertainment of the controverted fact is made through demonstration involving the direct
use of the senses of the presiding magistrate.

Such auxiliary procedure, however, does not rule out the use of testimonial or
documentary evidence, depositions, admissions or other classes of evidence tending to
prove the factum probandum, especially where the production in court of object evidence
would result in delay, inconvenience or expenses out of proportion to is evidentiary value.

APPRECIATION OF AGE BY APPEARANCE. Its not really recognized by judicial notice but by
exercising the use of autoptic proference. The process of judicial notice is repugnant to age as
object evidence.

What is the evidentiary rule with respect to age as evidence?

PEOPLE V. VILLARAMA
[G.R. No. 139211. February 12, 2003]

Under paragraph 4, it is true that the penalty for raping a child below 7 years old is
death. However, in the case at hand, even if Elizabeth was only 4 years old when the
appellant committed the dastardly crime, the prosecution did not present, other than the
testimony of the mother, independent evidence proving her age.

Court decisions on the rape of minors invariably state that, in order to justify the
imposition of the death penalty, there must be independent evidence showing the age of
the victim. Testimonies on the victim’s age given by the prosecution witnesses or the lack
of denial of the accused or even his admission thereof on the witness stand is not
sufficient.

This Court has held that, to justify the imposition of the death penalty for rape
committed against a child below 7, the minority of the victim must be proved with equal
certainty and clarity as the crime itself. The failure to sufficiently establish the victim’s age
with factual certainty and beyond reasonable doubt is fatal and consequently bars
conviction for rape in its qualified form.

In the case at bar, the victim was presented in open court during the testimony of the
mother to establish Elizabeth’s age

The above-quoted testimony, however, is not sufficient for the court to take judicial
notice of the victim’s age. the Court declared that, in cases calling for a conviction of rape
in its qualified form, the age of the victim, without qualification, is not a matter of judicial
notice, whether mandatory or discretionary. Judicial notice of the issue of age without
the requisite hearing under Section 3 of Rule 129 of the Rules on evidence would not be
sufficient to establish the age of the victim to warrant the imposition of the death penalty.

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It is clear then that even the admission of appellant as to the age of the
victim could not be taken against him in the case at bar because of the foregoing
guidelines. Paragraph 4 which allows the appreciation of the testimony of the
complainant as to the victim’s age provided the same is expressly and clearly admitted
by the accused, must be applied in relation to paragraph 3(a) which dispenses with the
presentation of independent proof of age only when the victim is below 3 and the age
sought to be proved is less than 7. In this case, the unfortunate victim was 4, a year too
old.

In view of the moral uncertainty of the victim’s exact age on account of the failure of
the prosecution to present the birth certificate or similar authentic document (such as her
baptismal certificate) and to make a positive and unequivocal manifestation that the
victim was indeed 4 years old, not to mention the absence of a categorical finding by the
trial court of the victim’s minority, the Court hesitates to impose the penalty of death upon
appellant.

PEOPLE V. PRUNA
G.R. No. 138471 [October 10, 2002]

The matter of appreciating the age of the victim, either as an element of the crime or
as a qualifying circumstance, was settled when the Court, in the case of People vs.
Pruna laid down the following guidelines:

1. The best evidence to prove the age of the offended party is an original or
certified true copy of the certificate of live birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such

as baptismal certificate and school records which show the date of birth of the
victim would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have been lost
or destroyed or otherwise unavailable, the testimony, if clear and credible, of
the victim’s mother or a member of the family either by affinity or consanguinity
who is qualified to testify on matters respecting pedigree such as the exact
age or date of birth of the offended party pursuant to Section 40, Rule 130 of
the Rules on Evidence shall be sufficient under the following circumstances:
a. If the victim is alleged to be below 3 years of age and what is
sought to be proved is that she is less than 7 years old;
b. If the victim is alleged to be below 7 years of age and what is
sought to be proved is that she is less than 12 years old;
c. If the victim is alleged to be below 12 years of age and what is
sought to be proved is that she is less than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the

testimony of the victim’s mother or relatives concerning the victim’s age, the
complainant’s testimony will suffice provided that it is expressly and clearly
admitted by the accused.
5. It is the prosecution that has the burden of proving the age of the offended
party. The failure of the accused to object to the testimonial evidence
regarding age shall not be taken against him.

The trial court should always make a categorical finding as to the age of the victim [

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NOTE: why should there be a variance in age? Like testimony will suffice if what is
alleged is that victim is 7 then what is sought to be proved is that she is 12? Because
APPEARANCE IS DECEPTIVE.

For example, how old do you think is Vicky Belo? She is I think 60 but she doesn’t look
her age. Some people tend to look younger than what they are.

What is now therefore the EFFECT OF VARIANCE between the allegation of age and what
is actually believed by the court?

If the victim is alleged to be below 3 but court believes that victim is below 7—
QUALIFIED RAPE; death penalty.

If alleged to be below 7 but court believes him to be above 7 but below 12—STATUTORY
RAPE; reclusion perpetua. But death penalty may still be imposed if the offender is a relative of
the victim, RAPE IS QUALIFIED.

If alleged to be below 12 but court believes him to be above 12 but below 18—rape is
STATUTORY if there is no consent in the intercourse, penalty is reclusion perpetua. Rape is
QUALIFIED if committed by a relative; penalty is death if without consent. If with consent, offense
will be SEDUCTIOn so long as not committed by a relative.

When can there be consent? If the parents themselves who are promoting prostitution of
the child.

B. DOCUMENTARY EVIDENCE
SEC. 2. Documentary evidence. – Documents as evidence consists of writings or any material
containing letters, words, numbers, figures, symbols or other modes of written expressions
offered as proof of their contents
.
Documentary evidence are of 2 types:
1. Consists of writings or
2. Any material containing letters, words, numbers, figures, symbols or other modes of
written expressions.

The common requisite in these types is that writing or material is offered as proof of their
contents. If the writing or material is not offered as proof of their contents but is offered as proof of
the writing itself, it is already considered as object evidence. For example, what you presented is
a parchment without indicating for what prupsoe that is, that can be considered a documentary
evidence vven if it has some letters, words, etc. because the proof here is sthe writing or material
itself without reference to whatever is written there. This very same issue was subject to several
bar examination questions.

BAR QUESTION: Admissibility; Object or Real Evidence (1994)

At the trial of Ace for violation of the Dangerous Drugs Act, the prosecution offers in evidence
a photocopy of the marked P100.00 bills used in the “buy-bust” operation. Ace objects to the
introduction of the photocopy on the ground that the Best Evidence Rule prohibits the introduction
of secondary evidence in lieu of the original.
a) Is the photocopy real (object) evidence or documentary evidence?
b) Is the photocopy admissible in evidence?

SUGGESTED ANSWER:

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a) The photocopy of the marked bills is real (object) evidence not documentary
evidence, because the marked bills are real evidence. what you are seeking to prove is
the possession of the marked money and not the content therein. You don’t have to prove
as a fact in issue in the case what a marked money in the case. What you want to prove
is the consummation of the contract of buy-bust. That is the evidence in consideration
and therefore, if you appreciate it as evidence, it cannot be considered as documentary
evidence.
b) Yes, the photocopy is admissible in evidence, because the best evidence rule does not
apply to object or real evidence.

BAR QUESTION; 2005

May a private document be offered and admitted in evidence both as documentary

evidence and as object evidence? Explain.

YES. A private document may be offered and admitted both as documentary and as
object evidence based on the rule on multiple admissibility of evidence. A document can also be
considered as object evidence based on the facts of the case. Object as evidence are those
which are addressed those addressed to the senses of the court. Documentary evidence are
those which consists in writing….hence, the private document may be presented as object
evidence to establish certain physical characteristics or physical evidence that are visible on the
paper and the writings that authorized the document.

We mentioned earlier that the types of documents are “containing letters, words,
numbers, figures, symbols or other modes of written expressions”. Now, under the state of the
law, we now include ELECTRONIC DOCUMENTS as part of the definition.

Under RULE 2, SECTION 1(h)-- (h) “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. For purposes of these Rules, the term “electronic document”
may be used interchangeably with “electronic data message”.

Under RULE 3, SECTION 1. Electronic Documents as functional equivalent of paper-

based documents. – Whenever a rule of evidence refers to the term writing, document, record,
instrument, memorandum or any other form of writing, such term shall be deemed to include an
electronic document as defined in these Rules.

For example, statute of frauds 1403 (2)—requirement that it must be in writing. Does that
refer to electronic documents? It may refer to the same because under section 1, rule 3, it is
deemed included. It is an expansion of what we refer to as documentary evidence)

Remember that like object and testimonial evidence, documentary evidence must be
other evidence, electronic evidence must be competent. Competent is when it is not excluded by
the law or the Rules of court. It must be relevant—it must have such a relation to the fact in issue
as to induce belief of its existence or non-existence.

Further, documentary evidence would also be subject to exclusionary rules such as:
1. best evidence rule and
2. parol evidence rule.
3. admission made in violation of Constitutional rights such as the right to self-
incrimination.

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What would therefore be for the basic requisites of admissibility of documentary

evidence?

1. It must be relevant. It must therefore bear a relation to the fact in issue.

2. A documentary evidence does not present itself and therefore, it must be authenticated,
identified by a competent process by the process called “sponsoring by witness”
3. Document must be formally offered as evidence. “Formal offer of evidence”—because
court cannot consider evidence which has not been formally offered.

Remember: There is a big difference between testimonial and documentary evidence in terms of
“offer”. When you present a witness in court before you proceed in asking questions, you have to
offer his testimony. The offer will tell the court as well as the adverse party what the subject of his
testimony is. For documentary evidence,

1. BEST EVIDENCE RULE

SEC. 3. Original document must be produced; exceptions. – When the subject of inquiry is
the contents of a document, no evidence shall be admissible other than the original document
itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court, without
bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;
(c) When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from
them is only the general result of the whole; and
(d) When the original is a public record in the custody of a public officer or is recorded in
a public office.

What is the best evidence rule?

The best evidence rule states that when the subject of inquiry is the contents of a
document, no evidence shall be admissible other than the original document itself

Atty. Espejo: that is actually a misnomer. The term “best evidence” as used in the rule has been a
source of a lot of misconceptions. It has been misunderstood and given a meaning which it does
not serve. Despite the use of the term “best”, the rule does not proclaim itself as the highest and
most credible type of evidence in the hierarchy of evidence.

In the hierarchy, what is given paramount consideration is Object or real evidence, then
documentary and testimonial evidence. The term best does not pertain to the degree of its
probative value in relation to other types of evidentiary rules. It is not intended to mean the most
superior evidence because obviously, documentary evidence is ___. More accurately, it is the
original document rule or the primary evidence rule. This is the reason why the best evidence rule
is actually ___.

What does the best evidence rule?

As much as possible, present the best evidence. What is that in so far as documentary
evidence is concerned? The ORIGINAL DOCUMENT. The general rule is that original must be
produced. The exceptions are those enumerated. The rule is not intended to mean that a weaker
evidence shall be substituted by __ evidence or the storngers evidence must be the one to be
presented but it allows some sort of allowance by way of substitution.

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What is the purpose of the Best evidence rule?

1. To prevent fraud—If you present merely a reproduction of the original, there is a

possibility of intercalation.

2. The law allows for a possible mistake in the truth of the contents of the writing. If you
want to rely merely on what the parties remember and not at all require an original of
document, that would be dangerous. Why? Your memory will fail you.

LEE V. PEOPLE
[G.R. No. 159288. October 19, 2004]

Before the onset of liberal rules of discovery, and modern technique of electronic
copying, the best evidence rule was designed to guard against incomplete or fraudulent proof
and the introduction of altered copies and the withholding of the originals. But the modern
justification for the rule has expanded from the prevention of fraud to a recognition that
writings occupy a central position in the law. The importance of the precise terms of writings
in the world of legal relations, the fallibility of the human memory as reliable evidence of the
terms, and the hazards of inaccurate or incomplete duplicate are the concerns addressed by
the best evidence rule.

The rule does not apply 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 when a party uses a
document to prove the existence of an independent fact, as to which the writing is merely
collated or incidental.

CONSOLIDATED V. DEL MONTE

G.R. No. 143338 July 29, 2005

The "best evidence rule," according to Professor Thayer, first appeared in the year
1699-1700 when in one case involving a goldsmith, Holt, C. J., was quoted as stating that
they should take into consideration the usages of trade and that "the best proof that the
nature of the thing will afford is only required." 29 Over the years, the phrase was used to
describe rules which were already existing such as the rule that the terms of a document
must be proved by the production of the document itself, in preference to evidence about the
document; it was also utilized to designate the hearsay rule or the rule excluding assertions
made out of court and not subject to the rigors of cross-examination; and the phrase was
likewise used to designate the group of rules by which testimony of particular classes of
witnesses was preferred to that of others.30

According to McCormick, an authority on the rules of evidence, "the only actual rule
that the ‘best evidence’ phrase denotes today is the rule requiring the production of the
original writing"31 the rationale being:
(1) that precision in presenting to the court the exact words of the writing is of more than
average importance, particularly as respects operative or dispositive instruments, such as
deeds, wills and contracts, since a slight variation in words may mean a great difference in
rights, (2) that there is a substantial hazard of inaccuracy in the human process of making a
copy by handwriting or typewriting, and (3) as respects oral testimony purporting to give from
memory the terms of a writing, there is a special risk of error, greater than in the case of
attempts at describing other situations generally. In the light of these dangers of
mistransmission, accompanying the use of written copies or of recollection, largely avoided
through proving the terms by presenting the writing itself, the preference for the original
writing is justified.

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Bearing in mind that the risk of mistransmission of the contents of a writing is the
justification for the "best evidence rule," we declare that this rule finds no application to this
case. It should be noted that respondents never disputed the terms and conditions of the
promissory note thus leaving us to conclude that as far as the parties herein are concerned,
the wording or content of said note is clear enough and leaves no room for disagreement. In
their responsive pleadings, respondents’ principal defense rests on the alleged lack of
consideration of the promissory note. In addition, respondent Morales also claims that he did
not sign the note in his personal capacity. These contentions clearly do not question the
"precise wording"33 of the promissory note which should have paved the way for the
application of the "best evidence rule." It was, therefore, an error for the Court of Appeals to
sustain the decision of the trial court on this point.

Besides, the "best evidence rule" as stated in our Revised Rules of Civil Procedure is
not absolute. As quoted earlier, the rule accepts of exceptions one of which is when the
original of the subject document is in the possession of the adverse party. As pointed out by
petitioner in its motion to inhibit, had it been given the opportunity by the court a quo, it would
have sufficiently established that the original of Exhibit "A" was in the possession of
respondents which would have called into application one of the exceptions to the "best
evidence rule."
Significantly, and as discussed earlier, respondents failed to deny specifically the
execution of the promissory note. This being the case, there was no need for petitioner to
present the original of the promissory note in question. Their judicial admission with respect
to the genuineness and execution of the promissory note sufficiently established their liability
to petitioner regardless of the fact that petitioner failed to present the original of said note.

Indeed, when the defendant fails to deny specifically and under oath the due
execution and genuineness of a document copied in a complaint, the plaintiff need not prove
that fact as it is considered admitted by the defendant

What would be the basic requirements for the application of the “best evidence rule”?

1. A subject matter must be called a document—

2. The subject of the inquiry would be the contents of the documents.

Stated otherwise therefore, the rule applies only when the purpose is to establish the
terms in writing. When the evidence introduced concerns some external fact about a writing,
like its existence, execution, or delivery, you have reference to its terms, the same are not be
made relevant.

So just remember: that you do not use the best evidence rule when the evidence that you
want to introduce concerns external facts about the document and not its contents. External
facts such as its existence, due execution, delivery, WON it was written on a fragrant
stationary paper. In those cases, best evidence rule finds no application.

PEOPLE V. BAGO
[G.R. No. 122290. April 6, 2000]

The rule cannot be invoked unless the content of a writing is the subject of judicial inquiry, in
which case, the best evidence is the original writing itself. The rule pertains to the
admissibility of secondary evidence to prove the contents of a document. In the case at bar,
no secondary evidence is offered to prove the content of a document. What is being
questioned by appellant is the weight given by the trial court to the testimony of Manangan
over the receipt which on its face shows that the materials in question were delivered to
Azkcon’s premises. Clearly, the best evidence rule finds no application on this issue.

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Take note: So it is really a question of weight as to how the court will consider it and
nto whether what you are presenting is the original or merely a photocopy.

If you ask me, what is more believable? Original or another document similar to that
original which is similar in all aspects? To my mind, under the law it would really not be admitted
but for me, it is a good source of objection.

When you file, you only attach photocopies. You do just give the original. There are ways
that do not necessarily require the submission of originals. During the time nga ngprogress ang
kaso, you ask the witness to identify the photocopy and compare it with the original which he has.
If the photocopy is a faithful reproduction of the original, then you just cause the transfer of the
marking from the provisional marking to an original or permanent marking. So no need to really
submit the original document then.

LEE V. PEOPLE
October 19, 2004

The rule does not apply to:

1. proof of facts collateral to the issues such as the nature, appearance or
condition of physical objects or
2. to evidence relating to a matter which does not come from the foundation of the
cause of action or defense; or
3. when a party uses a document to prove the existence of an independent fact, as
to which the writing is merely collated or incidental

Is a quasi- judicial agency such as BIR, in the conduct of its functions, covered by the best
evidence rule?

CIR V. HANTEX
[G.R. No. 136975. March 31, 2005]

Facts: what was sought to be determined as to WON there is any deficiency in the
income and business taxes that will be assessed against a taxpayer. Recall that as a
general rule, quasi judicial agencies are not bound by the rules on evidence unless the
use of latter is precisely mandated by its own rules of procedure.

So ang gipresent sa taxpayer are photocopies? Is that sufficient?

In any case, the respondent argues that the photocopies of import entries cannot be
used in making the assessment because they were not properly authenticated, pursuant
to the provisions of Sections 24 and 25 of Rule 132 of the Rules of Court. It avers that
while the CTA is not bound by the technical rules of evidence, it is bound by substantial
rules. The respondent points out that the petitioner did not even secure a certification of
the fact of loss of the original documents from the custodian of the import entries. It
simply relied on the report of the EIIB agents that the import entry documents were no
longer available because they were eaten by termites. The respondent posits that the
two collectors of the Bureau of Customs never authenticated the xerox copies of the
import entries; instead, they only issued certifications stating therein the import entry
numbers which were processed by their office and the date the same were released.

We agree with the contention of the petitioner that the best evidence obtainable may
consist of hearsay evidence, such as the testimony of third parties or accounts or other
records of other taxpayers similarly circumstanced as the taxpayer subject of the
investigation, hence, inadmissible in a regular proceeding in the regular
courts. Moreover, the general rule is that administrative agencies such as the BIR are not
bound by the technical rules of evidence. It can accept documents which cannot be

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admitted in a judicial proceeding where the Rules of Court are strictly

observed. It can choose to give weight or disregard such evidence, depending on its
trustworthiness.

However, the best evidence obtainable under Section 16 of the 1977 NIRC, as
amended, does not include mere photocopies of records/documents. The petitioner, in
making a preliminary and final tax deficiency assessment against a taxpayer, cannot
anchor the said assessment on mere machine copies of records/documents. Mere
photocopies of the Consumption Entries have no probative weight if offered as proof of
the contents thereof. The reason for this is that such copies are mere scraps of paper
and are of no probative value as basis for any deficiency income or business taxes
against a taxpayer.

As an evidentiary rule, specifically under the rules of exclusion, can it be waived?

YES. As in any other evidentiary rule, it can be waived by the parties’ failure to object to
the introduction of secondary evidence rather than the original document. That would be a fatal
mistake though if the document is an actionable document.

APPLICABILITY OF THE BEST EVIDENCE RULE

Remember that the rule is only applicable when the original is not available. What
actually happens is that when the rule is applicable, meaning the subject of inquiry are the
contents of the documents, etc rule applies, therefore you have to present the best evidence
but the original is not available for presentation.

Remember that the proponent of such evidence must present the original and endeavor
not to produce only a mere photocopy. So, if the original document is available no other evidence
can be substituted for it.

What then can be done if the original is not available? When will the exceptions
under rule 130 section 3 be made applicable?

The part must find a legal justification of the failure to present the original and then
that is the time you will be allowed to present substitutionary or secondary evidence.

In line with that, the best evidence rule can therefore be restated as follows:

“The original must be presented except when the proponent can justify its
unavailability in the manner provided by the rules. If he cannot justify, he cannot present;
if he can justify, then the original can be dispensed with, with a preservation of a mere
copy”

In other words, the proponent has to lay down the basis for the admission of the copy in
lieu of the original. When we say basis of admission, lay down your justifications.

The EXCEPTIONS:

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

This covers 3 situations:

1. loss
2. destruction
3. unavailability

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For all intents and purposes, when is a document considered lost?

Article 1189 of the civil code: Under the law on obligations and contracts, the obligation to
give a determinate thing is extinguished if the object is lost without the fault of the debtor.
And per Art. 1192 (2) of the Civil Code, a thing is considered lost when it perishes or disappears
in such a way that its existence is unknown or it cannot be recovered.

How about destruction?

Destruction means the obliteration of the document such as tearing, shredding or

burning. It can also refer to acts of alteration which would render the contents of the document
unintelligible for the purpose of its offer as evidence.

What is meant by unavailability?

It means the physical or legal unavailability. Physical—it means there is an original

document but its impossible to bring it to court.

Remember it consists of writing or any other material containing words, letters. So is ti

possible that documentary evidence be one not written in a document? Say you wanna prove that
a person is dead, you cannot produce a death certificate for the simple reason that records of the
local civil registry has been burned down. What’s the substitute evidence? Gravestones! Its not
object evidence because the subject of inquiry would b the contents of the gravestone. Kanus-a
namatay? July 10, 2012. Ana. Is that the best proof of the date of death? No but substitutionary
only. Can you bring that to court? NO. That is physical impossibility. You can actually bring just a
photograph then let the court appreciate it.

What about legal unavailability? When is a document legally unavailable?

It is legally unavailable if it cannot be reached by the coercive powers of the court. It

cannot e subject to a request for inspection or production of documents and things. It cannot even
be produced by means of search warrant. It is beyond the coercive processes of court.

What must be done so that the loss, destruction or unavailability are justified? It requires
compliance with section 5, rule 130.

CITY BANK V. TEODORO

[G.R. No. 150905. September 23, 2003]

Before secondary evidence may be admitted to prove the contents of original

documents, the offeror must prove the due execution and the subsequent loss or
unavailability of the original.

Section 5 of Rule 130 of the Rules of Court states:

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

Applying the above Rule to the present case, before a party is allowed to adduce
secondary evidence to prove the contents of the original, the offeror must prove the
following:
(1) the existence or due execution of the original;

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(2) the loss and destruction of the original or the reason for its
nonproduction in court; and
(3) On the part of the offeror, the absence of bad faith to which the
unavailability of the original can be attributed.

“Without bad faith” means that you did not deliberately cause the non-production of
the original or that he exerted earnest efforts to present the original but to no avail.

The correct order of proof is as follows: existence, execution, loss, and contents. At
the sound discretion of the court, this order may be changed if necessary.

DELA CRUZ V. CA
G.R. No. 117384. October 21, 1998

The parties stipulated a fact that the documentary evidence, whose contents are the subject
of the inquiry, would be a deed of sale purportedly executed between the parties. The thing
is, only a photoco0py of the document was presented. Object dayon ang pikas na u have to
produce the original based on the best evidence rule.
Here, the lawyer Atty. Sevillano Tabangay, the notary public who notarized the deed of sale,
testified that the document has about five (5) original copies.

With 5 original copies, what do you have to prove in order to resort to presentation or mere
photocopy or a duplicate?

Hence, it is imperative that all the originals must be accounted for before secondary
evidence can be presented.8 These petitioners failed to do. Moreover, records show that
none of these five copies was even presented during the trial. Petitioners explanation that
these copies were lost or could not be found in the National Archives was not even
supported by any certification from the said office.

It is a well-settled principle that before secondary evidence can be presented, all duplicates
and/or counterparts must be accounted for, and no excuse for the non-production of the
original document itself can be regarded as established until all its parts are unavailable.

What is the correct order of proof?

ONG CHING PO V. CA
G.R. Nos. 113472-73 December 20, 1994

Secondary evidence is admissible when the original documents were actually lost or
destroyed. But prior to the introduction of such secondary evidence, the proponent must
establish the former existence of the document. The correct order of proof is as follows:
existence; execution; loss; contents. This order may be changed if necessary in the
discretion of the court

Question: so you have now prove its existence, execution, and loss. How do you now prove
the contents?

Manner of proving contents

The contents of the original document may be proved by:
(1) by a copy;
(2) by a recital of its contents in some authentic document; or
(3) by the recollection of witnesses, in the order stated.

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Question: Can you name 2 documents under the law that is so different in form but
they contain the same thing?
1. Decree of registration and certificate of sale
2. Journal and ledger

How do you determine whether there is forgery or not?

BPI V. CASA MONTESSORI INTERNATIONALE

[G.R. No. 149454. May 28, 2004]

Forgery “cannot be presumed.” [47] It must be established by clear, positive and

convincing evidence.[48] Under the best evidence rule as applied to documentary
evidence like the checks in question, no secondary or substitutionary evidence may
inceptively be introduced, as the original writing itself must be produced in court. [49] But
when, without bad faith on the part of the offeror, the original checks have already been
destroyed or cannot be produced in court, secondary evidence may be produced.
[50]
Without bad faith on its part, CASA proved the loss or destruction of the original
checks through the Affidavit of the one person who knew of that fact [51] -- Yabut. He
clearly admitted to discarding the paid checks to cover up his misdeed. [52] In such a
situation, secondary evidence like microfilm copies may be introduced in court.

The drawer’s signatures on the microfilm copies were compared with the standard
signature. PNP Document Examiner II Josefina de la Cruz testified on cross-examination
that two different persons had written them. [53] Although no conclusive report could be
issued in the absence of the original checks, [54] she affirmed that her findings were 90
percent conclusive.[55] According to her, even if the microfilm copies were the only basis
of comparison, the differences were evident. [56] Besides, the RTC explained that although
the Report was inconclusive, no conclusive report could have been given by the PNP,
anyway, in the absence of the original checks.[57] This explanation is valid; otherwise, no
such report can ever be relied upon in court.

Even with respect to documentary evidence, the best evidence rule applies only
when the contents of a document -- such as the drawer’s signature on a check -- is the
subject of inquiry. As to whether the document has been actually executed, this rule does
not apply; and testimonial as well as any other secondary evidence is admissible.
[59]
Carina Lebron herself, the drawer’s authorized signatory, testified many times that she
had never signed those checks. Her testimonial evidence is admissible; the checks have
not been actually executed. The genuineness of her handwriting is proved, not only
through the court’s comparison of the questioned handwritings and admittedly genuine
specimens thereof,[60] but above all by her.

The failure of CASA to produce the original checks neither gives rise to the
presumption of suppression of evidence[61] nor creates an unfavorable inference against
it.[62] Such failure merely authorizes the introduction of secondary evidence [63] in the form
of microfilm copies. Of no consequence is the fact that CASA did not present the
signature card containing the signatures with which those on the checks were compared.
[64]
Specimens of standard signatures are not limited to such a card. Considering that it
was not produced in evidence, other documents that bear the drawer’s authentic
signature may be resorted to. [65] Besides, that card was in the possession of BPI -- the
adverse party.

We have held that without the original document containing the allegedly forged
signature, one cannot make a definitive comparison that would establish forgery; [66] and
that a comparison based on a mere reproduction of the document under controversy
cannot produce reliable results.[67] We have also said, however, that a judge cannot
merely rely on a handwriting expert’s testimony, [68] but should also exercise independent

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judgment in evaluating the authenticity of a signature under scrutiny. [69] In the

present case, both the RTC and the CA conducted independent examinations of the
evidence presented and arrived at reasonable and similar conclusions. Not only did they
admit secondary evidence; they also appositely considered testimonial and other
documentary evidence in the form of the Affidavit.

The best evidence rule admits of exceptions and, as we have discussed earlier, the
first of these has been met. [70] The result of examining a questioned handwriting, even
with the aid of experts and scientific instruments, may be inconclusive; [71] but it is a non
sequitur to say that such result is not clear, positive and convincing. The preponderance
of evidence required in this case has been satisfied.

Document in custody of adverse party:

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

Does the mere fact that the original is in the custody of the other party, would that necessitate
immediately production of secondary evidence?

NO. You still have to present a legal justification for the same. The party may present
secondary evidence of the contents of a writing not only when the original is lost or destroyed, but
also when it is in the custody or under the control of the adverse party. In either instance,
however, certain explanations must be given before a party can resort to secondary evidence.
The conditions sine qua non for the presentation and reception of photocopies of the
original document as secondary evidence are:
1. the original exists
2. that said document is under the custody or control of the adverse party
3. proponent of the secondary evidence has given the adverse party reasonable notice
to produce the original document
4. that the adverse party failed to produce the original document despite the reasonable
notice.

So here what you have to prove are: EXISTENCE, CONTROL OR CUSTODY, NOTICE and
FAILURE DESPITE NOTICE.

To warrant the admissibility of secondary evidence when the original of a writing is in the
custody or control of the adverse party, Section 6 of Rule 130 provides that the adverse party
must be given reasonable notice, that he fails or refuses to produce the same in court and that
the offeror offers satisfactory proof of its existence. Sec. 6 of Rule 130 reads:

SEC. 6. When original document is in adverse party's custody or control. -

If the document is in the custody or under control of the adverse party, he must have
reasonable notice to produce it. If after such notice and after satisfactory proof of its
existence, he fails to produce the document, secondary evidence may be presented as in
the case of loss.

The mere fact that the original of the writing is in the custody or control of the party
against whom it is offered does not warrant the admission of secondary evidence. The offeror
must prove that he has done all in his power to secure the best evidence by giving notice to the
said party to produce the document. The notice may be in the form of a motion for the production
of the original or made in open court in the presence of the adverse party or via a subpoena
duces tecum, provided that the party in custody of the original has sufficient time to produce the
same. When such party has the original of the writing and does not voluntarily offer to produce it
or refuses to produce it, secondary evidence may be admitted.

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The original consists of numerous accounts:

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

Secondary evidence may be presented when:

1. the original consists of numerous accounts or other documents;
i.e. books of accounts, receipts
2. these documents cannot be examined in court without great loss of time;
3. the fact sought to be established from them is only the general result of the whole—
meaning the purpose of presenting this evidence is not to examine all the documents or
pages of documents but herely to give the judge a summary ast to draw a logical
inference as to the probability or imporbailyt of the fact in issue.

If the other exceptions are based on prevention of fraud, trustworthiness, etc. Here, secondary
evidence is allowed if document consists of numerous accounts because of JUDICIAL
ECONOMY or JUDICIAL EXPEDIENCY.

ATTY. ESPEJO: I say “compassionate justice”.

Cases:

COMPANIA MARITIMA V. ALLIED FREE WORKERS UNION

G.R. No. L-28999 May 24, 1977

First assignment of error. - The appellants contend that the trial court erred in awarding
to the company actual damages, amounting to P450,000, moral damages, of P50,000
and attorney's Considering of P20,000, and in holding that the four officers of the union
are solidarily liable for the said damages.

Appellants' counsel assailed the award of actual damages, on the ground that the
auditors' reports, on which they were based, were hearsay.

After analyzing the nature of the damages, awarded, how the same were computed, and
the trustworthiness of the company's evidence, we find the first assignment of error
meritorious.

The company argues that the accountants' reports are admissible in evidence because of
the rule that "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 oth the general result of the whole", the original writings need
not be produced (Sec. 2[e], Rule 130, Rules of Court).

That rule cannot be applied in this case because the voluminous character of the
records, on which the accountants' reports were based, was not duly established .

It is also a requisite for the application of the rule that the records and accounts should
be made accessible to the adverse party so that the company, of the summary may be
tested on cross-examination .

What applies to this case is the general rule "that an audit made by, or the testimony of, a
private auditor, is inadmissible in evidence as proof of the original records, books of
accounts, reports or the like"

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That general rule cannot be relaxed in this case because the company failed
to make a preliminary showing as to the difficulty or impossibility attending the production
of the records in court and their examination and analysis as evidence by the court

This ruling was further clarified in the case of…

ATLAS CONSOLIDATED MINING V. CIR

[G.R. No. 159490, February 18, 2008]

In case the application for refund/credit of input VAT was denied or remained unacted
upon by the BIR, and before the lapse of the two-year prescriptive period, the taxpayer-
applicant may already file a Petition for Review before the CTA. If the taxpayer's claim is
supported by voluminous documents, such as receipts, invoices, vouchers or long
accounts, their presentation before the CTA shall be governed by CTA Circular No. 1-95,
as amended, reproduced in full below –

In the interest of speedy administration of justice, the Court hereby promulgates

the following rules governing the presentation of voluminous documents and/or
long accounts, such as receipts, invoices and vouchers, as evidence to establish
certain facts pursuant to Section 3(c), Rule 130 of the Rules of Court and the
doctrine enunciated inCompania Maritima vs. Allied Free Workers Union (77
SCRA 24), as well as Section 8 of Republic Act No. 1125:

1. The party who desires to introduce as evidence such voluminous documents

must, after motion and approval by the Court, present:
(a) a Summary containing, among others, a chronological listing of the
numbers, dates and amounts covered by the invoices or receipts and the
amount/s of tax paid; and (b) a Certification of an independent Certified
Public Accountant attesting to the correctness of the contents of the
summary after making an examination, evaluation and audit of the
voluminous receipts and invoices. The name of the accountant or partner
of the firm in charge must be stated in the motion so that he/she can be
commissioned by the Court to conduct the audit and, thereafter, testify in
Court relative to such summary and certification pursuant to Rule 32 of
the Rules of Court.

2. The method of individual presentation of each and every receipt, invoice or

account for marking, identification and comparison with the originals thereof need
not be done before the Court or Clerk of Court anymore after the introduction of
the summary and CPA certification. It is enough that the receipts, invoices,
vouchers or other documents covering the said accounts or payments to be
introduced in evidence must be pre-marked by the party concerned and
submitted to the Court in order to be made accessible to the adverse party who
desires to check and verify the correctness of the summary and CPA certification.
Likewise, the originals of the voluminous receipts, invoices or accounts must be
ready for verification and comparison in case doubt on the authenticity thereof is
raised during the hearing or resolution of the formal offer of evidence.

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

Basis: Rule 130, section 7

SEC. 7. Evidence admissible when original document is a public record. – When the
original of a document is in the custody of a public officer or is recorded in a public office, its

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contents may be proved by a certified copy issued by the public officer in custody
thereof.

What’s the reason?

1. Under 132, SECTION 26, a public record is irremovable.

SEC. 26. Irremovability of public record. — Any public record, an official copy
of which is admissible in evidence, must not be removed from the office in which it is
kept, except upon order of a court where the inspection of the record is essential to the
just determination of a pending case.

Example: when an original certificate of title is issued or a TCT, its issued in duplicate.
One is given to the owner denominated asowners duplicate certificate of title and the
other is kept by ROD which is a duplicate original. Why is one kept? This is because nay
ROD nga laxed. Usahay isalig pa sa lain na personnel nga ipaphotocopy. So mawala
dayon. Kaya 2 copies ang ihatag.

2. Presumption of regularity—that if its kept there and a certification must be a true and
faithful reproduction of the original.

Cases on summary of the Best evidence rule:

CITIBANK V. SABENIANO
October 12, 2006

Best evidence rule

This Court disagrees in the pronouncement made by the Court of Appeals
summarily dismissing the documentary evidence submitted by petitioners based on its
broad and indiscriminate application of the best evidence rule.

In general, the best evidence rule requires that the highest available degree of
proof must be produced. Accordingly, for documentary evidence, the contents of a
document are best proved by the production of the document itself, 113 to the exclusion of
any secondary or substitutionary evidence.1
The best evidence rule has been made part of the revised Rules of Court, Rule
130, Section 3, which readsxxxx –
As the afore-quoted provision states, the best evidence rule applies only when
the subject of the inquiry is the contents of the document. The scope of the rule is more
extensively explained thus –
But even with respect to documentary evidence, the best evidence rule applies
only when the content of such document is the subject of the inquiry. Where the
issue is only as to whether such document was actually executed, or exists, or
on the circumstances relevant to or surrounding its execution, the best evidence
rule does not apply and testimonial evidence is admissible (5 Moran, op. cit., pp.
76-66; 4 Martin, op. cit., p. 78). Any other substitutionary evidence is likewise
admissible without need for accounting for the original.
Thus, when a document is presented to prove its existence or condition it is
offered not as documentary, but as real, evidence. Parol evidence of the fact of
execution of the documents is allowed

Alternatively, even if it is granted that the best evidence rule should apply to the
evidence presented by petitioners regarding the existence of respondent's loans, it
should be borne in mind that the rule admits of the following exceptions under Rule 130,
Section 5 of the revised Rules of Court –

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SEC. 5. When the original document is unavailable. – xxxxx

The execution or existence of the original copies of the documents was

established through the testimonies of witnesses, such as Mr. Tan, before whom most of
the documents were personally executed by respondent. The original PNs also went
through the whole loan booking system of petitioner Citibank – from the account officer in
its Marketing Department, to the pre-processor, to the signature verifier, back to the pre-
processor, then to the processor for booking. 117 The original PNs were seen by Ms.
Dondoyano, the processor, who recorded them in the General Ledger. Mr. Pujeda
personally saw the original MCs, proving respondent's receipt of the proceeds of her
loans from petitioner Citibank, when he helped Attys. Cleofe and Fernandez, the bank's
legal counsels, to reconstruct the records of respondent's loans. The original MCs were
presented to Atty. Cleofe who used the same during the preliminary investigation of the
case, sometime in years 1986-1987. The original MCs were subsequently turned over to
the Control and Investigation Division of petitioner Citibank

It was only petitioner FNCB Finance who claimed that they lost the original
copies of the PNs when it moved to a new office. Citibank did not make a similar
contention; instead, it explained that the original copies of the PNs were returned to the
borrower upon liquidation of the loan, either through payment or roll-over. Petitioner
Citibank proffered the excuse that they were still looking for the documents in their
storage or warehouse to explain the delay and difficulty in the retrieval thereof, but not
their absence or loss. The original documents in this case, such as the MCs and letters,
were destroyed and, thus, unavailable for presentation before the RTC only on 7 October
1987, when a fire broke out on the 7th floor of the office building of petitioner Citibank.
There is no showing that the fire was intentionally set. The fire destroyed relevant
documents, not just of the present case, but also of other cases, since the 7 th floor
housed the Control and Investigation Division, in charge of keeping the necessary
documents for cases in which petitioner Citibank was involved.

The foregoing would have been sufficient to allow the presentation of

photocopies or microfilm copies of the PNs, MCs, and letters by the petitioners as
secondary evidence to establish the existence of respondent's loans, as an exception to
the best evidence rule.

LEE V. PEOPLE
[G.R. No. 159288. October 19, 2004]

the petitioner avers that the prosecution failed to prove the loss, destruction or non-
availability of the original copies of the checks and charge invoices; that diligent efforts
were undertaken to locate the original copies of the checks and invoices; and that said
efforts were futile. He asserts that the witness competent to prove the loss or destruction
of the original of the checks would be the records custodian of VMCI. Bayaban was not
a competent witness thereon, considering that she merely testified that the clerk of the
VMCI failed to locate the original copies of the checks because the latter was lazy to
search for the same. The petitioner posits that the prosecution failed to prove the due
execution and authenticity of the charge invoices and the two checks through the
testimonies of Flores and Bayaban. He contends that Bayaban even admitted that she
was not privy to and had no knowledge of the execution of the said checks and of the
signatories of the checks. The petitioner further avers that, although the appellate court
held that the photocopies of the checks were admissible in evidence based on other
proofs adduced by the prosecution, it failed to specify the other proofs adverted to by it.

The issues for resolution are as follows: (a) whether or not the petition at bar is the
proper remedy of the petitioner; and (b) whether or not the trial court committed a grave
abuse of its discretion amounting to excess or lack of jurisdiction in admitting in evidence

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the photocopies of the checks and charge invoices in lieu of the original
copies thereof.

In the final analysis, the threshold issue in this case is whether or not the
prosecution adduced evidence, testimonial and documentary, to prove the predication to
the admission of the photocopies of the charge invoices 34 and of the checks.35 The
petitioner posits that the prosecution failed to discharge its burden, in contrast to the
claim of the prosecution that it succeeded in doing so. In resolving the petition at bar, the
court will have to delve into and calibrate the testimonial and documentary evidence
adduced by the parties in the trial court, which the court is proscribed to do under Rule
45 of the Rules of Court.

Before the onset of liberal rules of discovery, and modern technique of electronic
copying, the best evidence rule was designed to guard against incomplete or fraudulent
proof and the introduction of altered copies and the withholding of the originals. But the
modern justification for the rule has expanded from the prevention of fraud to a
recognition that writings occupy a central position in the law. The importance of the
precise terms of writings in the world of legal relations, the fallibility of the human memory
as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplicate
are the concerns addressed by the best evidence rule.38
The rule does not apply 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 when a party
uses a document to prove the existence of an independent fact, as to which the writing is
merely collated or incidental.

The offeror of secondary evidence is burdened to prove the predicates thereof: (a)
the loss or destruction of the original without bad faith on the part of the proponent/offeror
which can be shown by circumstantial evidence of routine practices of destruction of
documents;40 (b) the proponent must prove by a fair preponderance of evidence as to
raise a reasonable inference of the loss or destruction of the original copy; and (c) it must
be shown that a diligent and bona fide but unsuccessful search has been made for the
document in the proper place or places. 41 It has been held that where the missing
document is the foundation of the action, more strictness in proof is required than where
the document is only collaterally involved.

If the document is one in which other persons are also interested, and which has
been placed in the hands of a custodian for safekeeping, the custodian must be required
to make a search and the fruitlessness of such search must be shown, before secondary
evidence can be admitted.43 The certificate of the custody of the document is
incompetent to prove the loss or destruction thereof. Such fact must be proved by some
person who has knowledge of such loss.

The proponent is also burdened to prove the due execution or existence of the
original as provided in Rule 130, Section 5 of the Revised Rules of Court:
When the original document is unavailable. – When the original document has
been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its
execution or existence and the cause of its unavailability without bad faith on his part,
may prove its contents by a copy, or by a recital of its contents in some authentic
document, or by the testimony of witnesses in the order stated.\
Rule 132, Section 20 of the Revised Rules of Court provides the procedure on how
the authenticity and due execution of a private document which is offered as authentic
may be proved:
Proof of private document. – Before any private document offered as authentic is
received in evidence, its due execution and authenticity must be proved either:

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(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.
Any other private document need only be identified as that which it is claimed to be.

The testimony of an eyewitness as to the execution of a private document must be

positive. He must state that the document was actually executed by the person whose
name is subscribed thereto.45 The admission of that party against whom the document is
offered, of the authenticity and due execution thereof, is admissible in evidence to prove
the existence, authenticity and due execution of such document.

In this case, there is no dispute that the original copies of the checks were returned
to VMCI after the same were negotiated and honored by the drawee bank. The originals
of the charge invoices were kept by VMCI. There is also no dispute that the prosecution
offered the photocopies of the invoices in evidence to prove the contents thereof, namely
that: (a) VMCI purchased 203,500 empty bags from NMI for the total price
ofP1,500,150.00; (b) VMCI received the said goods in good order and condition; and (c)
NMI charged VMCI for the purchase price of said goods. The prosecution offered the
checks to prove the contents thereof as well as the following: (a) VMCI drew and
delivered the checks to the NMI; (b) the said checks were endorsed by the petitioner; and
(c) the said checks were deposited by the petitioner with the Solidbank which was not the
official depository of NMI. Thus, the prosecution was burdened to prove the loss,
destruction or its inability to produce in court without bad faith on its part of the original
copies of the said invoices and checks without bad faith on its part.

We agree with the petitioner that the Certification signed by Carolina Diaz was
inadmissible in evidence against him because of the failure of the prosecution to present
her as witness and to testify on said certification.

However, the records show that, in obedience to the subpoena duces tecum and ad
testificandum issued by the trial court directing the VMCI to produce the originals of the
checks and the charge invoices, Bayaban, the Manager for Corporate Affairs of VMCI,
testified that all its records, including the charge invoices and checks, were destroyed
seven years ago in a flash flood which occurred on November 28, 1995, and that such
loss/destruction was known to all the employees of VMCI, including herself:

Contrary to the claim of the petitioner, the prosecution adduced preponderant

evidence to prove the existence, the due execution and the authenticity of the said
checks and charge invoices consisting of the admission of no less than the petitioner in
his counter-affidavit. The petitioner admitted therein that he received the total amount
of P1,500,150.00 from VMCI in full payment of the delivery and sale of the empty bags
by NMI to VMCI and that the said amount was in the custody of the said corporation,

With the admissions of the petitioner in his counter-affidavit, the prosecution even no
longer needed to adduce evidence aliunde to prove the existence, due execution and the
authenticity of the charge invoices and the checks.

All told then, the prosecution mustered the requisite quantum of evidence to prove
the predicates to the admission of the photocopies of the charge invoices and checks.

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

If you want to call for a production of a document, you had it subpoenaed, but then it turns out
that document is adverse to you, are you bound for such production?

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The answer is no. You are not obliged to offer it as evidence.

The rules on electronic evidence also has its own best evidence rule.

Rule 4, Section 1. Original of an electronic document. – An electronic document

shall be regarded as the equivalent of an original document under the Best Evidence
Rule if it is a printout or output readable by sight or other means, shown to reflect the
data accurately.

When can you consider copies to be an original document?

Electronic evidence: Rule 4, Section 2. 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,
such copies or duplicates shall be regarded as the equivalent of the original.

Notwithstanding the foregoing, copies or duplicates shall not be admissible to the

same extent as the original if:
(a) a genuine question is raised as to the authenticity of the original; or
(b) in the circumstances it would be unjust or inequitable to admit the copy in lieu of
the original.

What constitutes unjust or inequitable under these circumstances?

That we do not know, SC has not discussed yet on that matter.

SEC. 4. Original of document. –

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

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

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

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

We would always regard the original as one which is printed first or produced and from
which mere copies are made or produced. There can only be one original therefore.

But under the Rules on evidence, there are instances when subsequent documents are
also considered as original. (1) when the original of a document, the contents of which are the
subject of inquiry. Thus, when we speak of “original”, we do not mean original of an object
evidence but an original of a documentary evidence. In the latter, the contents of which the
subject of inquiry. It is therefore not correct to say, “an original of a gun” or “original of a shabu”
because there can be only 1 original, original object evidence.

Example: there’s a case involving a reporter who made a story and presented it to his
editor whose story was published to the newspaper. What is considered as the original? The story
as typed by the reporter or the story as it is published by the newspaper?

It would actually depend if the issue itself is the subject of inquiry, then the original would
be the story as typed and submitted by the reporter. But if the issue to be established is whether
the published story is light news or not, the original would be the story which appeared in print.

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In a suit against a telegraph company for failure to submit a message, the original is the
message submitted to he the company for transmission.

If the suit is for damages by the sender against the telegraph company because of the
delay in the transmission, the original is the message as received by the receiver.

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

If the data entered makes an entry of the transaction which is repeated several times or the files
which become part of the data of the company, each document where the entry was made is an
original as though as the entry was made at or near the time of the transaction and in the regular
course of business.

Also in an instance where a lawyers makes pleadings in 2 or more copies which are executed at
same time with identical contents, each copy is considered an original.

So are writings with identical contents such as newspaper, printing, mimeography and other
similar methods executed at the same time. Thus, each newspaper in the newsstand is an
original in itself.

Here’s a case that talks about “carbon copies”

TRANSPACIFIC INDUSTRIAL SUPPLIES V. CA

G.R. No. 109172 August 19, 1994
And
PEOPLE V. TAN
(105 Phil. 1242 [1959])

When carbon sheets are inserted between two or more sheets of writing paper so that
the writing of a contract upon the outside sheet, including the signature of the party to be
charged thereby, produces a facsimile upon the sheets beneath, such signature being
thus reproduced by the same stroke of pen which made the surface or exposed
impression, all of the sheets so written on are regarded as duplicate originals and either
of them may be introduced in evidence as such without accounting for the nonproduction
of the others.

When a document is executed in duplicate or multiplicate, each one of the parts is

primary evidence of the contents of the document and others not introduced in the case,
each is not an original. If several copies of a document are made by inserting a carbon
paper and each one is signed, the signed paper is the original and the others are mere
copies.

Two principal authors on the law on evidence have sustained the theory of the
admissibility of duplicate originals, as follows:

SEC. 386. . . . the best evidence rule is that rule which requires the highest grade
of evidence obtainable to prove a disputed fact. A "duplicate sales slip" has been
held to be primary evidence
SEC. 420. Duplicate originals. — Where letters are produced by mechanical
means and, concurrently with the original, duplicate are produced, as by placing
carbon paper and writing on the exposed surface at the same time, all are
duplicate originals, and any one of them may introduced in evidence without
accounting for the nonproduction of the other.

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SEC. 100. Carbon copies, however, when made at the same time and on the
same machine as the original, are duplicate originals, and these have been held
to be as much primary evidence as the originals.

We find that the ruling of the court below to the effect that the triplicates formed by the
used of carbon papers are not admissible in evidence, without accounting first for the
loss of the originals is incorrect and must be reversed.

Note: the original can vary as to what the issue is. If we talk of proof of payment, the best
evidence is the original receipt (OR); for the purpose of determining estafa, or qualified theft with
falsification also, you look at the tampered receipts.

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

To be considered as originals under this paragraph, certain requisites must be complied with:
1. there must be entries made repeated in the regular course of business and
2. the entries made must be at or near the time of the transaction (more or less, walay time
lapsed)

BAR QUESTION 2001

Pedro filed a complaint against Lucio for the recovery of a sum of money based on a
promissory note executed by Lucio. In his complaint, Pedro alleged that although the promissory
note says that it is payable within 120 days, the truth is that the note is payable immediately after
90 days but that if Pedro is willing, he may, upon request of Lucio give the latter up to 120 days to
pay the note. During the hearing, Pedro testified that the truth is that the agreement between him
and Lucio is for the latter to pay immediately after ninety day’s time. Also, since the original note
was with Lucio and the latter would not surrender to Pedro the original note which Lucio kept in a
place about one day’s trip from where he received the notice to produce the note and in spite of
such notice to produce the same within six hours from receipt of such notice, Lucio failed to do
so. Pedro presented a copy of the note which was executed at the same time as the original and
with identical contents.

a) Over the objection of Lucio, will Pedro be allowed to testify as to the true agreement or
contents of the promissory note? Why? (2%)
b) Over the objection of Lucio, can Pedro present a copy of the promissory note and have it
admitted as valid evidence in his favor? Why? (3%)

SUGGESTED ANSWER:

a) Yes, because Pedro has alleged in his complaint that the promissory note does not express the
true intent and agreement of the parties. This is an exception to the parol evidence rule. [Sec. 9
(b) of Rule 130, Rules of Court]

b) Yes, the copy in the possession of Pedro is a duplicate original and with identical contents.
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. [Sec. 4(b) of Rule 130]. Moreover, the failure of Lucio to produce the original of the
note is excusable because he was not given reasonable notice, as requirement under the Rules
before secondary evidence may be presented. (Sec. 6 of Rule 130, Rules of Court)

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Note: The promissory note is an actionable document and the original or a copy
thereof should have been attached to the complaint. (Sec. 7 of Rule 9, 1997 Rules of Civil
Procedure). In such a case, the genuineness and due execution of the note, if not denied under
oath, would be deemed admitted. (Sec. 8 of Rule 9, 1997 Rules of Civil Procedure)

BAR QUESTION 1997

When A loaned a sum of money to B. A typed a single copy of the promissory note, which
they both signed A made two photo (xeroxed) copies of the promissory note, giving one copy to B
and retaining the other copy. A entrusted the typewritten copy to his counsel for safekeeping. The
copy with A’s counsel was destroyed when the law office was burned.

a) In an action to collect on the promissory note, which is deemed to be the “original” copy
for the purpose of the “Best Evidence Rule”?
b) Can the photocopies in the hands of the parties be considered “duplicate original
copies”?
c) As counsel for A, how will you prove the loan given to A and B?

SUGGESTED ANSWER:
a. The copy that was signed and lost when the law office was burned is the only “original”
copy for purposes of the Best Evidence Rule. (Sec. 4 [b] of Rule 130).
b. No, They are not duplicate original copies. They cannot be deemed as having been made
at the same time with the original because they were not signed unlike the original.

NOTE: Now do not confuse what an original should be as that of the exceptions. Because if there
is a 3rd question here, that says, “can the parties present the duplicates in substitution for the
original was burned? You have to look at the exceptions to the best evidence rule. That when the
original is lost or destroyed, you have to prove the execution of the original, its existence and
justify its unavailability and present evidence of its competence, pwede na ang duplicates.

c. The loan given by A to B may be proved by secondary evidence through the xeroxed
copies of the promissory note. The rules provide that when the original document is lost
or destroyed, or cannot be produced in court, the offerer, upon proof of its execution or
existence and the cause of its unavailability without bad faith on his part, may prove its
contents by a copy, or by a recital of its contents in some authentic document, or by the
testimony of witnesses in the order stated. (Sec. 5 of Rule 130).

3. PAROL EVIDENCE RULE

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

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

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

(b) The failure of the written agreement to express the true intent and agreement of the
parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their successors in interest
after the execution of the written agreement.

The term "agreement" includes wills.

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What do you mean by “parol evidence”?

Parol evidence means oral evidence or extrinsic evidence or evidence aliunde or such
evidence that is outside of the four corners of a written agreement. Therefore you cannot do
anything or say anything that would modify, add or explain to the terms of the written agreement.

When is a contract considered to be reduced into writing?

The presumption is that the parties have already agreed to the terms that would govern
their contractual relationship. There is already meeting of the minds. And those terms are
supposed to be all there is. Walay mga side agreements or hidden agreements. Therefore, the
law says that if parties have made their agreements into writing, mao na na! bawal na
magdungag ug any terms to modify, add or explain to the terms of the written agreement.

SPOUSES EDRADA V. SPOUSES RAMOS

G.R. NO. 154413, AUGUST 31, 2005

The parol evidence rule forbids any addition to, or contradiction of, the terms of a written
agreement by testimony or other evidence purporting to show that at or before the
execution of the written agreement, other or different terms were agreed upon by the
parties, varying the purport of the written contract.

When the terms of an agreement have been reduced to writing, parties cannot be
permitted to adduce evidence to allege practices which to all purposes would alter the
terms of the written agreement. Whatever is found on the writing is understood to have
been waived and abandoned.

What would be the BASIS of the parol evidence rule?

1. It is based on the principle of HIERARCHY OF EVIDENCE. In general, documentary

evidence prevail over oral or parol evidence. (hierarchy: real or object evidence 
documentary parol evidence)

2. Based on the principle of WAIVER AFTER INTEGRATION.-- he rule is based on the

presumption that the parties "have made the writing the only repository and memorial of
the truth and whatever is not found in the writing must be understood to have been
waived and abandoned." As Wigmore would put it, "When a jural act is embodied in a
single memorial, all other utterances of the parties on that topic are legally immaterial for
the purpose of determining what are the terms of their act."

3. It is based on the principle of COMPARATIVE ACCURACY of written agreements over all

else that rest merely on the fleeting memory of man.

Suppose A entered into a contract with B. tapos after 5 years, nangutana si B unsa daw ang
terms of the contract. Nakalimot na xa. Remember, human memory is fleeting. So it is always
best to put all agreements into writing.

4. It is based on the BELIEF THAT PAROL EVIDENCE is most prone to fabrication.

5. It is based on the hornbook rule in the interpretation of contracts that gives PRIMACY TO
THE INTENTION OF THE PARTIES AS THE LAW MAY GIVE THEM.

6. It is based on the policy of the law to give stability to written agreements and to remove
the temptation of perjury.

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REBULDELA V. IAC
(155 SCRA 520, 529, [NOVEMBER 11, 1987]),

the parol evidence rule forbids any addition to or contradiction of the terms of a written
instrument. Oral testimony cannot prevail over a written agreement of the parties, the
purpose of the parol evidence rule being to give stability to written agreements and to
remove the temptation and possibility of perjury, which would be afforded if parol
evidence were admissible.

If a contract violates the parol evidence rule, does it have any implications as to its
validity?

While parol evidence rule has not proclaimed itself to be a limitation on the vitality of a
contract, it is a requirement that must be taken into consideration, as a condition precedent to a
party’s ability to prove the same. Even if the contract is valid in its oral form, contracts being
generally and essentially consensual, it is virtually futile if you cannot therefore sue upon it or if
you are barred without the presence of a written document relative to same agreement. In this
regard, the Parol Evidence rule and the Statute of Frauds embodied in Article 1403 of the civil
code are important.

HEIRS OF DEL ROSARIO V. SANTOS

G.R. No. L-46892 September 30, 1981

What appellants really intended to prove through the alleged false notarization of the
deed of sale is the true import of the matter, which according to them, is a mere tentative
agreement with appellee. As such, it was not intended to be notarized and was merely
entrusted to appellee's care and custody in order that: first, the latter may secure the
approval of one Erlinda Cortez to their (appellants') offer to pay a debt owing to her in the
amount of P2,000.00 to appellee instead of paying directly to her as she was indebted to
appellee in various amounts exceeding P2,000.00; and second once the approval is
secured, appellee would render an accounting of collections made from Erlinda showing
in particular the consideration of P2,000.00 of the deed of sale duly credited to Erlinda's
account.

According to appellants, they intended to prove at a full dress trial the material facts: (1)
that the aforesaid conditions were not fulfilled; (2) that Erlinda Cortez paid her total
indebtedness to appellee in the amount of P14,160.00, the P2,000.00 intended to be
paid by appellant included; and (3) that said Erlinda decided to forego, renounce and
refrain from collecting the P2,000.00 the appellants owed her as a countervance
reciprocity of the countless favors she also owes them.

Being conditions which alter and vary the terms of the deed of sale, such conditions
cannot, however, be proved by parol evidence in view of the provision of Section 7, Rule
130 of the Rules of Court which states as follows:
Sec. 7. Evidence of written agreements when the terms of an agreement
have been reduced to writing, it is to be considered as containing all
such terms, and, therefore, there can be, between the parties and their
successors in interest, no evidence of the terms of the agreement other
than the contents of the writing, except in the following cases:
(a) Where a mistake or imperfection of the writing, or its failure to
express the true intent and agreement of the parties, or the validity of the
agreement is put in issue by the pleadings;
(b) When there is an intrinsic ambiguity in the writing. The term
"agreement" includes wills."

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The parol evidence rule forbids any addition to or contradiction of the terms of a written
instrument by testimony purporting to show that, at or before the signing of the document,
other or different terms were orally agreed upon by the parties. 12
While it is true, as appellants argue, that Article 1306 of the New Civil Code provides that
"the contracting parties may establish such stipulations, clauses, terms and conditions as
they may deem convenient, provided that they are not contrary to law, morals, good
customs, public order, or public policy" and that consequently, appellants and appellee
could freely enter into an agreement imposing as conditions thereof the following: that
appellee secure the written conformity of Erlinda Cortez and that she render an
accounting of all collections from her, said conditions may not be proved as they are not
embodied in the deed of sale.

The only conditions imposed for the execution of the Deed of Confirmation of Sale by
appellants in favor of appellee are the release of the title and the approval of the
subdivision plan. Thus, appellants may not now introduce other conditions allegedly
agreed upon by them because when they reduced their agreement to writing, it is
presumed that "they have made the writing the only repository and memorial of truth, and
whatever is not found in the writing must be understood to have been waived and
abandoned."
Neither can appellants invoke any of the exceptions to the parol evidence rule, more
particularly, the alleged failure of the writing to express the true intent and agreement of
the parties. Such an exception obtains where the written contract is so ambiguous or
obscure in terms that the contractual intention of the parties cannot be understood from a
mere reading of the instrument. In such a case, extrinsic evidence of the subject matter
of the contract, of the relations of the parties to each other, and of the facts and
circumstances surrounding them when they entered into the. contract may be received to
enable the court to make a proper interpretation of the instrumental. 14 In the case at bar,
the Deed of Sale (Exh. A or 1) is clear, without any ambiguity, mistake or imperfection,
much less obscurity or doubt in the terms thereof. We, therefore, hold and rule that
assigned errors III and IV are untenable.

What are therefore covered under the parol evidence rule? To what does the rule apply?

In order for the parol evidence rule to apply, there must be an agreement. It is understood
that an agreement must be contract. Thus, when there is meeting of the minds of the parties and
the same is reduced in writing, the resulting physical contract is covered by the parol evidence
rule. Hwoever, the general understanding of a written agreement does nto apply to the last
paragraph of section 9: “the term agreement includes wills”.

Is a will an agreement?

NO, but the term agreement includes wills only by fiction and only for the purpose of parol
evidence rule. While a will is clearly not an agreement because it is a strictly personal and a
unilateral act of testator, howver, by force of the rules and apparent legal fiction, a will is an
agreement as well although there is clearly no meeting of the minds.

But why is it included under the Parol evidence rule?

The danger sought to be avoided by the requirement of the parol evidence rule is also
present in the making of wills and are also deemed as prevalent in as much as the testator or the
person who made the will, the decedent, can no longer object to attempts to vary his
testamentary event as his voice is already silenced by it.

Kung ang agreement gani, bawal mugamit ug parol evidence para i-vary xa, unsa pa
kaha ang wills?

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AZUELA V. CA
G.R. No. 122880 April 12, 2006

Whatever the inclinations of the members of the Code Commission in incorporating

Article 805, the fact remains that they saw fit to prescribe substantially the same formal
requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced that
these remained effective safeguards against the forgery or intercalation of notarial
wills.34 Compliance with these requirements, however picayune in impression, affords the
public a high degree of comfort that the testator himself or herself had decided to convey
property post mortem in the manner established in the will. 35The transcendent legislative
intent, even as expressed in the cited comments of the Code Commission, is for the
fruition of the testator’s incontestable desires, and not for the indulgent admission of wills
to probate.

When the law says written agreement, of course, there has to be some writing. What type
of agreement or document are we talking about? Can it be a private document? No
notarization by notary public? Is it required that it is a unilateral document where only 1
party signs it?

NO. It refers to ANY AGREEMENT for so long as it is in writing, whether public or private
document. For so long as it is a written agreement, the parol evidence rule applies.

INCIONG V. CA
[G.R. No. 96405. June 26, 1996]

Nor is there merit in petitioner's assertion that since the promissory note "is not a
public deed with the formalities prescribed by law but x x x a mere commercial paper
which does not bear the signature of x x x attesting witnesses," parol evidence may
"overcome" the contents of the promissory note. Clearly, the rule does not specify that
the written agreement be a public document.

What is required is that agreement be in writing as the rule is in fact founded on

"long experience that written evidence is so much more certain and accurate than that
which rests in fleeting memory only, that it would be unsafe, when parties have
expressed the terms of their contract in writing, to admit weaker evidence to control and
vary the stronger and to show that the parties intended a different contract from that
expressed in the writing signed by them." [11] Thus, for the parol evidence rule to apply, a
written contract need not be in any particular form, or be signed by both parties. As a
general rule, bills, notes and other instruments of a similar nature are not subject to be
varied or contradicted by parol or extrinsic evidence.

The rule is NOT absolute. Pag naa nay contrata, ang nakasulat lang sa kontrata, mao ran a ang
rights and obligations sa parties. Wala nay pwede pa madungag other than the document itself.
WHAT AR THE EXCEPTIONS?

A party may present evidence to modify, explain or add to the terms of the agreement, the
requirement only that, if he puts in issue in his pleading:
1. An intrinsic ambiguity, mistake or imperfection in the written agreement;
2. The failure of the written agreement to express the true intent and agreement of
the parties thereto;
3. The validity of the written agreement; or
4. The existence of other terms agreed to by the parties or their successors in
interest after the execution of the written agreement.

1st exception: An intrinsic ambiguity, mistake or imperfection in the written agreement;

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“AMBIGUITY”

What do you mean by ambiguity?

It means uncertainty as to the meaning usually caused by words and phrases with more
than 1 meaning. Applying to the rule, ambiguity means that agreement is susceptible to 2 or more
interpretations.

It is of 2 types:

1. PATENT OR EXTRINSIC AMBIGUITY— Patent ambiguity is that ambiguity which is

apparent on the face of an instrument to any one perusing it, even if he be unacquainted
with the circumstances of the parties. In the case of a patent ambiguity parol evidence is
admissible to explain only what has been written, not what it was intended to write.

Question: is this curable by parol evidence? Meaning if written agreement is patently

ambiguous; can you introduce oral evidence to explain its terms?

If you look at rule 130 section 9, the law is actually silent for it only talks about
intrinsic ambiguity. Let’s relate this to your succession. In a will it says, “I give to bangs by
way of legacy, something!” so you know it to be a real property for it is termed as legacy.
This is patent ambiguity?

NO. Clearly, it is not merely a mistake in the description. It amounts to NO

description at all!

BORILLO V. CA
G.R. No. 55691 May 21, 1992

Before parol evidence may be admitted in order to identify, explain or define the subject
matter of a writing, it must first be shown that the writing itself already contains a
description sufficient to serve as a foundation for the admission of such parol evidence;
the evidence should also be consistent with the writing. Otherwise stated, in order to
admit parol evidence to aid in the description of the subject matter of a deed or other
writing, there must be a description that will serve as a foundation for such evidence; the
writing must at least give some data from which the description may be found and made
certain. Parol evidence is not admissible to identify the property where the description
thereof is so vague as to amount to no description at all. In other words, parol evidence is
not permitted to supply a description, but only to apply it.

When is it curable?

In other words and more generally, if the court, placing itself in the situation in which the
testator or contracting party stood at the time of executing the instrument, and with a full
understanding of the force and import of the words, cannot ascertain his meaning and intention
from the language of the instrument, then it is a case of incurable, hopeless uncertainty and the
instrument is, therefore, so far inoperative and void."

Extrinsic ambiguity means no description at all. What if it’s merely imperfect?

FALSA DEMONSTRATIO NON NOCET

- “False description will not invalidate an instrument”
- The erroneous description will be considered as a surplusage.

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ILLUSTRATION: In a deed of sale of a parcel of land covered by: TCT 12345, located
in City of Muntinlupa. There is really a land covered by TCT 12345 with same technical
description however it is not located in Muntinlupa, but in Laguna. The erroneous description will
not invalidate the contract.

If the description is imperfect, the principle of Falsa demonstratio non nocet would apply -
A false or mistaken description does not vitiate”. The principle of falsa demonstratio non
nocet means that if, on considering the language of a will with the aid of any admissible extrinsic
evidence, the court comes to the conclusion that the testator intended to pass something and can
determine what that something is, then the fact that the testator gave it a wrong description in his
will does not prevent the will taking effect in regard to the subject matter intended by the testator.
The principle may be applied in whatever part of the description the error occurred

Example: Thus, if T makes a specific gift of certain stock, i.e. preferred stock and T at the date of
his will possessed no such stock but possessed only a common stock which the court decides
was meant, the latter stock passes under the gift despite the false description. Will is not
invalidated.

2. LATENT OR INTRINSIC AMBIGUITY— Latent ambiguity is where the wording of an

instrument is on the face of it clear and intelligible, but may, at the same time, apply
equally to two different things or subject matters, as where a legacy is given "to my
nephew, John," and the testator is shown to have two nephews of that name. A latent
ambiguity may be explained by parol evidence, for, as the ambiguity has been brought
about by circumstances extraneous to the instrument, the explanation must necessarily
be sought for from such circumstances.

Are these the only 2 types of ambiguities? Some would insert INTERMEDIATE
AMBIGUITY?
This refers to a situation where an ambiguity partakes of the nature of both patent and
latent. In this, the word are seemingly clear and with a settled meaning, are actually equivocal
and admits of two interpretations.

If patent ambiguity is not curable by parol and latent ambiguity is curable by parol, what about
intermediate ambiguity which is in between? Is it curable by parol evidence?
YES. Here, parol evidence is admissible to clarify the ambiguity provided that the matter
is put in issue by the pleader. Example: Dollars, tons and ounces

US cases and some Philippine cases recognized intermediate ambiguity, and evidence aliunde
may be admitted by the court to explain or add to its meaning. This arises by the use of equivocal
word/s which is susceptible of more than one interpretation.

PALANCA V. WILSON COMPANY

G.R. No. L-11310 January 31, 1918

Defendant sold to plaintiff a distilling apparatus of guaranteed capacity of 6,000 liters

daily. Defendant claimed that the phrase referred to “receiving” capacity. Here the word
“capacity” was susceptible of two interpretations. SC held that parol evidence is
admissible to show which of the two interpretations meant by the parties.

SUMMARY of the Rules governing the admissibility of parol evidence to explain ambiguity
1) Where the instrument itself seem to be clear and certain on its face, and the ambiguity
arises from extrinsic or collateral matter, the ambiguity may be helped by parole evidence
(Latent ambiguity)
2) Where the ambiguity consists in the use of equivocal words designing the person or
subject-matter, parole evidence of collateral or extrinsic matter may be introduced for the

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purpose of aiding the court in arriving at the meaning of the language used
(Intermediate ambiguity)
3) Where the ambiguity is such that a perusal of the instrument shows plainly that
something more must be added before the reader can determine what of several things is
meant, the rule is inflexible that parol evidence cannot be admitted to supply the
deficiency.

“MISTAKE”
BPI V. FIDELITY AND SURETY COMPANY
October 19, 1927 G.R. No. L-26743

To justify the reformation of a written instrument upon the ground of mistake, the
concurrence of three things is necessary:

1. Mistake should be of fact – does not correctly express the intention of the
parties applies only to a mistake of facts

2. Mistake should be mutual or common to both parties to the instrument –

Reformation is then given because mistake is mutual. The parties must have
come to an actual oral agreement before they have attempted to reduce it in
writing,

3. The mistake should be alleged and proved by clear and convincing

evidence

MAGELLAN MARKETING V. CA
G.R. No. 95529 August 22, 1991

Nature of bill of lading: there’s a contract of importation here exported by Philipines to

Japan is 136,000 anahaw fans. Japan contends that according to the bill of lading, bawal
ang transshipment. Japan did not accept the goods kay naa daw transshipment.
According to Magellan Marketing, kelangan bayaran sa Japan coz mistake lang daw ‘to
nga na-stamp sa bill of lading na nay transshipment. Petitioner insists that "(c)onsidering
that there was no actual transhipment of the Anahaw fans, then there is no occasion
under which the petitioner can agree to the transhipment of the Anahaw fans because
there is nothing like that to agree to" and "(i)f there is no actual transhipment but there
appears to be a transhipment in the bill of lading, then there can be no possible reason
for it but a mistake on the part of the private respondents. Petitioner, in effect, is saying
that since there was a mistake in documentation on the part of private respondents, such
a mistake militates against the conclusiveness of the bill of lading insofar as it reflects the
terms of the contract between the parties, as an exception to the parol evidence rule, and
would therefore permit it to explain or present evidence to vary or contradict the terms of
the written agreement, that is, the bill of lading involved herein.

HELD: It is a long standing jurisprudential rule that a bill of lading operates both as a
receipt and as a contract. It is a receipt for the goods shipped and a contract to transport
and deliver the same as therein stipulated. As a contract, it names the parties, which
includes the consignee, fixes the route, destination, and freight rates or charges, and
stipulates the rights and obligations assumed by the parties. 15 Being a contract, it is the
law between the parties who are bound by its terms and conditions provided that these
are not contrary to law, morals, good customs, public order and public policy. 16 A bill of
lading usually becomes effective upon its delivery to and acceptance by the shipper. It is
presumed that the stipulations of the bill were, in the absence of fraud, concealment or
improper conduct, known to the shipper, and he is generally bound by his acceptance
whether he reads the bill or not. 17

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The holding in most jurisdictions has been that a shipper who receives a bill
of lading without objection after an opportunity to inspect it, and permits the carrier to act
on it by proceeding with the shipment is presumed to have accepted it as correctly
stating the contract and to have assented to its terms. In other words, the acceptance of
the bill without dissent raises the presumption that all the terms therein were brought to
the knowledge of the shipper and agreed to by him and, in the absence of fraud or
mistake, he is estopped from thereafter denying that he assented to such terms. This rule
applies with particular force where a shipper accepts a bill of lading with full knowledge of
its contents and acceptance under such circumstances makes it a binding contract. 18
In the light of the series of events that transpired in the case at bar, there can be no
logical conclusion other than that the petitioner had full knowledge of, and actually
consented to, the terms and conditions of the bill of lading thereby making the same
conclusive as to it, and it cannot now be heard to deny having assented thereto. As
borne out by the records, James Cu himself, in his capacity as president of MMMC,
personally received and signed the bill of lading. On practical considerations, there is no
better way to signify consent than by voluntary signing the document which embodies the
agreement.

ROSARIO TEXTILE V. HOME BANKERS

[G.R. No. 137232. June 29, 2005]

SC discussed on the applicability of parol evidence rule on suretyship.

Petitioner Yujuico contends that the suretyship agreement he signed does not bind
him, the same being a mere formality.
We reject petitioner Yujuico’s contentions for two reasons.
First, there is no record to support his allegation that the surety agreement is a
“mere formality;” and

Second, as correctly held by the Court of Appeals, the Suretyship Agreement signed
by petitioner Yujuico binds him. The terms clearly show that he agreed to pay the bank
jointly and severally with RTMC. The parole evidence rule under Section 9, Rule 130 of
the Revised Rules of Court is in point, thus:
Xxxxxxxxx

Under this Rule, the terms of a contract are rendered conclusive upon the parties
and evidence aliunde is not admissible to vary or contradict a complete and enforceable
agreement embodied in a document. We have carefully examined the Suretyship
Agreement signed by Yujuico and found no ambiguity therein. Documents must be taken
as explaining all the terms of the agreement between the parties when there appears to
be no ambiguity in the language of said documents nor any failure to express the true
intent and agreement of the parties.[

“IMPERFECTION” and “FAILURE OF THE WRITTEN AGREEMENT TO EXPRESS TRUE

INTENT OF PARTIES”

“Imperfection” means that the writing is incomplete and doses not express the true
agreement between the parties. Here, there is a failure between the parties to lay down all the
conditions which are to constitute the agreement.

What makes this different from the 2 nd exception:”failure of the agreement to express the true
agreement and intent between the parties thereto”?

To my mind, there is really no distinction. It is practically the same. Even the SC is of the
same opinion. In the case of …

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AMPARO DEL ROSARIO V. SANTOS

G.R. No. L-46892 September 30, 1981

Such an exception obtains where the written contract is so ambiguous or obscure in

terms that the contractual intention of the parties cannot be understood from a mere
reading of the instrument. In such a case, extrinsic evidence of the subject matter of the
contract, of the relations of the parties to each other, and of the facts and circumstances
surrounding them when they entered into the contract may be received to enable the
court to make a proper interpretation of the instrument.

The 2nd exception is applicable mostly to cases where there is failure of the agreement to
express the true intent of the parties. This is applicable in:
1. Equitable mortgage
2. Leases with option to buy

In these 2 agreements, it is actually a contract of sale but denomination of terms is different.

What is then your remedy?
ACTION FOR REFORMATION UNDER Article 1359. Fraud is a ground for reformation
and not only mistake.

Does reformation apply to agreements covered under the Parol evidence rule? In an action
for reformation, it is precisely what you are going to say, that there was a mistake.

IT APPLIES. If a contract is susceptible of reformation, then section 9 also applies with

the EXCEPTION OF 1 THING: that is with respect to WILLS. You cannot reform to wills. It may be
an agreement by legal fiction, but by its nature, it is not susceptible by reformation. Whether there
is fraud, mistake or inequitable conduct, dili pwede.

What if the mistake, fraud, inequitable conduct or accident which resulted to failure to
express the true agreement between the parties but really prevented the making of the
minds, is reformation proper?

No. there being no meeting of the minds, there being a vice in consent, the remedy is
ANNULMENT OF THE CONTRACT.

Why can there be no reformation in wills?

Basis: Article 1366. There shall be no reformation in the following cases:

(1) Simple donations inter vivos wherein no condition is imposed;
(2) Wills;
(3) When the real agreement is void.

Reason:
1. Will is not a contract
2. Will is an agreement ONLY for the purpose fo the parol evidence rule.

CUYUGAN V. SANTOS
March 3, 1916 G.R. No. L-10265

Effect of statute of frauds. – The statute of frauds does not stand in the way of treating an
absolute deed as a mortgage, when such was the intention of the parties, although the
agreement for redemption or defeasance rests wholly in parol, or is proved by parol
evidence. The courts will not permit the statute to be used as a shield for fraud, or as a
means for perpetrating fraud.

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Rule prohibiting contradiction of written documents. – The admission of parol

testimony to prove that a deed absolute in form was in fact given and accepted as a
mortgage does not violate the rule against the admission of oral evidence to vary or
contradict the terms of a written instrument.

Having disposed of the contention that the provisions of the new Code of Civil Procedure,
enacted under American sovereignty, forbid the introduction of parol evidence to establish the
true nature of transactions such as that under consideration in the case at bar, we come now
to consider whether there is anything in the Spanish Codes which denies the power of the
courts to enforce the equitable doctrine announced by the Supreme Court of the United
States with reference to agreements and understandings of this nature.

In the light of these elementary and basic principles of the Code there can be no question, in
the absence of express statutory prohibition, as to the validity of an agreement or
understanding whereby the lender of money, who as security for the repayment of the loan
has taken a deed to land, absolute on its face or in the form of a deed reserving a mere right
of repurchase to the vendor, obligates himself to hold such deed, not as evidence of a
contract of sale but by way of security for the repayment of the debt; and that unless the
rights of innocent third persons have intervened the lender of the money may be compelled
to comply specifically with the terms of such an agreement, whether it be oral or written; and
further, that he will not be permitted, in violation of its terms, to set up title in himself or to
assert a claim or absolute ownership.

If the parties actually enter into such an agreement, the lender of the money is legally and
morally bound to fulfill it. Of course such an oral contract does not give the borrower a real
right in the lands unless it is executed in compliance with the formalities prescribed by law. If
entered into orally, it creates a mere personal obligation which in no wise effects the lands,
and if the lender conveys the lands to innocent third persons, the borrower must content
himself with a mere right of action for damages against the lender, for failure to comply with
his agreement.

But so long as the land remains in the hands of the lender, the borrower may demand the
fulfillment of the agreement, and a mere lack of any of the formalities prescribed under the
Spanish Code for the execution of contracts affecting real estate will not defeat his right to
have the contract fulfilled, as the lender may be compelled in appropriate proceedings to
execute the contract with the necessary prescribed formalities.

3RD EXCEPTION: the validity of the written agreement

Here, a party seeks to present oral evidence to prove that the contract is not valid. As in all other
exceptions, he must raise the invalidity of the contract in writing.

Example: Complaint stating that B wala pa kabayad. Then, B in his answer attaches and
contends that they have a contract novating the contract. Can A later on during trial, present
testimonial or oral evidence saying that the novated contract is a void contract, therefore the first
contract is the one that stands? Can he?

No. because he never filed a reply. If you do not file a reply, how can you raise the
invalidity of the subsequent novated contract. It is a requisite under the parol evidence rule that
you must place it as an issue—the invalidity of the contract in your PLEADING. Remember in civil
procedure that when there is an actionable document in his answer. You have to file a reply and
the reply becomes a mandatory pleading. Otherwise, you cannot contest it unless you deny it
under oath.

Another situation: agreement between A and B for sale of the land. Pagkita nila, gihatag ni
seller A ang title ng land then a receipt was issued to B. ana si B, “hulat sa dira ha kay

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magwithdraw pa ko”. What happened was, B went to the registry of deeds para
magpatitulo. Now, how can A as the seller file an action against B when in fact, there was a
receipt which was issued saying that a consideration was given. (remember in your law on
contracts that a sale without a consideration is void.) how will A now prove that there was no
consideration?

As a general rule, A cannot prove that he did not receive the consideration of the contract. But for
as long as he puts in issue in his pleading, the fact that contract is not valid because of lack of
consideration, ten he will be able to present testimonial or parol evidence to prove otherwise.
Because if you decide otherwise and estop that party from claiming, he will not be able to really
prove he did not receive anything as stated in the contract.

The same thing also applies to FORGERY. In the case of…

ALORIA V. CLEMENTE
February 28, 2006

Forgery, however, “cannot be presumed; it must be proved by clear, positive and

convincing evidence and whoever alleges it has the burden of proving the same.

BOUGH V. CANTIVEROS
G.R. No. 13300 September 29, 1919

While thus as the law well says "public instruments are evidence of the fact which gave
rise to their execution" and are to be considered as containing all the terms of the
agreement, yet, if the validity of the agreement is the issue, parole evidence may be
introduced to establish illegality or fraud. Evidence to establish illegality or fraud, is
expressly permitted under section 285 of the Code of Civil Procedure, and may be
proved by circumstantial evidence, aided by legitimate inferences from the direct facts.

What about “REPRESENTATIONS”?

There is what we call “policitacion stage”. as seller, of course you engage in ‘traders talk”.
But there is a difference between a mere traders talk and warranty. Because if the party believed
that the presentation is true and because of it he relied on that representation to enter into the
contract of sale, that becomes _____. Magsabot mo sa sale of land..muignon ka nga, “kabalo
baka, kani kay gipuy-an ni sa mga Japanese tung-una. Naa ni hidden treasure!” ana imuhang
representation.

Now you want to prove later on, because acdg to you, you were duped into entering a
contract, that were it not for the statement of seller that there was a hidden treasure, you would
not have entered into the same. That is something that will never appear in the contract. How can
you therefore prove that there was fraud or misrepresentation and that as to you, it is invalid and
then present parole evidence rule prove the same?

In the case of ..

WOODHOUSE V. HALILI
G.R. No. L-4811 July 31, 1953

The act or statement of the plaintiff was not sought to be introduced to change or
alter the terms of the agreement, but to prove how he induced the defendant to enter into

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it — to prove the representations or inducements, or fraud, with which or by

which he secured the other party's consent thereto. These are expressly excluded from
the parol evidence rule.

Fraud and false representation are an incident to the creation of a jural act, not to
its integration, and are not governed by the rules on integration. Were parties prohibited
from proving said representations or inducements, on the ground that the agreement had
already been entered into, it would be impossible to prove misrepresentation or fraud.
Furthermore, the parol evidence rule expressly allows the evidence to be introduced
when the validity of an instrument is put in issue by the pleadings.

PERO..sales talk..that is not part of the exceptions.

4th exception: the existence of other terms agreed to by the parties and their successors in
interest after the execution of the written agreement.

For purposes of reckoning, let us shorten that to mean: SUBSEQUENT AGREEMENTS.

Subsequent oral agreements are taken to mean as not among the exceptions to the parol
evidence rule. For example, D borrowed money from A. for this, D signed promissory note and
the maturity was fixed at July 3, 1995 but when July 3 came, D did not pay, thus A sues B
payment for the due account. D’s defense was that his account was not yet due because after the
execution of the PN , A agreed to extend the period of payment to December 3, 1995. Oral
agreement happened after execution of the promissory note.

Can D therefore produce oral evidence to prove the subsequent oral agreement he had
with A?

YES. He can present. Because If you really look at it, it resulted to the novation of the
original contract.

The principle to remember is :PARTIES CANNOT INCORPORATE IN THE CONTRACT

OR INSTRUMENT SOMETHING THAT THEY WILL AGREE ON THE FUTURE. The parties
cannot determine in advance what they may agree in the future.

Isn’t this a violation to the parol evidence rule?

NO. Remember, what is guaranteed only under this exception is admissibility. They can
be admitted but however, does it guarantee credibility? NO. This is altogether different.
Remember again the hierarchy of evidence. Testimonial will always be prone to fabrication and
therefore prone to perjury and fraud.

Principle: It does not guarantee the credibility or weight of the object evidence which means that
court may or may not believe the oral evidence altogether.

Remember: it is awkward for parties to enter into oral agreements and later reduce into writing
and leave out some of the agreements. All prior agreements are deemed incorporated in the main
agreement under the so called, “INTEGRATION AGREEMTN RULE” future agreements are not
so covered.

Remember the parol evidence rule  Kung nagkasinabot na ang mga parties, there is no other
evidence of that other than the document itself. He cannot present any evidence to modify,
explain or add to the terms of the written agreement.

What is covered by Parol evidence rule?

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ONLY Prior and contemporaneous agreements are deemed to be merged

into writing conformably with the ‘integration agreement rule’. So all agreements, oral
agreements, prior to execution of the contract are deemed integrated. So if you claim that there
was oral agreement prior to execution, that cannot be proved by parole evidence. It is deemed to
be integrated dapat.

What are not covered by the parol evidence rule?

1. SUBSEQUENT AGREEMENTSnotwithstanding the fact that such agreement may

have the effect of adding to, changing or modifying or altogether abrogating the contract
between the parties.

In other words, what is guaranteed only is its ADMISSIBLITY and NOT its
believability or credibility in so far as the court is concerned. This is because it was
subsequent to the execution of the agreement and reduced into writing.

2. COLLATERAL AGREEMENTS—which although are oral and contemporaneous with

writing are separate and distinct agreement; also known as “contemporaneous oral
agreements”. (PNB v. Seeto, 91 Phil. 756)

3. ALL OTHER AGREEMENTS, whether prior and contemporaneous, subsequent or

collateral, if the issue revolves around fraud and false representation, since they are
incidental to the execution and not to the integration. (Woodhouse vs. Halili, 1953)

4. All other agreements, whether prior and contemporaneous, subsequent or collateral,

when third parties who are not privy thereto are involved. (Lechugas vs. CA, 1986)

NOTES:

What is meant by “contemporaneous agreement”?

a. Contemporaneous agreement. A contemporaneous agreement is one entered into at

the same time as the agreement which has been reduced to writing.

MACTAN CEBU INTERNATONL AIRPORT V. CA

October 30, 1996

Where a parol contemporaneous agreement was the moving cause of the written
contract, or where the parol agreement forms part of the consideration of the written
contract, and it appears that the written contract was executed on the faith of the parol
contract or representation, such evidence is admissible. It is recognized that proof is
admissible of any collateral parol agreement that is not inconsistent with the terms of the
written contract though it may relate to the same subject matter.

The rule excluding parol evidence to vary or contradict a writing does not extend so far
as to preclude the admission of existing evidence to show prior or contemporaneous
collateral parol agreements between the parties, but such evidence may be received,
regardless of whether or not the written agreement contains any reference to such
collateral agreement, and whether the action is at law or in equity.

CAVEAT still applies: it may be admitted but it is not a guarantee that it is believable.

Now, remember the rule: a contemporaneous oral agreement can be proved by parol for as
long as ti is separate and distinct from the written agreement.

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b. How do you determine if such COA is separate and distinct?

Tests to determine whether a contemporaneous oral agreement is separate and distinct from the
written agreement and therefore provable by parol evidence:

1) The first test is the subject-matter of the two agreements. If the subject-matter of the
written agreement is different from that of the contemporaneous oral agreement,
then the latter is a separate and distinct agreement and, therefore, provable by parol
evidence.
2) If the two agreements refer to the same subject-matter, the test is to determine
whether or not the contemporaneous oral agreement is separable, then the
contemporaneous oral agreement is separate and distinct and, therefore, probable by
parol evidence. (Lese v. Lamprecht, 196 N.Y. 32)

c. Example of agreement which CANNOT be proven by parol evidence : Express trusts

concerning real property cannot be proven by parol evidence because title and
possession cannot be defeated by oral evidence which can easily be fabricated and
contradicted. (Sinaon, et al., v. Sorongon, et al., 136 SCRA 410)

d. Examples of collateral agreements which CAN be proved by parol evidence:

1. An agreement of reconveyance is a distinct agreement, separate from the sale itself,

although the two agreements are usually contained in one and the same document.
(Laureano v. Kilayco, 34 Phil. 148; Yacapin v. Neri, 40 Phil. 61)

2. Inducements and representations which led to the execution of an agreement may be

proven by parol evidence because they do not vary the terms of the agreement.
(Woodhouse v. Halili, 93 Phil. 526; Bough v. Cantiveros, 40 Phil. 209)

3. Parol evidence is admissible to prove an independent and collateral agreement which

constitutes an inducement to the making of the sale or part of the consideration thereof.
(Robles v. Lizarraga Hnos., 50 Phil. 387)

4. A condition precedent not stipulated in writing is provable by oral evidence. REASON:

Before the happening of the condition, there is no written agreement yet to which the
parol evidence may apply.

LAND SETTLEMENT & DEVELOPMENT CORP. V. GARCIA PLANTATION

7 SCRA 750 (April 24,1963)

An exception to PER may be put in issue in answer to counterclaim; when

operation of contract made to depend upon occurrence of an event, which for that reason
is a condition precedent, such may be established by parol evidence, since if it is proven,
there will be no contract. this is not varying the terms of the written contract by extrinsic
agreement, for the simple reason that there is no contract in existence; there is nothing to
which to apply the excluding rule

5. Verbal assurances given by the indorser of an out-of-town check to the employees of the
bank where it was presented for encashment that he would refund the amount if the
check should be dishonored by the drawee bank is a collateral agreement separate and
distinct from the indorsement, by virtue of which the first bank was induced to cash the
same, and therefore, provable by parol evidence. (PNB v. Seeto, 91 Phil. 756)

Example: order instrument which provides for the consideration of the giving of the check
and negotiated but subsequently nakabutang nalang “Pay to B…D” no consideration

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stated. According to SC, by the nature of the indorsement, the consideration is

provable by parol evidence.

6. Any prior or contemporaneous conversation in connection with a note or its indorsement

may be proved by parol evidence. (PNB v. Seeto, 91 Phil. 756; Philips v. Preston, 5 How.
[U.S.] 278)

7. An extrinsic agreement between indorser and indorsee which cannot be embodied in the
instrument without impairing its credit may be proved by parol evidence. (PNB v. Seeto,
91 Phil. 756; 9 Wigmore 148)

8. The fact that parties who appear to have signed as principals did so as merely sureties is
provable by parol evidence. (Tan Machan v. De la Trinidad, 3 Phil. 684)

NOTARIZED DOCUMENT V. PAROL EVIDENCE

REMEMBER: Most contracts right now are notarized. If a document is notarized by a notary
public duly possessed with commission to administer oaths and notarized contract within the lex
loci celebrationis, what are the effects?

1. It becomes a public document which is binding upon the whole world rather than merely
binding between contracting parties. The world is given constructive notice of the same.
2. It is already Impressed with the presumption of regularity
3. Notarized

SITUATION: On the one hand, would be a notarized document which actually reflects the
intention of the parties at the time they signed it and on the other hand, you have parol evidence
tending to prove that there is a contemporaneous oral agreement between parties which totally
changes the meaning o the first. As a RULE, it is admissible. How do you defeat that notarial
document?

To my mind you CANNOT if we follow the hierarchy of evidence but the SC in the case
of…

MANZANO V. PEREZ SR.

[G.R. No. 112485. August 9, 2001]

Oral testimony cannot, as a rule, prevail over a written agreement of the parties. In order to
contradict the facts contained in a notarial document, as well as the presumption of regularity in
the execution thereof, there must be clear and convincing evidence that is more than merely
preponderant.

BEST EVIDENCE RULE DISTINGUISHED FROM PAROL EVIDENCE RULE:

1) Under the best evidence rule, the issue is contents of a writing (Sec. 3, Rule 130, ROC)
WHILE under the parol evidence rule, there is no issue as to contents of a writing but
the terms between the parties; how the parties are governed under the agreement,etc.
(Sec. 9, Rule 130, ROC);

2) Under the best evidence rule, secondary evidence is offered to prove the contents of a
writing, which is not allowed unless the case falls under any of the exceptions. (The
secondary evidence that you present is more likely the same as the primary and the best
evidence. For example you don’t have the original, you present a duplicate copy; that is
secondary substitutionary evidence.) (Sec. 3, Rule 130, ROC) WHILE under the parol
evidence rule, the purpose of the offer of parol evidence is to change, vary, modify,

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qualify, or contradict the terms of a complete written agreement, which is not

allowed unless the case falls under any of the exceptions. (Sec. 9, Rule 130, ROC)

3) Only the parties and their successors in interest, and not strangers may invoke the
protection of the parol evidence rule. (Sec. 9, Rule 130, ROC)

PAROLE EVIDENCE DISTINGUISHED FROM STATUTE OF FRAUDS

The Statute of Frauds requires that certain agreements be proved by writing or by some note or
memorandum thereof in order to be enforceable. On the other hand, the Parole Evidence Rule
has nothing to do with the manner of proving agreements. Its object is to prohibit alteration,
change, modification, variation or contradiction of the terms of a written agreement by extrinsic or
“parol evidence”.

OTHER EXCEPTIONS: (from US jurisprudence)

There are a number of exceptions to the parol evidence rule. Extrinsic evidence can always
be admitted for the following purposes:

1. To aid in the interpretation of existing terms.

2. To show that in light of all the circumstances surrounding the making of the contract, the
contract is actually ambiguous, thus necessitating the use of extrinsic evidence to
determine its actual meaning
3. To resolve an ambiguity in the contract.
4. To disprove the validity of the contract.
5. To show that an unambiguous term in the contract is in fact a mistaken transcription of a
prior valid agreement. Such a claim must be established by clear and convincing
evidence, and not merely by the preponderance of the evidence.
6. To correct mistakes.
7. To show wrongful conduct such as misrepresentation, fraud, duress, unconscionability or
illegal purpose on the part of one or both parties. [2]
8. To show that consideration has not actually been paid. For example, if the contract states
that A has paid B $1,000 in exchange for a painting, B can introduce evidence that A had
never actually conveyed the $1,000.
9. To identify the parties, especially if the parties have changed names. –let’s say in the year
2000 you contracted with a fellow named Rustom Padilla only later, he changed his name
to “Ryan Bang” (haha! Epic fail!) 
10. To imply or incorporate a term of the contract.
11. To make changes in the contract after the original final contract has been agreed to. That
is, oral statements can be admitted unless they are barred by a clause in the written
contract.

In order for evidence to fall within this rule, it must involve either:
1. a written or oral communication made prior to execution of the written contract; or
2. an oral communication made contemporaneous with execution of the written contract.
Evidence of a latercommunication will not be barred by this rule, as it is admissible to
show a later modification of the contract (although it might be inadmissible for some other
reason, such as the Statute of frauds).

Similarly, evidence of a collateral agreement - one that would naturally and normally be included
in a separate writing - will not be barred. For example, if A contracts with B to paint B's house for
$1,000, B can introduce extrinsic evidence to show that A also contracted to paint B's storage
shed for $100. The agreement to paint the shed would logically be in a separate document from
the agreement to paint the house.

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Though its name suggests that it is a procedural evidence rule, the consensus of
courts and commentators is that the parol evidence rule constitutes substantive contract law.

U.S. VS. CONSTANTINO TAN QUINGCO, CHUA

39 PHIL., 552,

The form of the contract is not conclusive. Parol evidence is admissible to show that a
written document through legal in form was in fact a device to cover usury. If from a
construction of the whole transaction it becomes apparent that there exists a corrupt
intent to violate the Usury Law, the Court should, and will permit no scheme, however
ingenious to becloud the crime of usury.

WAIVER OF THE PAROL EVIDENCE RULE

SANTIAGO V. CA
[G.R. No. 103959. August 21, 1997]

The parol evidence rule may be waived by failure to invoke it, as by failure to object to
the introduction of parol evidence. And, where a party who is entitled to the benefit of the
rule waives the benefit thereof by allowing such evidence to be received without
objection and without any effort to have it stricken from the minutes or disregarded by the
trial court, he cannot, after the trial has closed and the case has been decided against
him, invoke the rule in order to secure a reversal of the judgment by an appellate court.

Does the parol evidence rule apply to tribunals who are not bound by the strict rules of
evidence?

[G.R. No. 142824. December 19, 2001]

INTERPHIL LABORATORIES EMPLOYEES UNION- vs. INTERPHIL LABORATORIES,

The reliance on the parol evidence rule is misplaced. In labor cases pending before the
Commission or the Labor Arbiter, the rules of evidence prevailing in courts of law or
equity are not controlling.[15] Rules of procedure and evidence are not applied in a very
rigid and technical sense in labor cases.[16] Hence, the Labor Arbiter is not precluded from
accepting and evaluating evidence other than, and even contrary to, what is stated in, the
CBA.

Is there a prohibition for an employee who has been retrenched, or declared redundant or
having been separated due to authorized cause, and has been paid his separation pay,
what happens if the person happens to be of a retirable age? Is he allowed to claim his
retirement pay? Can there be double compensation ? Separation pay and retirement benefits?

As a General rule, unless it is strictly prohibited and provided in the collective bargaining
agreement and applicable retirement plan, employer and employee, there can be double
compensation.

What if we do not have CBA or retirement plan?

The prior and contemporaneous acts of the parties must be taken into consideration.

For example the CBA does nto prohibit or allow payment of double compensation. Let us
suppose the employer now submits affidavits that they really did not agree on it. As a rule, it is not
allowed coz whatever is in the agreement, mao na na. you cannot just present it and say that it

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was what was meant. But according to the SC, look at the prior and contemporaneous
acts between the aprties,including affidavits and oral testimony.

If one of the parties to the suit is not a party to the document in question, does the parol
evidence rule apply? NO.

GAJE V. DALISAY
G.R. No. 158762 April 4, 2007

Patricia, the widow of Dalisay, Sr., is a stranger to the said Deeds of Sale; thus, the trial
court properly admitted extrinsic evidence adduced by respondent against its efficacy,
and can be deemed competent to defeat the deed.

As explained by a leading commentator on our Rules of Court, 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 of the parties to the suit is not a party or a privy of a party to
the written instrument in question and does not base a claim on the instrument or assert
a right originating in the instrument or the relation established thereby.

QUA CHEE GAN v. LAW UNION AND ROCK INSURANCE

G.R. No. L-4611 December 17, 1955

These considerations lead us to regard the parol evidence rule, invoked by the appellant
as not applicable to the present case. It is not a question here whether or not the parties
may vary a written contract by oral evidence; but whether testimony is receivable so that
a party may be, by reason of inequitable conduct shown, estopped from enforcing
forfeitures in its favor, in order to forestall fraud or imposition on the insured.

Moreover, taking into account the well known rule that ambiguities or obscurities must be
strictly interpreted aganst the prty that caused them, 1the "memo of warranty" invoked by
appellant bars the latter from questioning the existence of the appliances called for in the
insured premises, since its initial expression, "the undernoted appliances for the
extinction of fire being kept on the premises insured hereby, . . . it is hereby
warranted . . .", admists of interpretation as an admission of the existence of such
appliances which appellant cannot now contradict, should the parol evidence rule apply.

MARKET DEVELOPERS V. IAC

G.R. No. 74978 September 8, 1989

We affirmed this rule only recently when we said in Tong v. Intermediate Appellate
Court 11 that "a contract may be entered into in whatever form except where the law
requires a document or other special form as in the contracts enumerated in Article 1388
of the Civil Code. The general rule, therefore, is that a contract may be oral or written."

The contract executed by MADE and Uy was a contract of affreightment. As defined, a

contract of affreightment is a contract with the shipowner to hire his ship or part of it, for
the carriage of goods, and generally takes the form either of a charter party or a bin of
lading. 12
Article 652 of the Code of Commerce provides that "a charter party must be drawn in
duplicate and signed by the contracting parties" and enumerates the conditions and
information to be embodied in the contract, including "the lay days and extra lay days to
be allowed and the demurrage to be paid for each of them."

But while the rule clearly shows that this kind of contract must be in writing, the
succeeding Article 653 just as clearly provides:

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If the cargo should be received without a charter party having been

signed, the contract shall be understood as executed in accordance with
what appears in the bill of lading, the sole evidence of title with regard to
the cargo for determining the rights and obligations of the ship agent, of
the captain and of the charterer.

We read this last provision as meaning that the charter party may be oral, in which case
the terms thereof, not having been reduced to writing, shall be those embodied in the bin
of lading.
Conformably, we recognized in Compania Maritima v. Insurance Company of North
America, 13 the existence of a contract of affreightment entered into by telephone, where
it was shown that this oral agreement was later confirmed by a formal and written
booking issued by the shipper's branch office and later carried out by the carrier.

We see no reason why the second agreement of the parties to deliver the petitioner's
cargo to Roxas City instead of Kalibo, Aklan, should not be recognized simply because it
was not in writing. Law and jurisprudence support the validity of such a contract. And
there is no justification either to incorporate in such contract the stipulation for demurrage
in the original written contract which provided for a different port of destination than that
later agreed upon by the parties. It was precisely this vital change in the second contract
that rendered that first contract ineffectual.

If the rate provided for in the old written contract was maintained in the new oral contract,
it was simply because, as the private respondent himself declared, the rates for Kalibo,
Aklan and Culasi, Roxas City, where the same. But the demurrage charges cannot be
deemed stipulated also in the verbal contract because the conditions in the ports of Aklan
and Roxas City were, unlike the rates, not the same. In fact, they were vastly different.

The parol evidence rule is clearly inapplicable because that involves the verbal
modification usually not allowed a written agreement admittedly still valid and subsisting.
In the case at bar, the first written agreement had not merely been modified but
actually replaced by the second verbal agreement, which is perfectly valid even if not in
writing like the first. As has been correctly held: No principle of law makes it necessary
that a new contract upon the same subject between the same persons shall be reduced
to writing because the old contract was written.

LECTURE NOTES ON STATUTE OF FRAUDS

THE REQUIREMENT OF FORM WITH RESPECT TO CONTRACTS

The general rule is that contracts are essentially consensual and are thus perfected by
mere consent. No particular form is generally required for validity as expressed under Article 1356
of the Civil Code. Thus:
Art. 1356. Contracts shall be obligatory, in whatever form they may have been
entered into, provided all the essential requisites for their validity are present. However,
when the law requires that a contract be in some form in order that it may be valid or
enforceable, or that a contract be proved in a certain way, that requirement is absolute
and indispensable. In such cases, the right of the parties stated in the following article
cannot be exercised.

However, there are some provisions of the law which require certain formalities for
particular contracts. The first is when the form is required for the validity of the contract; the
second is when it is required to make the contract effective as against third parties such as those

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mentioned in Articles 1357 and 1358; and the third is when the form is required for the
purpose of proving the existence of the contract, such as those provided in the Statute of Frauds
in Article 1403 (ROSA LIM vs. COURT OF APPEALS, ET AL, G.R. No. 102784, February 28,
1996).

REQUIRED FOR VALIDITY

For example, form is important for validity in the following instances:

1. Art. 748 — donations of personal property worth more than P5,000.00 must be in
writing;
2. Art. 749 — donations of real property must be in a public instrument;
3. Donations propter nuptias (FORTUNATA SOLIS vs. MAXIMA BARROSO, ET AL.,
G.R. No. L-27939, October 30, 1928);
4. Art. 2134 – antichresis must be in writing to be valid

REQUIRED TO AFFECT THIRD PERSONS

Art. 1357. If the law requires a document or other special form, as in the acts and
contracts enumerated in the following article, the contracting parties may compel each
other to observe that form, once the contract has been perfected. This right may be
exercised simultaneously with the action upon the contract. (1279a)

Art. 1358. The following must appear in a public document:

(1) Acts and contracts which have for their object the creation, transmission,
modification or extinguishment of real rights over immovable property; sales of
real property or of an interest therein a governed by Articles 1403, No. 2, and
1405;

(2) The cession, repudiation or renunciation of hereditary rights or of those of the

conjugal partnership of gains;

(3) The power to administer property, or any other power which has for its object
an act appearing or which should appear in a public document, or should
prejudice a third person;

(4) The cession of actions or rights proceeding from an act appearing in a public
document.

All other contracts where the amount involved exceeds five hundred pesos must
appear in writing, even a private one. But sales of goods, chattels or things in
action are governed by Articles, 1403, No. 2 and 1405. (1280a)

In Credit Transactions, we also know that a contract of mortgage must be in writing and
the recorded in the proper Registry of Property in order to be valid as against third persons
(Article 2125).

REQUIRED TO PROVE EXISTENCE OF CONTRACT OR FOR GREATER EFFICACY: THE

STATUTE OF FRAUDS

The purpose of the Statute of Frauds is to prevent fraud and perjury in the enforcement of
obligations depending for their evidence upon the unassisted memory of witnesses by requiring
certain enumerated contracts and transactions to be evidenced in writing. The provisions of the
Statute of Frauds originally appeared under the old Rules of Evidence. However when the Civil
Code was re-written in 1949 (to take effect in 1950), the provisions of the Statute of Frauds were

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taken out of the Rules of Evidence in order to be included under the title on
Unenforceable Contracts in the Civil Code. The transfer was not only a matter of style but to show
that the Statute of Frauds is also a substantive law. (CECILIO CLAUDEL, ET AL. vs. COURT OF
APPEALS, ET AL., G.R. No. 85240 July 12, 1991)

Art. 1403. The following contracts are unenforceable, unless they are ratified:

(2) Those that do not comply with the Statute of Frauds as set forth in this number.
In the following cases an agreement hereafter made shall be unenforceable by action,
unless the same, or some note or memorandum, thereof, be in writing, and subscribed by
the party charged, or by his agent; evidence, therefore, of the agreement cannot be
received without the writing, or a secondary evidence of its contents:

(a) An agreement that by its terms is not to be performed within a year from the
making thereof;

(b) A special promise to answer for the debt, default, or miscarriage of another;

(c) An agreement made in consideration of marriage, other than a mutual promise

to marry;

(d) An agreement for the sale of goods, chattels or things in action, at a price not
less than five hundred pesos, unless the buyer accept and receive part of such
goods and chattels, or the evidences, or some of them, of such things in action or
pay at the time some part of the purchase money; but when a sale is made by
auction and entry is made by the auctioneer in his sales book, at the time of the
sale, of the amount and kind of property sold, terms of sale, price, names of the
purchasers and person on whose account the sale is made, it is a sufficient
memorandum;

(e) An agreement of the leasing for a longer period than one year, or for the sale of
real property or of an interest therein;

(f) A representation as to the credit of a third person.

STATUTE OF FRAUDS AND CONTRACTS

The Statute of Frauds, embodied in Article 1403 of the Civil Code of the Philippines, does
not require that the contract itself be in writing. The plain text of Article 1403, paragraph (2) is
clear that a written note or memorandum, embodying the essentials of the contract and signed by
the party charged, or his agent, suffices to make the verbal agreement enforceable, taking it out
of the operation of the statute (CIRILO PAREDES vs. JOSE L. ESPINO, G.R. No. L-23351,
March 13, 1968) The Statute does not deprive the parties of the right to contract with respect to
the matters therein involved, but merely regulates the formalities of the contract necessary to
render it enforceable. Evidence of the agreement cannot be received without the writing or a
secondary evidence of its contents (SWEDISH MATCH, ET AL. vs. COURT OF APPEALS, ET
AL., G.R. No. 128120, October 20, 2004)

The rule presupposes the existence of a perfected contract and requires only that a note
or memorandum be executed in order to compel judicial enforcement thereof (VENANCIO
DAVID, ET AL. vs. ALEJANDRO TIONGSON, ET AL., G.R. No. 108169, August 25, 1999)

PURPOSE IS PURELY EVIDENTIARY

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The Statute, however, simply provides the method by which the contracts
enumerated therein may be proved but does not declare them invalid because they are not
reduced to writing. Consequently, the effect of non-compliance with the requirement of the Statute
is simply that no action can be enforced unless the requirement is complied with. Clearly, the form
required is for evidentiary purposes only. Hence, if the parties permit a contract to be proved,
without any objection, it is then just as binding as if the Statute has been complied with.

REQUIREMENT OF NOTE OR MEMORANDUM

However, for a note or memorandum to satisfy the Statute, it must be complete in itself
and cannot rest partly in writing and partly in parol. The note or memorandum must contain:

1. The names of the parties;

2. The terms and conditions of the contract; and
3. A description of the property sufficient to render it capable of identification.

In other words, such note or memorandum must contain the essential elements of the
contract expressed with certainty that may be ascertained from the note or memorandum itself, or
some other writing to which it refers or within which it is connected, without resorting to parol
evidence (SPOUSES TORCUATOR vs. SPOUSES BERNABE, et al., G.R. No. 134219, June 08,
2005)

(A) AN AGREEMENT THAT BY ITS TERMS IS NOT TO BE PERFORMED WITHIN A YEAR

FROM THE MAKING THEREOF;

The agreement contemplated here is one that is not to be performed within one year BY
BOTH PARTIES TO THE AGREEMENT. This is so because of the rule that the Statute of Frauds
applies only to executory and not to completed, executed, or partially executed contracts. Thus,
where one party has performed one’s obligation, oral evidence will be admitted to prove the
agreement (GENARO CORDIAL vs. DAVID MIRANDA, G.R. No. 133495, December 11, 2000).

EXAMPLES:

A orally promises to sell B his car for P500,000 after one year. After one year B goes to A
to buy the car. A refuses. B sues A for specific performance based on the contract to sell. Here, B
cannot prove his claim inasmuch as the contract is declared to be unenforceable.

(B) A SPECIAL PROMISE TO ANSWER FOR THE DEBT, DEFAULT, OR MISCARRIAGE OF

ANOTHER;

A contract of guaranty is not a formal contract and shall be valid in whatever form it may
be, provided that it complies with the statute of frauds (MACONDRAY AND COMPANY, INC. vs.
PERFECTO PIÑON, ET AL., G.R. No. L-13817, August 31, 1961)

Take note that the provision refers to GUARANTORS and not to SURETIES, who are
primarily liable on the debt. A surety agreement is not covered by the Statute and may thus be
proved by parol evidence.

(C) AN AGREEMENT MADE IN CONSIDERATION OF MARRIAGE, OTHER THAN A MUTUAL

PROMISE TO MARRY;

What agreements are made in consideration of marriage?

1. Prenuptial agreements or marriage settlements;

2. Donations propter nuptias;

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3. Mutual promise to marry, by implication of Article 1403 (c).

ROMANA LOCQUIAO VALENCIA, ET AL. VS. BENITO A. LOCQUIAO, ET AL.

G.R. No. 122134, October 3, 2003

Unlike ordinary donations, donations propter nuptias or donations by reason of marriage

are those "made before its celebration, in consideration of the same and in favor of one or both of
the future spouses." The distinction is crucial because the two classes of donations are not
governed by exactly the same rules, especially as regards the formal essential requisites.

Under the Old Civil Code, donations propter nuptias must be made in a public instrument
in which the property donated must be specifically described. However, Article 1330 of the same
Code provides that "acceptance is not necessary to the validity of such gifts". In other words, the
celebration of the marriage between the beneficiary couple, in tandem with compliance with the
prescribed form, was enough to effectuate the donation propter nuptias under the Old Civil Code.

Under the New Civil Code, the rules are different. Article 127 thereof provides that the form of
donations propter nuptias are regulated by the Statute of Frauds. Article 1403, paragraph 2,
which contains the Statute of Frauds requires that the contracts mentioned thereunder need be in
writing only to be enforceable. However, as provided in Article 129, express acceptance "is not
necessary for the validity of these donations." Thus, implied acceptance is sufficient.

The pivotal question, therefore, is which formal requirements should be applied with
respect to the donation propter nuptias at hand. Those under the Old Civil Code or the New Civil
Code?

It is settled that only laws existing at the time of the execution of a contract are applicable
thereto and not later statutes, unless the latter are specifically intended to have retroactive effect.
Consequently, it is the Old Civil Code which applies in this case since the donation propter
nuptias was executed in 1944 and the New Civil Code took effect only on August 30, 1950. As a
consequence, applying Article 1330 of the Old Civil Code in the determination of the validity of
the questioned donation, it does not matter whether or not the donees had accepted the
donation. The validity of the donation is unaffected in either case.

It is opined that the phrase “other than a mutual promise to marry” is a surplusage. What
would be the effect if the promise to marry is mutual or unilateral? If the same is written or oral?
The rule is very clear from jurisprudence that any breach of promise to marry is not actionable. Its
enforceability is therefore a non-issue.

(D) AN AGREEMENT FOR THE SALE OF GOODS, CHATTELS OR THINGS IN ACTION, AT A

PRICE NOT LESS THAN FIVE HUNDRED PESOS, UNLESS THE BUYER ACCEPT AND
RECEIVE PART OF SUCH GOODS AND CHATTELS, OR THE EVIDENCES, OR SOME OF
THEM, OF SUCH THINGS IN ACTION OR PAY AT THE TIME SOME PART OF THE
PURCHASE MONEY; BUT WHEN A SALE IS MADE BY AUCTION AND ENTRY IS MADE BY
THE AUCTIONEER IN HIS SALES BOOK, AT THE TIME OF THE SALE, OF THE AMOUNT AND
KIND OF PROPERTY SOLD, TERMS OF SALE, PRICE, NAMES OF THE PURCHASERS AND
PERSON ON WHOSE ACCOUNT THE SALE IS MADE, IT IS A SUFFICIENT MEMORANDUM;

ANGEL CLEMENO, JR., ET AL., vs. ROMEO R. LOBREGAT

G.R. No. 137845, September 9, 2004

This is so because the provision applies only to executory, and not to completed,
executed or partially executed contracts In this case, the contract of sale had been partially

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executed by the parties, with the transfer of the possession of the property to the
respondent and the partial payments made by the latter of the purchase price thereof.

APPLIES TO DATION IN PAYMENT

DAO HENG BANK, INC. vs. SPS. LILIA and REYNALDO LAIGO
G.R. No. 173856, November 20, 2008

Dacion en pago as a mode of extinguishing an existing obligation partakes of the nature

of sale whereby property is alienated to the creditor in satisfaction of a debt in money. It is an
objective novation of the obligation, hence, common consent of the parties is required in order to
extinguish the obligation. In dacion en pago, as a special mode of payment, the debtor offers
another thing to the creditor who accepts it as equivalent of payment of an outstanding debt. The
undertaking really partakes in one sense of the nature of sale, that is, the creditor is really buying
the thing or property of the debtor, payment for which is to be charged against the debtor's debt.
As such the elements of a contract of sale, namely, consent, object certain, and cause or
consideration must be present. In its modern concept, what actually takes place in dacion en
pago is an objective novation of the obligation where the thing offered as an accepted equivalent
of the performance of an obligation is considered as the object of the contract of sale, while the
debt is considered the purchase price. In any case, common consent is an essential prerequisite,
be it sale or novation, to have the effect of totally extinguishing the debt or obligation." (Emphasis,
italics and underscoring supplied; citation omitted)

Being likened to that of a contract of sale, dacion en pago is governed by the law on
sales. The partial execution of a contract of sale takes the transaction out of the provisions of the
Statute of Frauds so long as the essential requisites of consent of the contracting parties, object
and cause of the obligation concur and are clearly established to be present.

Respondents claim that petitioner's commissioning of an appraiser to appraise the value

of the mortgaged properties, his services for which they and petitioner paid, and their delivery to
petitioner of the titles to the properties constitute partial performance of their agreement to take
the case out of the provisions on the Statute of Frauds.

There is no concrete showing, however, that after the appraisal of the properties,
petitioner approved respondents' proposal to settle their obligation via dacion en pago. The
delivery to petitioner of the titles to the properties is a usual condition sine qua non to the
execution of the mortgage, both for security and registration purposes. For if the title to a property
is not delivered to the mortgagee, what will prevent the mortgagor from again encumbering it also
by mortgage or even by sale to a third party.

(E) AN AGREEMENT OF THE LEASING FOR A LONGER PERIOD THAN ONE YEAR, OR FOR
THE SALE OF REAL PROPERTY OR OF AN INTEREST THEREIN;

In the case of CELSO FERNANDEZ v. CA, G.R. No. 80231 October 18, 1988, this Court
held that "an alleged verbal assurance of renewal of a lease is inadmissible to qualify the terms of
the written lease agreement under the parole evidence rule and unenforceable under the Statute
of Frauds (INTER-ASIA SERVICES CORP. vs. COURT OF APPEALS, ET AL, G.R. No. 106427
October 21, 1996).

ENRIQUE P. SYQUIA vs. COURT OF APPEALS

G.R. No. L-61932, June 30, 1987

According to the plaintiff, there is infringement of the Statute of Frauds as well as the
Parol Evidence Rule. On the other hand, the defendant invokes the exception contained in

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Section 7, Rule 130 of the Rules of Court (Parol Evidence Rule). Defendant contends
that antecedent factors were involved which induced him to enter into the (contract of lease with
Litton Finance & Investment Corp. This brings us to the provisions of Statute of Frauds under
Article 1403, No. 2(E), which provides as follows:

Art. 1403. The following contracts are unenforceable unless they are ratified:
2. Those that do not comply with the Statute of Frauds as set forth in this number. In the
following cases an agreement hereafter made shall be unenforceable by action, unless
the same, or some note or memorandum thereof, be in writing, and subscribed by the
party charged, or by his agent; evidence, therefore, of the agreement cannot be received
without the writing, or a secondary evidence of its contents:

(E) An agreement for the leasing for a longer period than one year, or for the sale of real
property or of an interest therein.

So, under 2(e) of Article 1403 of the Civil Code as quoted above, the alleged oral
assurance or promise of the representatives of the Litton Finance & Investment Corp, that
defendant should be given priority or a renewal of Exhibit "G" cannot be enforceable against
plaintiff. Likewise, under the Parol Evidence Rule, defendant's claim that he is entitled to a
renewal of the contract of lease for the reason that the lessors have given him the option to
renew the contract cannot be maintained under the Parol Evidence Rule.

Applying the Parol Evidence Rule to the instant case, it is clear that there being a written
agreement between the parties, the same should be controlling between them. The exceptions
provided for in (A) and (B) cannot apply in the instant case in view of the fact that the contract of
lease, Exhibit "G" is clear, thus precluding any mistake or imperfection or failure to express the
true intent and agreement of the parties.

The Court cannot see any ambiguity in the contract. The tests of completeness of a
written contract is the contract itself, as provided for under Sec. 1494 of Jones on Evidence .

SPS. MANUEL & CORAZON CAMARA vs. SPS. JOSE & PAULINA MALABAO
G.R. No. 154650, July 31, 2003

As correctly found by the appellate court, the occupation and construction of the
improvements made by petitioners on the disputed property are clear acts of ratification and
enforcement. In other words, the erection of these structures on the subject lot indicates that the
lease contract was already in effect. The Statute of Frauds applies only to executory and not
completed, executed or partially executed contracts. Thus, where as in this case, one party has
performed his obligation, oral evidence will be admitted to prove the agreement. Furthermore, as
can be gleaned from Exhibit "B" of respondents, the amount of P20,000.00 received on April 21,
1989 was apparently for the rent of a stall. Indeed, the said document expressly states that it is a
receipt for rentals. Petitioners can not now say that the said receipt is proof of an alleged down
payment of the subject lot. Moreover, while there was testimony to the effect that the balance of
P60,000.00 from the alleged purchase price of P80,000.00 was allegedly paid on July 3, 1989,
the receipt therefore was never presented despite an earlier reservation to do so.

This provision INCLUDES COMPROMISE AGREEMENT ON THE SALE OF LAND

(CONSOLACION DUQUE SALONGA vs. JULITA B. FARRALES, G.R. No. L-47088 July 10,
1981).

DOES IT APPLY TO RIGHTS OF FIRST REFUSAL?

ROSENCOR DEVELOPMENT CORPORATION vs. PATERNO INQUING

G.R. No. 140479 March 8, 2001

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Both the appellate court and the trial court failed to discuss, however, the
threshold issue of whether or not a right of first refusal is indeed covered by the provisions of the
New Civil Code on the statute of frauds. The resolution of the issue on the applicability of the
statute of frauds is important as it will determine the type of evidence which may be considered
by the trial court as proof of the alleged right of first refusal.

The question now is whether a "right of first refusal" is among those enumerated in the
list of contracts covered by the Statute of Frauds. More specifically, is a right of first refusal akin
to "an agreement for the leasing of a longer period than one year, or for the sale of real property
or of an interest therein" as contemplated by Article 1403, par. 2(e) of the New Civil Code.

We have previously held that not all agreements "affecting land" must be put into writing
to attain enforceability. Thus, we have held that the setting up of boundaries, the oral partition of
real property, and an agreement creating a right of way are not covered by the provisions of the
statute of frauds. The reason simply is that these agreements are not among those enumerated
in Article 1403 of the New Civil Code.

A right of first refusal is not among those listed as unenforceable under the statute of
frauds. Furthermore, the application of Article 1403, par. 2(e) of the New Civil Code presupposes
the existence of a perfected, albeit unwritten, contract of sale. A right of first refusal, such as the
one involved in the instant case, is not by any means a perfected contract of sale of real property.
At best, it is a contractual grant, not of the sale of the real property involved, but of the right of
first refusal over the property sought to be sold.

It is thus evident that the statute of frauds does not contemplate cases involving a right of
first refusal. As such, a right of first refusal need not be written to be enforceable and may be
proven by oral evidence.

(F) A REPRESENTATION AS TO THE CREDIT OF A THIRD PERSON.

This, according to Dean Iñigo, is similar to guaranty.

LIMITATIONS

1. IT DOES NOT APPLY TO PARTIALLY PERFORMED OR EXECUTED CONTRACTS;

MACTAN-CEBU INTERNATIONAL AIRPORT AUTHORITY vs. TUDTUD

G.R. No. 174012, November 14, 2008

The Statute of Frauds applies, however, only to executory contracts. It does not apply to
contracts which have been completely or partially performed, the rationale thereof being as
follows:
x x x In executory contracts there is a wide field for fraud because unless they be in
writing there is no palpable evidence of the intention of the contracting parties. The
statute has precisely been enacted to prevent fraud. However, if a contract has been
totally or partially performed, the exclusion of parol evidence would promote fraud or bad
faith, for it would enable the defendant to keep the benefits already delivered by him from
the transaction in litigation, and, at the same time, evade the obligations, responsibilities
or liabilities assumed or contracted by him thereby.

ORDUÑA versus FUENTEBELLA

G.R. No. 176841, June 29, 2010

FACTS: The subject of this case is a residential lot located at Fairview Subdivision, Baguio City,
which was firstly registered under Amando Gabriel, Sr. Around 1996, Gabriel, Sr. sold the subject
lot to Antonita Orduña but there was no executed formal deed. The price of the lot was payable in

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installments and Gabriel, Sr. accepted the set-up. Antonita and her sons have long
been residing in the lot since 1979 and even had a house constructed therein. They also paid real
property taxes and declared the lot for tax purposes. After the death of Gabriel, Sr., his son and
one of the respondents Gabriel, Jr. continued to accept installment payments from Antonita. Then
he wrote a letter to her ordering her to fence off the lot and to construct a road on the adjacent lot.
However, despite the payments made by Antonita, Gabriel, Jr. sold the subject lot to Bernard
Banta without the knowledge of Antonita and the rest of petitioners. Banta then sold the subject
lot to Marcos Cid and Benjamin Cid. The Cids thereafter ceded the subject lot to Eduardo
Fuentebilla, Jr. Eduardo, through his lawyer, sent a letter to the residence of Gabriel, Jr. ordering
those living therein to vacate the lot or else ejectment would commence. When Antonita, et. al.
went directly to Gabriel, Jr.’s house after receiving the letter, they were informed by the wife of
Gabriel, Jr., Teresita Gabriel that she filed an affidavit-complaint against her husband and the
Cids for falsification of public documents, because according to her, her signature was forged in
the deed of sale between Gabriel, Jr. and Banta. Teresita accompanied Antonita to file a
Complaint for Annulment of Sale, Title, Reconveyance with Damages and along with this a prayer
to acquire ownership over the subject lot upon payment of their remaining balance.

ISSUE: Whether or not the Statute of Frauds is applicable to partially executed contracts

RULING: Petition GRANTED. The Statute of Frauds expressed in Article 1403, par. (2), of the
Civil Code applies only to executory contracts, i.e., those where no performance has yet been
made. Stated a bit differently, the legal consequence of non-compliance with the Statute does not
come into play where the contract in question is completed, executed, or partially consummated.

The Statute of Frauds, in context, provides that a contract for the sale of real property or of an
interest therein shall be unenforceable unless the sale or some note or memorandum thereof is in
writing and subscribed by the party or his agent. However, where the verbal contract of sale has
been partially executed through the partial payments made by one party duly received by the
vendor, as in the present case, the contract is taken out of the scope of the Statute.

Lest it be overlooked, a contract that infringes the Statute of Frauds is ratified by the acceptance
of benefits under the contract. Evidently, Gabriel, Jr., as his father earlier, had benefited from the
partial payments made by the petitioners.

Thus, neither Gabriel Jr. nor the other respondents—successive purchasers of subject lots—
could plausibly set up the Statute of Frauds to thwart petitioners’ efforts towards establishing their
lawful right over the subject lot and removing any cloud in their title. As it were, petitioners need
only to pay the outstanding balance of the purchase price and that would complete the execution
of the oral sale.

OUANO versus REPUBLIC OF THE PHILIPPINES

G.R. No. 168770, February 9, 2011

FACTS: In 1949, the National Airport Corporation (NAC), MCIAA’s predecessor agency, pursued
a program to expand the Lahug Airport in Cebu City. Through its team of negotiators, NAC met
and negotiated with the owners of the properties situated around the airport, which included lots
of the Banilad Estate. As the landowners would later claim, the government negotiating team, as
a sweetener, assured them that they could repurchase their respective lands should the Lahug
Airport expansion project do not push through or once the Lahug Airport closes or its operations
transferred to Mactan-Cebu Airport. Some of the landowners accepted the assurance and
executed deeds of sale with a right of repurchase. Others, however, including the owners of the
aforementioned lots, refused to sell because the purchase price offered was viewed as way
below market, forcing the hand of the Republic, represented by the then Civil Aeronautics
Administration (CAA), as successor agency of the NAC, to file a complaint for the expropriation of
the lots.

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On December 29, 1961, the then Court of First Instance (CFI) of Cebu rendered
judgment for the Republic declaring the expropriation of the subject lots. In view of the adverted
buy-back assurance made by the government, the owners of the lots no longer appealed the
decision of the trial court.

At the end of 1991, or soon after the transfer of the aforesaid lots to MCIAA, Lahug Airport
completely ceased operations, Mactan Airport having opened to accommodate incoming and
outgoing commercial flights. On the ground, the expropriated lots were never utilized for the
purpose they were taken as no expansion of Lahug Airport was undertaken. This development
prompted the former lot owners to formally demand from the government that they be allowed to
exercise their promised right to repurchase. The demands went unheeded. Civil suits followed.

MCIAA would foist the theory that the judgment of condemnation in Civil Case No. R-1881 was
without qualification and was unconditional. It would, in fact, draw attention to the fallo of the
expropriation court’s decision to prove that there is nothing in the decision indicating that the
government gave assurance or undertook to reconvey the covered lots in case the Lahug airport
expansion project is aborted. Elaborating on this angle, MCIAA argues that the claim of the
Ouanos and the Inocians regarding the alleged verbal assurance of the NAC negotiating team
that they can reacquire their landholdings is barred by the Statute of Frauds.

ISSUE: Whether or not the testimonial evidence of the petitioners proving the promises,
assurances and representations by the airport officials and lawyers are inadmissbale under the
Statute of Frauds.

RULING: Under the rule on the Statute of Frauds, as expressed in Article 1403 of the Civil Code,
a contract for the sale or acquisition of real property shall be unenforceable unless the same or
some note of the contract be in writing and subscribed by the party charged. Subject to defined
exceptions, evidence of the agreement cannot be received without the writing, or secondary
evidence of its contents.

MCIAA’s invocation of the Statute of Frauds is misplaced primarily because the statute applies
only to executory and not to completed, executed, or partially consummated contracts. Carbonnel
v. Poncio, et al., quoting Chief Justice Moran, explains the rationale behind this rule, thusly:
x x x "The reason is simple. In executory contracts there is a wide field for fraud because
unless they may be in writing there is no palpable evidence of the intention of the
contracting parties. The statute has been precisely been enacted to prevent fraud." x x x
However, if a contract has been totally or partially performed, the exclusion of parol
evidence would promote fraud or bad faith, for it would enable the defendant to keep the
benefits already derived by him from the transaction in litigation, and at the same time,
evade the obligations, responsibilities or liabilities assumed or contracted by him thereby.
Analyzing the situation of the cases at bar, there can be no serious objection to the proposition
that the agreement package between the government and the private lot owners was already
partially performed by the government through the acquisition of the lots for the expansion of the
Lahug airport. The parties, however, failed to accomplish the more important condition in the CFI
decision decreeing the expropriation of the lots litigated upon: the expansion of the Lahug Airport.
The project––the public purpose behind the forced property taking––was, in fact, never pursued
and, as a consequence, the lots expropriated were abandoned. Be that as it may, the two groups
of landowners can, in an action to compel MCIAA to make good its oral undertaking to allow
repurchase, adduce parol evidence to prove the transaction.

At any rate, the objection on the admissibility of evidence on the basis of the Statute of Frauds
may be waived if not timely raised. Records tend to support the conclusion that MCIAA did not,
as the Ouanos and the Inocians posit, object to the introduction of parol evidence to prove its
commitment to allow the former landowners to repurchase their respective properties upon the
occurrence of certain events.

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WHAT CONSTITUTES EXECUTION OR PARTIAL PERFORMANCE

MARTA C. ORTEGA vs. DANIEL LEONARDO

G.R. No. L-11311, May 28, 1958

If the above means that partial performance of a sale contract occurs only when part of
the purchase price is paid, it surely constitutes a defective statement of the law. American
Jurisprudence in its title "Statute of Frauds" lists other acts of partial performance, such as
possession, the making of improvements, rendition of services, payment of taxes, relinquishment
of rights, etc.

Thus, it is stated that "The continuance in possession may, in a proper case, be

sufficiently referable to the parol contract of sale to constitute a part performance thereof. There
may be additional acts or peculiar circumstances which sufficiently refer the possession to the
contract. . . . Continued possession under an oral contract of sale, by one already in possession
as a tenant, has been held a sufficient part performance, where accompanied by other acts which
characterize the continued possession and refer it to the contract of purchase. Especially is this
true where the circumstances of the case include the making of substantial, permanent, and
valuable improvements." (49 American Jurisprudence — 44)

It is also stated that "The making of valuable permanent improvements on the land by the
purchaser, in pursuance of the agreement and with the knowledge of the vendor, has been said
to be the strongest and the most unequivocal act of part performance by which a verbal contract
to sell land is taken out of the statute of frauds, and is ordinarily an important element in such part
performance. . . .

Possession by the purchaser under a parol contract for the purchase of real property,
together with his making valuable and permanent improvements on the property which are
referable exclusively to the contract, in reliance on the contract, in the honest belief that he has a
right to make them, and with the knowledge and consent or acquiescence of the vendor, is
deemed a part performance of the contract. The entry into possession and the making of the
improvements are held on amount to such an alteration in the purchaser's position as will warrant
the court's entering a degree of specific performance." (49 American Jurisprudence p.755, 756.)

Again, it is stated that "A tender or offer of payment, declined by the vendor, has been
said to be equivalent to actual payment, for the purposes of determining whether or not there has
been a part performance of the contract. This is apparently true where the tender is by a
purchaser who has made improvements. But the doctrine now generally accepted, that not even
the payment of the purchase price, without something more, . . . is a sufficient part performance.
(49 American Jurisprudence p. 772.)

And the relinquishment of rights or the compromise thereof has likewise been held to
constitute part performance. (See same title secs. 473, 474, 475.)

In the light of the above four paragraphs, it would appear that the complaint in this case
described several circumstance indicating partial performance: relinquishment of rights,
continued possession, building of improvements, tender of payment plus the surveying of the lot
at plaintiff's expense and the payment of rentals.

We shall not take, time to discuss whether one or the other or any two or three of them
constituted sufficient performance to take the matter away from the operation of the Statute of
Frauds. Enough to hold that the combination of all of them amounted to partial performance; and
we do so line with the accepted basis of the doctrine, that it would be a fraud upon the plaintiff if
the defendant were permitted to oppose performance of his part after he has allowed or induced
the former to perform in reliance upon the agreement. (See 49 American Jurisprudence p. 725.)

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We also hold that the oral partition between Romeo and Alexander is not covered by the
Statute of Frauds. It is enforceable for two reasons. Firstly, Alexander accepted the six thousand
(P6,000.00) pesos given by Romeo as downpayment for the purchase of his share in the Paco
property. Secondly, Romeo and his witnesses, Ceferino Miat and Pedro Miranda, who testified
regarding the sale of Alexander’s share to Romeo, were intensely questioned by petitioners’
counsel.

CONCEPCION R. AINZA vs. SPOUSES PADUA

G.R. No. 165420, June 30, 2005

FACTS: Concepcion Ainza (Concepcion) alleged that respondent-spouses Eugenia (Eugenia)

and Antonio Padua (Antonio) owned a 216.40 sq. m. lot with an unfinished residential house
located at No. 85-A Durian corner Pajo Sts., Barangay Quirino 2-C, Project 2, Quezon City,
covered by Transfer Certificate of Title No. 271935. Sometime in April 1987, she bought one-half
of an undivided portion of the property from her daughter, Eugenia and the latter’s husband,
Antonio, for One Hundred Thousand Pesos (P100,000.00).

The subject property was conjugal and sold by Eugenia (without her husband’s consent) in April
1987. No Deed of Absolute Sale was executed to evidence the transaction, but cash payment
was received by the respondents, and ownership was transferred to Concepcion through physical
delivery to her attorney-in-fact and daughter, Natividad Tuliao (Natividad). Concepcion authorized
Natividad and the latter’s husband, Ceferino Tuliao (Ceferino) to occupy the premises, and make
improvements on the unfinished building.

Thereafter, Concepcion alleged that without her consent, respondents caused the subdivision of
the property into three portions and registered it in their names under TCT Nos. N-155122, N-
155123 and N-155124 in violation of the restrictions annotated at the back of the title.

Antonio averred that he bought the property in 1980 and introduced improvements thereon.
Between 1989 and 1990, he and his wife, Eugenia, allowed Natividad and Ceferino to occupy the
premises temporarily. In 1994, they caused the subdivision of the property and three (3) separate
titles were issued. Thereafter, Antonio requested Natividad to vacate the premises but the latter
refused and claimed that Concepcion owned the property. Antonio thus filed an ejectment suit on
April 1, 1999. Antonio claimed that his wife, Eugenia, admitted that Concepcion offered to buy
one third (1/3) of the property who gave her small amounts over several years which totaled
P100,000.00 by 1987 and for which she signed a receipt, which reads: “Received the amount of
ONE HUNDRED THOUSAND PESOS (P100,000.00) as payment for the lot on 85-A Durian St.,
Project 2, Quezon City, from Mrs. Concepcion R. Ainza, on April, 1987.”

ISSUE: STATUS OF THE SALE BY EUGENIA TO NATIVIDAD

RULING: The verbal contract of sale between Eugenia and Concepcion did not violate the
provisions of the Statute of Frauds that a contract for the sale of real property shall be
unenforceable unless the contract or some note or memorandum of the sale is in writing and
subscribed by the party charged or his agent. When a verbal contract has been completed,
executed or partially consummated, as in this case, its enforceability will not be barred by the
Statute of Frauds, which applies only to an executory agreement. Thus, where one party has
performed his obligation, oral evidence will be admitted to prove the agreement.

In the instant case, the oral contract of sale between Eugenia and Concepcion was evidenced by
a receipt signed by Eugenia. Antonio also stated that his wife admitted to him that she sold the
property to Concepcion.

It is undisputed that the subject property was conjugal and sold by Eugenia in April 1987 or prior
to the effectivity of the Family Code on August 3, 1988, Article 254 of which repealed Title V,
Book I of the Civil Code provisions on the property relations between husband and wife.

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However, Article 256 thereof limited its retroactive effect only to cases where it would
not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws.
In the case at bar, vested rights of Concepcion will be impaired or prejudiced by the application of
the Family Code; hence, the provisions of the Civil Code should be applied.

In Felipe v. Heirs of Aldon, et al., the legal effect of a sale of conjugal properties by the wife
without the consent of the husband was clarified, to wit:

The legal ground which deserves attention is the legal effect of a sale of lands belonging
to the conjugal partnership made by the wife without the consent of the husband. It is
useful at this point to re-state some elementary rules: The husband is the administrator of
the conjugal partnership. (Art. 165, Civil Code) Subject to certain exceptions, the
husband cannot alienate or encumber any real property of the conjugal partnership
without the wife’s consent. (Art. 166, Idem.) And the wife cannot bind the conjugal
partnership without the husband’s consent, except in cases provided by law. (Art. 172,
Idem.).

In the instant case, Gimena, the wife, sold lands belonging to the conjugal partnership
without the consent of the husband and the sale is not covered by the phrase "except in
cases provided by law." The Court of Appeals described the sale as "invalid" – a term
which is imprecise when used in relation to contracts because the Civil Code uses
specific names in designating defective contracts, namely: rescissible (Arts. 1380 et
seq.), voidable (Arts. 1390 et seq.), unenforceable (Arts. 1403, et seq.), and void or
inexistent (Arts. 1409 et seq.).

The sale made by Gimena is certainly a defective contract but of what category? The
answer: it is a voidable contract.

According to Art. 1390 of the Civil Code, among the voidable contracts are "[T]hose
where one of the parties is incapable of giving consent to the contract." (Par. 1.) In the
instant case Gimena had no capacity to give consent to the contract of sale. The capacity
to give consent belonged not even to the husband alone but to both spouses.

The view that the contract made by Gimena is a voidable contract is supported by the
legal provision that contracts entered by the husband without the consent of the wife
when such consent is required, are annullable at her instance during the marriage and
within ten years from the transaction questioned. (Art. 173, Civil Code).

Gimena’s contract is not rescissible for in such a contract all the essential elements are
untainted but Gimena’s consent was tainted. Neither can the contract be classified as
unenforceable because it does not fit any of those described in Art. 1403 of the Civil
Code. And finally, the contract cannot be void or inexistent because it is not one of those
mentioned in Art. 1409 of the Civil Code. By process of elimination, it must perforce be a
voidable contract.

2. IT DOES NOT APPLY TO ORAL PARTITIONS OF PROPERTY;

SPOUSES VIRGILIO, ET AL. vs. ROMEO V. MIAT

G.R. No. 134297, February 11, 2003

In the recent case of Pada-Kilario vs. Court of Appeals, we held:

"[N]o law requires partition among heirs to be in writing and be registered in order to be
valid. The requirement in Sec. 1, Rule 74 of the Revised Rules of Court that a partition be put in a
public document and registered, has for its purpose the protection of creditors and the heirs
themselves against tardy claims. The object of registration is to serve as constructive notice to
others. It follows then that the intrinsic validity of partition not executed with the prescribed

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formalities is not undermined when no creditors are involved. Without creditors to take
into consideration, it is competent for the heirs of an estate to enter into an agreement for
distribution thereof in a manner and upon a plan different from those provided by the rules from
which, in the first place, nothing can be inferred that a writing or other formality is essential for the
partition to be valid. The partition of inherited property need not be embodied in a public
document so as to be effective as regards the heirs that participated therein. The requirement of
Article 1358 of the Civil Code that acts which have for their object the creation, transmission,
modification or extinguishment of real rights over immovable property, must appear in a public
instrument, is only for convenience, non-compliance with which does not affect the validity or
enforceability of the acts of the parties as among themselves. And neither does the Statute of
Frauds under Article 1403 of the New Civil Code apply because partition among heirs is not
legally deemed a conveyance of real property, considering that it involves not a transfer of
property from one to the other but rather, a confirmation or ratification of title or right of property
that an heir is renouncing in favor of another heir who accepts and receives the inheritance. x x
x."

MAESTRADO vs. ROA, JR.

G.R. No. 133324 March 9, 2000

Partition is the separation, division and assignment of a thing held in common among
those to whom it may belong. If may be effected extra-judicially by the heirs themselves through
a public instrument filed before the register of deeds.

However, as between the parties, a public instrument is neither constitutive nor an

inherent element of a contract of partition. Since registration serves as constructive notice to third
persons, an oral partition by the heirs is valid if no creditors are affected. Moreover, even the
requirement of a written memorandum under the statute of frauds does not apply to partitions
effected by the heirs where no creditors are involved considering that such transaction is not a
conveyance of property resulting in change of ownership but merely a designation and
segregation of that part which belongs to each heir.

3. IT DOES NOT APPLY TO WILLS AND SIMILAR DOCUMENTS

TESTATE ESTATE OF PAULA TORAY. EUSTAQUIA TENEFRANCIA vs. ROSA ABAJA

G.R. No. L-2415, July 31, 1950

It is vigorously contended on behalf of the appellant, that the alleged defect of the
attestation clause1 has been cured by oral evidence, which was admitted without opposition on
the part of the appellee. This contention cannot be sustained. The doctrine of this court with
reference to statute of frauds is not applicable to wills. The statute of frauds relates to contracts
and agreements. The subject of wills and testaments and the formalities surrounding their
execution are governed by separate and specific provisions of Act No. 190.

4. IT APPLIES ONLY TO ACTIONS FOR VIOLATIONS OF CONTRACT OR ACTIONS

FOR SPECIFIC PERFORMANCE

5. IT DOES NOT APPLY WHEN A PARTY OFFERS TO PROVE BY PAROL EVIDENCE

THAT THE WRITING DOES NOT EXPRESS THE TRUE INTENT OF THE PARTIES;

6. IT CANNOT BE INVOKED BY A PERSON WHO IS NOT PRIVY TO THE CONTRACT

HOW TO RAISE STATUTE OF FRAUDS AS A DEFENSE

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1. In a motion to dismiss (Section 1, Rule 16 of the 1997);

SECTION 1. Grounds. – Within the time for but before filing the answer to the
complaint or pleading asserting a claim, a motion to dismiss may be made on any of the
following grounds:
(i) That the claim on which the action is founded is unenforceable under the
provisions of the statute of frauds; and
SEC. 5. Effect of dismissal. – Subject to the right of appeal, an order granting a
motion to dismiss based on paragraphs (f), (h), and (i) of section 1 hereof shall bar the
refiling of the same action or claim.

STRONGWORLD CONSTRUCTION CORPORATION, ET AL. vs. PERELLO, ET AL.

G.R. No. 148026, July 27, 2006

Briefly stated, dismissals that are based on the following grounds, to wit: (1) that the
cause of action is barred by a prior judgment or by the statute of limitations; (2) that the claim or
demand set forth in the plaintiff's pleading has been paid, waived, abandoned or otherwise
extinguished; and (3) that the claim on which the action is founded is unenforceable under the
provisions of the statute of frauds, bar the refiling of the same action or claim. Logically, the
nature of the dismissal founded on any of the preceding grounds is "with prejudice" because the
dismissal prevents the refiling of the same action or claim. Ergo, dismissals based on the rest of
the grounds enumerated are without prejudice because they do not preclude the refiling of the
same action.

2. In the Answer as an affirmative defense

Sec. 5. Defenses. Defenses may either be negative or affirmative.

(a) A negative defense is the specific denial of the material fact or facts alleged in
the pleading of the claimant essential to his cause or causes of action.
(b) An affirmative defense is an allegation of a new matter which, while
hypothetically admitting the material allegations in the pleading of the claimant, would
nevertheless prevent or bar recovery by him. The affirmative defenses include fraud,
statute of limitations, release, payment, illegality, statute of frauds, estoppel, former
recovery, discharge in bankruptcy, and any other matter by way of confession and
avoidance.

Sec. 6. Pleading grounds as affirmative defenses.

If no motion to dismiss has been filed, any of the grounds for dismissal provided
for in this Rule may be pleaded as an affirmative defense in the answer and, in the
discretion of the court, a preliminary hearing may be had thereon as if a motion to
dismiss had been filed.
The dismissal of the complaint under this section shall be without prejudice to the
prosecution in the same or separate action of a counterclaim pleaded in the answer.

3. By demurrer to the evidence (DOMINADOR GOMEZ vs. REMEDIOS SALCEDO, G.R.

No. L-7821 December 31, 1913);

RULE 33, Section 1. Demurrer to evidence. After the plaintiff has completed the
presentation of his evidence, the defendant may move for dismissal on the ground that upon the
facts and the law the plaintiff has shown no right to relief. If his motion is denied, he shall have
the right to present evidence. If the motion is granted but on appeal the order of dismissal is
reversed he shall be deemed to have waived the right to present evidence.

4. By objection to the reception of such oral evidence ((DOMINADOR GOMEZ vs.

REMEDIOS SALCEDO, G.R. No. L-7821 December 31, 1913).

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DOMINADOR GOMEZ vs. REMEDIOS SALCEDO

G.R. No. L-7821 December 31, 1913

Where, however, the pleading shows on its face that the contract relied upon is oral and
that it comes within the statute of frauds, the objection of the party sought to be charged may as
well be taken by demurrer as by objection to the reception of evidence tending to prove its
existence. When such a party sought to thus offer the defense of the statute, it would prolong the
action and subject both litigants to needless expense and waste of time to allow the case to
proceed to trial. It would be a mere empty formality which would produce no better or different
results than a decision on the demurrer, as in neither case could the contract be enforced.

That the defense may be raised by demurrer when the pleading shows on its face that
the contract relied upon is oral, is the approved doctrine as is evidenced by the following
authorities: Thompson vs. New South Coal Co. (135 Ala., 630; 62 L. R. A., 551; 93 A. S. R., 49);
Ahrend vs. Odiorne (118 Mass., 261; 19 Am., Rep., 449); Seamans vs. Barentsen (180 N. Y.,
333; 105 A. S. R., 759); International Harvester Co. of America vs. Campbell (43 Tex. Civ. App.,
421). An exception to this rule is where part performance is relied upon to take contract out of the
statute. (Dicken vs. McKinlay, 163 Ill., 318; 54 A. S. R., 471.)

RATIFIED BY FAILURE TO OBJECT OR BY THE ACT OF CROSS-EXAMINATION

Art. 1405. Contracts infringing the Statute of Frauds, referred to in No. 2 of Article 1403,
are ratified by the failure to object to the presentation of oral evidence to prove the same, or by
the acceptance of benefit under them.

SPOUSES TORCUATOR vs. SPOUSES

G.R. No. 134219, June 08, 2005

The term "Statute of Frauds" is descriptive of statutes which require certain classes of
contracts, such as agreements for the sale of real property, to be in writing. It does not deprive
the parties the right to contract with respect to the matters therein involved, but merely regulates
the formalities of the contract necessary to render it enforceable.

The purpose of the statute is to prevent fraud and perjury in the enforcement of
obligations depending for their evidence on the unassisted memory of witnesses by requiring
certain enumerated contracts and transactions to be evidenced by a writing signed by the party to
be charged.22 The written note or memorandum, as contemplated by Article 1403 of the Civil
Code, should embody the essentials of the contract.

In the instant case, petitioners present as written evidence of the agreement the special
power of attorney executed in their favor by the Salvadors and the summary of agreement
allegedly initialed by respondent Remigio Bernabe. These documents do not suffice as notes or
memoranda as contemplated by Article 1403 of the Civil Code.

The special power of attorney does not contain the essential elements of the purported
contract and, more tellingly, does not even refer to any agreement for the sale of the property. In
any case, it was rendered virtually inoperable as a consequence of the Salvadors’ adamant
refusal to part with their title to the property.

The summary of agreement, on the other hand, is fatally deficient in the fundamentals
and ambiguous in the rest of its terms. For one, it does not mention when the alleged
consideration should be paid and transfer of ownership effected. The document does not even
refer to a particular property as the object thereof. For another, it is unclear whether the supposed
purchase price is P600.00, P590.00 or P570.00/square meter. The other conditions, such as

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payment of documentary stamp taxes, capital gains tax and other registration
expenses, are likewise uncertain.

Conformably with Article 1405 of the Civil Code, however, respondents’ acceptance of
the agreement foisted by petitioners on them is deemed to have arisen from their failure to object
to the testimony of petitioner Mario Torcuator on the matter and their cross-examination of said
petitioner thereon.

LIMKETKAI SONS MILLING, INC. vs. COURT OF APPEALS, ET AL.

G.R. No. 118509 December 1, 1995

In any event, petitioner cites Abrenica vs. Gonda (34 Phil. 739 [1916]) wherein it was
held that contracts infringing the Statute of Frauds are ratified when the defense fails to object, or
asks questions on cross-examination. The succinct words of Justice Araullo still ring in judicial
cadence:
As no timely objection or protest was made to the admission of the testimony of
the plaintiff with respect to the contract; and as the motion to strike out said evidence
came too late; and, furthermore, as the defendants themselves, by the cross-questions
put by their counsel to the witnesses in respect to said contract, tacitly waived their right
to have it stricken out, that evidence, therefore, cannot be considered either inadmissible
or illegal, and court, far from having erred in taking it into consideration and basing his
judgment thereon, notwithstanding the fact that it was ordered to be stricken out during
the trial, merely corrected the error he committed in ordering it to be so stricken out and
complied with the rules of procedure hereinbefore cited.

In the instant case, counsel for respondents cross-examined petitioner's witnesses at

length on the contract itself, the purchase price, the tender of cash payment, the authority of
Aromin and Revilla, and other details of the litigated contract. Under the Abrenica rule (reiterated
in a number of cases, among them Talosig vs. Vda. de Nieba 43 SCRA 472 [1972]), even
assuming that parol evidence was initially inadmissible, the same became competent and
admissible because of the cross-examination, which elicited evidence proving the evidence of a
perfected contract. The cross-examination on the contract is deemed a waiver of the defense of
the Statute of Frauds (Vitug, Compendium of Civil Law and Jurisprudence, 1993 Revised Edition,
supra, p 563).

The reason for the rule is that as pointed out in Abrenica "if the answers of those
witnesses were stricken out, the cross-examination could have no object whatsoever, and if the
questions were put to the witnesses and answered by them, they could only be taken into
account by connecting them with the answers given by those witnesses on direct examination"
(pp. 747-748).

Moreover, under Article 1403 of the Civil Code, an exception to the unenforceability of
contracts pursuant to the Statute of Frauds is the existence of a written note or memorandum
evidencing the contract. The memorandum may be found in several writings, not necessarily in
one document. The memorandum or memoranda is/are written evidence that such a contract
was entered into.

STATUTE OF FRAUDS AND EVIDENCE IN ILLEGAL RECRUITMENT

PEOPLE OF THE PHIL. vs. RESTITUTO C. PABALAN

G.R. No. 115350, September 30, 1996

The Statute of Frauds and the rules of evidence do not require the presentation of
receipts in order to prove the existence of a recruitment agreement and the procurement of fees

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in illegal recruitment cases. The amounts may consequently be proved by the

testimony of witnesses.

The finding of illegal recruitment in large scale is justified whenever the following
elements are present: (1) that the offender engages in the recruitment and placement of workers
as defined in Article 13(b) of the Labor Code or in any prohibited activities under Article 34 of the
same code; (2) that the offender does not have a license or authority to recruit and deploy
workers, either locally or overseas; and (3) that the offender commits the same against three (3)
or more persons, individually or as a group. 19 Article 13(b) characterizes recruitment and
placement as any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or
procuring workers, and includes referrals, contract services, promising or advertising for
employment, locally or abroad, whether for profit or not.

It will readily be noted, as earlier explained, that the exhibition of receipts is not
necessary for the successful prosecution of the offense of illegal recruitment in large scale. Since
all of the above elements were satisfactorily proven by the prosecution before the court a quo
through the testimonies of its witnesses and by competent documents, then the non-presentation
of receipts should not in any way hinder the conviction of appellant.

PAROLE EVIDENCE RULE DISTINGUISHED FROM STATUTE OF FRAUDS

Both the Parol Evidence Rule and the Statute of Frauds are evidentiary rules that limit a
party’s ability to present parol or oral evidence in varied contractual situations.

They are different in the following respects:

STATUTE OF FRAUDS PAROL EVIDENCE RULE

The Statute of Frauds requires that certain
agreements be proved by writing or by some
note or memorandum thereof in order to be
enforceable.
The Parole Evidence Rule has nothing to do
with the manner of proving agreements. Its
object is to prohibit alteration, change,
modification, variation or contradiction of the
terms of a written agreement by “parol
evidence.

Does not apply to wills. Applies to wills.

Cannot be invoked by a stranger to the Cannot be invoked by either party to the

contract, litigation against the other, where at least one
of the parties to the suit is not a party or a privy
of a party to the written instrument in question.

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

INTERPRETATION ACCORDING TO LEGAL MEANING

By way of review, it bears to recall the basic principles “LEX LOCI CELEBRATIONIS” in
the law on marriage and “LEX LOCI CONTRACTUS”, the Latin term for "law of the place where
the contract is made".

When the contract is entered into in one place, to be executed in another, there are two
loci contractus; the locus celebrate contractus, and the locus solutionis; the former governs in
everything which relates to the mode of construing the contract, the meaning to be attached to
the expressions, and the nature and validity of the engagement; but the latter governs the
performance of the agreement.

An example is a “non-compete clause”. It is a term used in contract law under which one
party (usually an employee) agrees to not pursue a similar profession or trade in competition
against another party (usually the employer). This is used to protect so-called “trade secrets” from
leaking to rival companies.

As far back as 1415, English common law had already been "old and settled" that
restraints on trade were unenforceable. That ban remained unchanged until 1621, when a
restriction that was limited to a specific geographic location was found to be an enforceable
exception to the previously-absolute rule.

In the United States, a “non-compete clause” is varied in its applicability per state. In
Virginia, “non-compete clauses” are deemed valid if proven to be necessary to protect legitimate
business interests. Conversely, in California, “non-compete clauses” are automatically void as a
matter of law, being against public policy, subject tot very limited exceptions.

In the Philippines, the rule is still couched in general terms to wit:

Art. 1306. The contracting parties may establish such stipulations, clauses, terms
and conditions as they may deem convenient, provided they are not contrary to law,
morals, good customs, public order, or public policy.

Section 11. Instrument construed so as to give effect to all provisions. - In the

construction of an instrument, where there are several provisions or particulars, such a
construction is, if possible, to be adopted as will give effect to all. (9)

HARMONY IS THE ULTIMATE GOAL

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According to Section 11, one has to harmonize provisions in a contract with each
other.

ILLUSTRATIVE CASES

MULTINATIONAL VILLAGE HOMEOWNERS ASSOCIATION, INC., ET AL.

vs. ARA SECURITY AND SURVEILLANCE AGENCY, INC.
G.R. No. 154852, October 21, 2004

Two Provisions:

5. MODE OF PAYMENT:
‘Billing shall be every fifteen (15) days. After three (3) months of satisfactory
performance, the parties may negotiate for the extension of this contract and other
matters that might be advantageous to both parties."

12. TERM OF CONTRACT:

"This Contract shall take effect on May 25, 1994 and shall be for a period of One (1) Year
from said date. Thereafter, it shall be deemed renewed for the same period unless either
party notifies the other in writing not later than one (1) month before the expiry of its
intent not to renew.

One party, after one year, rescinded the contract.

Petitioners objected to the rescission citing paragraphs 5 and 12 of their agreement.

Petitioners contend that the court a quo did not comply with Section 11 of Rule 130 of the Rules
of Court, because it failed to give effect to paragraph 5. They further invoke Section 12 of the
same Rule, arguing that relative to the provision of the Contract on the duration of its effectivity,
which is one year, paragraph 5 is a particular provision. They conclude that since the two
provisions are inconsistent, paragraph 5 -- being the particular provision -- should prevail.
Petitioners contend that according to paragraph 5, there is no right to rescind but an obligation to
renegotiate.

HELD:

Section 11 of Rule 130 of the Rules of Court states that "[i]n the construction of an
instrument where there are several provisions or particulars, such a construction is, if possible, to
be adopted as will give effect to all." Contrary to petitioners’ contention, paragraph 5 is not
inconsistent with paragraph 12. More important, the former does not in any way deal with the
termination of the Contract. Neither does it provide for a right to rescind.

At this point, we stress that the right to rescind is implied in reciprocal obligations, as
provided for in Article 1191 of the Civil Code, which states:

"ART. 1191. The power to rescind obligations is implied in reciprocal ones, in case one of
the obligors should not comply with what is incumbent upon him. XXX”

Therefore, absent any provision providing for a right to rescind, the parties may
nevertheless rescind the contract should the other obligor fail to comply with its obligations.

ABELARDO B. LICAROS vs. ANTONIO P. GATMAITAN

G.R. No. 142838, August 9, 2001

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Petitioner next argues that the consent or conformity of Anglo-Asean Bank is

not necessary to the validity of the Memorandum of Agreement as the evidence on record
allegedly shows that it was never the intention of the parties thereto to treat the same as one of
conventional subrogation. He claims that the preambulatory clause requiring the express
conformity of third parties, which admittedly was Anglo-Asean Bank, is a mere surplusage which
is not necessary to the validity of the agreement.

As previously discussed, the intention of the parties to treat the Memorandum of

Agreement as embodying a conventional subrogation is shown not only by the "whereas clause"
but also by the signature space captioned "WITH OUR CONFORME" reserved for the signature
of a representative of Anglo-Asean Bank. These provisions in the aforementioned Memorandum
of Agreement may not simply be disregarded or dismissed as superfluous.

It is a basic rule in the interpretation of contracts that "(t)he various stipulations of a

contract shall be interpreted together, attributing to the doubtful ones that sense which may result
from all of them taken jointly." Moreover, under our Rules of Court, it is mandated that "(I)n the
construction of an instrument where there are several provisions or particulars, such a
construction is, if possible, to be adopted as will give effect to all."Further, jurisprudence has laid
down the rule that contracts should be so construed as to harmonize and give effect to the
different provisions thereof.

In the case at bench, the Memorandum of Agreement embodies certain provisions that
are consistent with either a conventional subrogation or assignment of credit. It has not been
shown that any clause or provision in the Memorandum of Agreement is inconsistent or
incompatible with a conventional subrogation. On the other hand, the two cited provisions
requiring consent of the debtor to the memorandum is inconsistent with a contract of assignment
of credit. Thus, if we were to interpret the same as one of assignment of credit, then the
aforementioned stipulations regarding the consent of Anglo-Asean Bank would be rendered
inutile and useless considering that, as previously discussed, the consent of the debtor is not
necessary in an assignment of credit.

HOME DEVELOPMENT MUTUAL FUND, ET AL. vs. COURT OF APPEALS, ET AL.

G.R. No. 118972, April 3, 1998

Our pivot of inquiry is the correct construction or interpretation of subject Consultancy

Agreement, particularly its provision:

That this agreement takes effect on January 1, 1985 to December 31, 1985;
Provided, however, that either party who desires to terminate the contract may serve the
other party a written notice at least thirty (30) days in advance.

The first clause of the aforecited stipulation, which is the bone of petitioners' stance,
basically deals with the term of the contract; while the proviso, which is the core of private
respondents' action, prescribes the manner the service contract in question could be terminated.

It is petitioners' submission that the first clause referred to is independent, distinct and
separate from the said proviso, such that upon the expiration of the period stated in the first
clause, the Consultancy Agreement ceased to have any binding effect between the contracting
parties even though they (petitioners) did not give any written notice of termination at least thirty
(30) days in advance.

We cannot fathom how contracting parties, who are sui juris, and knowledgeable of the
purposes for which they solemnly put their Agreement into writing, could be so careless as to
include inconsistent conditions in such a short and simple provision in their contract sued upon.

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Time-honored is the rule that "In the construction of an instrument where

there are several provisions or particulars, such a construction is, if possible, to be adopted as
will give effect to all." Article 1374 of the New Civil Code, on the other hand, requires that "The
various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that
sense which may result from all of them taken jointly." Conformably, to ascertain the true meaning
or import of the controverted provision of subject Consultancy Agreement, its entirety must be
considered; not merely the first clause. Consequently, petitioners' interpretation solely based on
the first clause, and which completely ignored the second clause under scrutiny, cannot be
upheld.

BPI-FAMILY SAVINGS BANK, INC. vs. SPS. ZENAIDA DOMINGO

G.R. No. 158676 November 27, 2006
Provision:
Assignment and Sublease – The lessee has the right to sublease the premises
or any portion thereof to a third party. The lessee may not, however, assign or transfer its
right or interest under this lease without the written consent of the lessor.

On surface, the foregoing stipulation seemingly insulates Cruz from any liability in this
case. However, basic is the rule that in the construction of an instrument where there are several
provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all
(Rule 130, Section 11). The trial court was quick to point out, and rightly so, that the first
sentence of the aforequoted covenant speaks of what the lessee can do, while the second
sentence refers to what it cannot do without the consent of the lessor. This is evident from the
phrase "may not however" found in the second sentence, which means that the act of sub-
leasing in the first sentence may be done by the lessee without the consent of the lessor but the
act of assignment or transfer of rights in the second sentence cannot be done by the lessee
without the consent of the lessor. Clearly, the parties intended a distinction between a sublease
and an assignment of rights.

Under the aforequoted contractual stipulation, BPI-FSB, as lessee, is possessed of the

authority to sublease the subject premises. No mention is made of obtaining any written consent
of the lessor (Cruz) as a condition sine qua non for the validity of a sublease agreement. What
necessitates the prior written consent of lessor Cruz is the assignment or transfer by BPI-FSB as
lessee of its right or interest under the lease agreement.

Section 12. Interpretation according to intention; general and particular provisions.

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

INTENTION IS PARAMOUNT

Intention is always the first rule of interpretation. In Sales, we distinguished a contract of

sale from a contract of barter. One of the rules we learned is:

Art. 1468. If the consideration of the contract consists partly in money, and partly
in another thing, the transaction shall be characterized by the manifest intention of the
parties. If such intention does not clearly appear, it shall be considered a barter if the
value of the thing given as a part of the consideration exceeds the amount of the money
or its equivalent; otherwise, it is a sale.

CASE:

ROLANDO R. LIGON vs. COURT OF APPEALS

G.R. No. 84644, August 29,1989

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At the outset, it should be stated that, as a rule, in the construction and interpretation of a
document the intention of the parties must be sought (Rule 130, Section 10, Rules of Court). This
is the basic rule in the interpretation of contracts because all other rules are but ancillary to the
ascertainment of the meaning intended by the parties. And once this intention has been
ascertained it becomes an integral part of the contract as though it has been originally expressed
therein in unequivocal terms. (Shoreline Oil Corp. vs. Guy, App. 189, So., 348, cited in 17A
C.J.S., p. 47)

GENERAL versus SPECIAL PROVISIONS

In the second part of Section 12, we are actually told to apply the principle "GENERALIA
SPECIALIBUS NON DEROGANT", which means that where an act deals specifically with a
subject a general provision in that act does not override the specific provision. If a matter falls
under a specific provision and a general provision, it shall be governed by the specific provision.

EMPIRE INSURANCE COMP. vs. REMEDIOS S. RUFINO

G.R. No. L-38268 May 31, 1979

Section 10, Rule 130 of the Rules of Court provides as follows:

Interpretation according to intention; general and particular provisions — In the

construction of an instrument, the intention of the parties is to be pursued; and when a
general and a particular provision are inconsistent, the latter is paramount to the former.
So a particular intent will control a general one that is inconsistent with it.

Likewise, Article 1372 of the Civil Code stipulates that however general the terms of a
contract may be, they shall not be understood to comprehend things that are distinct and cases
that are different from those upon which the parties intended to agree. " Similarly, Article 1374 of
the same Code provides that "the various stipulations of a contract shall be interpreted together,
attributing to the doubtful ones that sense which may result from all of them taken jointly."

SECURITY BANK CORP. VS. HON. COURT OF APPEALS, ET AL.

G.R. No. 141733, February 8, 2007

While it cannot be gainsaid that the terms and conditions in the Contract of Security
Services (CSS) were incorporated to the PRA (sic) as integral parts thereof, nevertheless, We
conform to the finding of the court of origin that the 2nd contract (PRA) precisely and particularly
dealt with the mode of resolving PISA’s liability resulting, if any, from [the] March 12, 1992
robbery. (Order dated July 12, 1993, p.1; Records, p.113). It distinctively provides a clear cut
manner by which the right of action against PISA may be exercised by [SBC] pertaining to a
specific robbery incident—a matter visibly non-existent in the CSS. Indeed, this special provision
controls and prevails over the general terms and conditions extant on the CSS. (Yatco v. El Hogar
Filipino, 67 Phil. 610) When a general and a particular provision are inconsistent, the latter is
paramount to the former. Ergo, a particular intent, as in this case reflected in letter e, paragraph 5
of the PRA will control a general intent embodied in paragraph 9 of the Contract of Security
Services. (Section 12, Rule 130, Revised Rules of Court) Thus, the PRA is paramount to and
prevails over the terms and stipulations in the first contract (CSS) on matters relevant and
material to PISA’s liability relating to the robbery.

See also: GUILLERMO CORTES vs. INTERMEDIATE APPELLATE COURT, ET AL.

G.R. No. 73678 July 21, 1989

EDGAR LEDONIO vs. CAPITOL DEVELOPMENT CORPORATION

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G.R. No. 149040, July 4, 2007

EQUITABLE PCI BANKING CORPORATION, ET AL. vs. RCBC CAPITAL

CORPORATION
G.R. No. 182248, December 18, 2008

Section 13. Interpretation according to circumstances. - For the proper

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

INTERPRETATION ACCORDING TO CIRCUMSTANCES

Here, one who is tasked to consider the evidence presented is implored to place himself
in the shoes of the parties to the document and envision the circumstances under which the
provisions of an instrument were created. This rule is useful in interpreting contracts such as
equitable mortgages or lease with option to buy.

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

ORDINARY MEANING IS PREFERRED

Section 14 provides that when interpreting a term used in a contract or instrument, its
general meaning or ordinary signification is to be applied. This is an instance when a mere
“layman’s understanding” is preferred for verily there are contracts that do not require or was not
attended by the intervention of a lawyer. However, evidence may be introduced that the term
used has a local, technical or otherwise peculiar signification.

An example of this is the term “PAKIAO”. Under the Omnibus Rules to implement the
Labor Code, Workers who are paid by results, including those who are paid on piece-work,
"takay," "pakiao" or task basis are not entitled to certain labor standards benefits. However, the
term PAKIAO may not be understood by laymen in the same manner as it is used under the
Omnibus Rules.

CASES

SECURITY BANK CORP. VS. HON. COURT OF APPEALS, ET AL.

G.R. No. 141733, February 8, 2007

Paragraph 5 of the PRA specifically states that PISA’s payment was subject to express
terms and conditions, one of which was the following:

(e) The parties hereto further agree that this agreement and/or payment
of the whole amount of P3,027,728.01, shall not affect or prejudice, directly or
indirectly, whatever cause of action SBC may have against PISA and whatever
claim or defense the latter may have against SBC, if the maximum recoverable
proceeds of the insurance covering the loss suffered by SBC could not be
recovered from the insurer. Further, it is agreed that should Security Guards
Wilson Taca and Ernesto Mariano be absolved from the charge of robbery in
band and/or are found by the proper court not to have been involved at all in the

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alleged conspiracy, and that it is duly established through legal action before the
competent court that their failure to prevent the robbery was not due to their, or
their PISA co-guards’ negligence and/or willful act, whatever installments may
have been paid by PISA under this Agreement shall be reimbursed with legal
interest to be computed from the time of actual payment, the same to be
amortized in eighteen (18) equally monthly installments, with the interest thereto
being based on the diminishing balance.

We hold that reading the clause as requiring a final judgment is a strained interpretation
and contrary to settled rules of interpretation of contracts. Paragraph 5(e) only requires that the
proceeds "could not be recovered from the insurer," and does not state that it should be so
declared by a court, or even with finality. In determining the signification of terms, words are
presumed to have been used in their primary and general acceptance, and there was no
evidence presented to show that the words used signified a judicial adjudication. Indeed, if the
parties had intended the non-recovery to be through a judicial and final adjudication, they should
have stated so. In its primary and general meaning, paragraph 5(e) would cover LIC’s
extrajudicial denial of SBC’s claim.

JOSE R. MORENO, JR. vs. PRIVATE MANAGEMENT OFFICE

G.R. No. 159373, November 16, 2006

Petitioner further argues that the "suggested indicative price" of P21,000,000.00 is not a
proposed price, but the selling price indicative of the value at which respondent was willing to
sell. Petitioner posits that under Section 14, Rule 130 of the Revised Rules of Court, the term
should be taken in its ordinary and usual acceptation and should be taken to mean as a price
which is "indicated" or "specified" which, if accepted, gives rise to a meeting of minds. This was
the same construction adopted by the trial court, viz.:

Going to defendant’s main defense that P21 Million was a "suggested indicative price" – we have
to find out exactly what "indicative" means. Webster Comprehensive Dictionary, International
Edition, gives us a graphic meaning that everybody can understand, when it says that "to
indicate" is [t]o point out; direct attention[;] to indicate the correct page[.] "Indicative" is merely the
adjective of the verb to indicate. x x x when the price of P21 [M]illion was indicated – then it
becomes the "indicative" price – the correct price, no ifs[,] no buts. We do not agree.

Under the same section and rule invoked by petitioner, the terms of a writing are
presumed to have been used in their primary and general acceptation, but evidence is admissible
to show that they have a local, technical, or otherwise peculiar signification, and were so used
and understood in the particular instance, in which case the agreement must be construed
accordingly.

The reliance of the trial court in the Webster definition of the term "indicative," as also
adopted by petitioner, is misplaced. The transaction at bar involves the sale of an asset under a
privatization scheme which attaches a peculiar meaning or signification to the term "indicative
price."

Under No. 6.1 of the General Bidding Procedures and Rules of respondent, "an indicative
price is a ball-park figure and [respondent] supplies such a figure purely to define the ball-park."
The plain contention of petitioner that the transaction involves an "ordinary armslength sale of
property" is unsubstantiated and leaves much to be desired. This case sprung from a case of
specific performance initiated by petitioner who has the burden to prove that the case should be
spared from the application of the technical terms in the sale and disposition of assets under
privatization. Petitioner failed to discharge the burden.

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It appears in the case at bar that petitioner’s construction of the letter of

February 22, 1993 – that his assent to the "suggested indicative price" of P21,000,000.00
converted it as the price certain, thus giving rise to a perfected contract of sale – is petitioner’s
own subjective understanding. As such, it is not shared by respondent. Under American
jurisprudence, mutual assent is judged by an objective standard, looking to the express words the
parties used in the contract. Under the objective theory of contract, understandings and beliefs
are effective only if shared. Based on the objective manifestations of the parties in the case at
bar, there was no meeting of the minds. That the letter constituted a definite, complete and
certain offer is the subjective belief of petitioner alone. The letter in question is a mere evidence
of a memorialization of inconclusive negotiations, or a mere agreement to agree, in which
material term is left for future negotiations. It is a mere evidence of the parties’ preliminary
transactions which did not crystallize into a perfected contract. Preliminary negotiations or an
agreement still involving future negotiations is not the functional equivalent of a valid, subsisting
agreement. For a valid contract to have been created, the parties must have progressed beyond
this stage of imperfect negotiation. But as the records would show, the parties are yet undergoing
the preliminary steps towards the formation of a valid contract. Having thus established that there
is no perfected contract of sale in the case at bar, the issue on estoppel is now moot and
academic.

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

ANICETO G. SALUDO, JR. ET AL. vs. COURT OF APPEALS, ET AL.

G.R. No. 95536, March 23, 1992

Indubitably, that private respondent can use substitute aircraft even without notice and
without the assumption of any obligation whatsoever to carry the goods on any specified aircraft
is clearly sanctioned by the contract of carriage as specifically provided for under the conditions
thereof.

Petitioners' invocation of the interpretative rule in the Rules of Court that written words
control printed words in documents, to bolster their assertion that the typewritten provisions
regarding the routing and flight schedule prevail over the printed conditions, is tenuous. Said rule
may be considered only when there is inconsistency between the written and printed words of the
contract.

As previously stated, we find no ambiguity in the contract subject of this case that would
call for the application of said rule. In any event, the contract has provided for such a situation by
explicitly stating that the above condition remains effective "notwithstanding that the same (fixed
time for completion of carriage, specified aircraft, or any particular route or schedule) may be
stated on the face hereof."

Section 16. Experts and interpreters to be used in explaining certain writings. -

When the characters in which an instrument is written are difficult to be deciphered, or the
language is not understood by the court, the evidence of persons skilled in deciphering
the characters, or who understand the language, is admissible to declare the characters or
the meaning of the language. (14)

Although English is the official language of the Philippine Judiciary, it cannot be denied
that our country is a hodge-podge of cultures and ethnicities with their own dialects or languages
and sometimes contracts are written in such native dialects or languages. In such cases, the law
allows the introduction of evidence, generally testimonial, to translate the language with which the
tribunal is not familiar. If a party is not satisfied or doubts the veracity of the translation, he may

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raise the same during trial, on cross-examination or even present his own expert or
interpreter to rebut the same.

Section 17. Of two constructions, which preferred. - When the terms of an

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

This covers a situation where there are different interpretations given by as many parties
to one single document. The prevailing interpretation will be determined according to the following
rules:

1. The interpretation which the other party believed and used will prevail;
2. When both constructions are equally proper, that interpretation which is most favorable to
the party for whose benefit the provision was made in the first place will prevail.

Section 18. Construction in favor of natural right. - When an instrument is equally

susceptible of two interpretations, one in favor of natural right and the other against it, the
former is to be adopted. (16)

A natural right is one that exists by virtue of natural law. This rule is usually applicable to
waivers and renunciations.

Section 19. Interpretation according to usage. - An instrument may be construed

according to usage, in order to determine its true character. (17)

Dean Inigo’s example relates to a bill of lading. A bill of lading operates both as a receipt
and as a contract. It is a receipt for the goods shipped and a contract to transport and deliver the
same as therein stipulated. As a receipt, it recites the date and place of shipment, describes the
goods as to quantity, weight, dimensions, identification marks and condition, quality, and value. As
a contract, it names the contracting parties, which include the consignee, fixes the route,
destination, and freight rate or charges, and stipulates the rights and obligations assumed by the
parties (PHOENIX ASSURANCE CO., LTD. vs. UNITED STATES LINES, G.R. No. L-24033,
February 22, 1968). Thus, a bill of lading should be interpreted according to these usages.
.

PROVISIONS OF THE CIVIL CODE

ON THE INTERPRETATION OF CONTRACTS

Art. 1370. If the terms of a contract are clear and leave no doubt upon the intention
of the contracting parties, the literal meaning of its stipulations shall control.

If the words appear to be contrary to the evident intention of the parties, the latter
shall prevail over the former. (1281)

Art. 1371. In order to judge the intention of the contracting parties, their
contemporaneous and subsequent acts shall be principally considered. (1282)

Art. 1372. However general the terms of a contract may be, they shall not be
understood to comprehend things that are distinct and cases that are different from those
upon which the parties intended to agree. (1283)

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Art. 1373. If some stipulation of any contract should admit of several

meanings, it shall be understood as bearing that import which is most adequate to render
it effectual. (1284)

Art. 1374. The various stipulations of a contract shall be interpreted together,

attributing to the doubtful ones that sense which may result from all of them taken jointly.
(1285)

Art. 1375. Words which may have different significations shall be understood in
that which is most in keeping with the nature and object of the contract. (1286)

Art. 1376. The usage or custom of the place shall be borne in mind in the
interpretation of the ambiguities of a contract, and shall fill the omission of stipulations
which are ordinarily established. (1287)

Art. 1377. The interpretation of obscure words or stipulations in a contract shall

not favor the party who caused the obscurity. (1288)

Art. 1378. When it is absolutely impossible to settle doubts by the rules

established in the preceding articles, and the doubts refer to incidental circumstances of a
gratuitous contract, the least transmission of rights and interests shall prevail. If the
contract is onerous, the doubt shall be settled in favor of the greatest reciprocity of
interests.

If the doubts are cast upon the principal object of the contract in such a way that it
cannot be known what may have been the intention or will of the parties, the contract shall
be null and void. (1289)

Art. 1379. The principles of interpretation stated in Rule 123 of the Rules of Court
shall likewise be observed in the construction of contracts. (n)

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

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

TESTIMONIAL OR ORAL EVIDENCE DEFINITION

It is evidence elicited by the mouth of a witness as distinguished from a mere real or

documentary evidence. Sometimes called ‘viva voche’ evidence which means ‘the living voice” or
word of mouth. Witness is called to stand and asked questions and answer the same questions.
That person is called a ‘witness’.

REMEMBER: Do not confuse COMPETENT WITNESS from COMPETENT EVIDENCE. The

COMPETENCY TEST of evidence applies to the TESTIMONY of the qualified witness.

Situations:
1. A witness who can perceive or even if he cannot perceive but cannot remember what he
has perceived—he is incompetent to become a witness.
2. He can perceive, can remember but cannot relate his perception to others—disqualified
to testify.
3. If a witness sis one who has no personal knowledge of an evident the fact of which we
want to prove, he is also incompetent to testify.

The competence of the witness therefore refers to the personal qualification of the person
testifying.

WHY IS TESTIMONIAL EVIDENCE IMPORTANT?

Even if the lowest in the hierarchy of evidence, without the introduction of testimonial evidence,
there cannot be an introduction of either real or object evidence because the admission of any
evidence including the testimonial, real or documentary evidence, would require the process of
IDENTIFICATION; and that can only be done through a witness.

Identification is a legal proof; IDENITIFICATION PRECEDES AUTHENTICATION. Without any

witness whatsoever, no evidence can ever be authenticated in the court. Even the so called self-
authenticating document would require a witness to identify it.

Several categories of documents are deemed to be self-authenticating:

1. Certified copy of public or business records;

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2. Official publications of government agencies;

3. Newspaper articles;

These do not require outside evidence of authenticity in order to be admitted in evidence.

Example: certificate of title—the law accords it admissibility for it was issued pursuant to an
official function of an officer of the government. Its authenticated. However, will that cert. of title
present itself? It cannot, therefore the need for testimonial evidence.

Is there an EXCEPTION TO THE RULE?

Let’s say document or object evidence is one that would still require the intervention or
presentation of a witness for it to be identified. To my mind, naa but it’s a very lose exception for
the reason that you are dispensing evidence. That is in the case of STIPULAITONS.

When one party stipulates as to the existence and due execution of a document, it is
automatically admitted by the court even if it is not sponsored by a witness.

When a witness goes to the witness stand and identify the document or present object
evidence, we call that the process of “sponsoring of evidence”.

PRESUMPTION IN FAVOR OF COMPETENCE OF WITNESS

Is there a presumption under the law that a witness is not competent to testify unless
proven otherwise? NO.

GENERAL RULE: A person who takes the stand as a witness is presumed to be able to testify.
A party who desires to question the competence of a witness must do so by making an objection
as soon as the facts tending to show the witness’ incompetency are apparent.

So let us say somebody who is called to testify on what he saw on the particular date & particular
time, so an eye witness. And later on during his testimony, it is clear that he never saw the
incident; in the beginning he is presumed to be competent to testify but if it becomes apparent
that he is not really in the position to testify as to those facts, then the other party must make a
TIMELY objection so that the witness would be declared to be incompetent to testify.

REMEMBER: THAT THE INCOMPETENCY AS TO CERTAIN PART OF THE TESTIMONY DOES

NOT HAVE TO AFFECT THE REST OF THE OTHER TESTIMONY. How many times na ba ko na
biktima ug ingna. I present a witness and he tend to testify to a lot of matters but then later on
only to find out there are certain matters that the court declares that he is not competent to testify
about.

Will that affect the entire testimony? No, because he may be incompetent to testify as to certain
facts but just the same as he may be competent to testify as to other facts as well.

Let’s go to Section 20.

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

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

So what are the basic qualifications of witnesses?

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Under Sec 20 Rule 130 there are 2 basic qualifications:

1. He can perceive – meaning he is in the position to use his senses. The law does not say
that you are in the possession of all you senses but it is important that you have some
matter of perception. Perception does not only just puros mata, or kung unsa
masimhotan sa imu ilong or kung unsa imu madunggan. There are a lot of senses that
may remain.

2. That in perceiving the witness can make know his perception to others. So that is the
ability to communicate or the capacity of the person to communicate meaningfully to
others.

Now that it only the qualifications in Section 20 but let me add 2 more:
1. Under Section 1 of Rule 132 the witness must take either an OATH OR AFFIRMATION
2. He must not possess any of the disqualifications imposed by the law or by the rules of
court.

4 BASIC QUALIFICATION OF A WITNESS:

1. The witness can perceive
2. In perceiving, he can make known his perception to others
3. Must take an oath or affirmation
4. Must not possess any of the disqualifications imposed by the law or the Rules of
court.

THE WITNESS MUST BE ABLE PERCEIVE

It would therefore by absurd to ask the blind man what he saw. It is also absurd to ask a
bungol kng unsa imuha nadunggan. In fact, if you are talking that way, you are CRAZY!


Corollary therefore to this rule, it follows that the capacity of the witness to perceive is
that the requirement that the WITNESS MUST ALSO HAVE PERSONAL KNOWLEDGE
OF THE FACTS SURROUNDING THE SUBJECT MATTER OF HIS TESTIMONY.
Because in Section 36 of Rule 130 requires that must a witness must testify only as to
those matter that he has personal knowledge or those which derive from his own
perception meaning whatever he saw he may testify, whatever he smelled he may testify
and so on and so forth.

So when the witness takes an affirmation or an oath, he cannot live up to his oath when
his testimony is not based on his personal knowledge. So when you say that you swear
to tell the truth and nothing but the truth so help me God, what do you swear to? If you
tell something that is not based on your personal knowledge,is that true? you don’t know
because it was merely related to you and it was not based on your own perception of
facts. So WITHOUT PERSONAL KNOWLEDGE THEREFORE THE WITNESS LACKS
COMPETENCE TO TESTIFY.

Apart from the ability to perceive or at least from having at least one functional sense you
should have the….

ABILITY TO MAKE KNOWN YOUR PERCEPTION TO OTHERS.

It involves 2 factors:

1. The ability to remember what has been perceived.

2. Ability to communicate his perception or of what you have remembered.

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So therefore 1st perception, 2nd you remembered and 3rd communication.

So let us presume there is a witness he has taken an oath he has personal knowledge of
an event on which he is going to testify, so a witness is presented to testify as to the
matter what he has perceive but what if he is like me Alzheimer’s?  I cannot remember
so I cannot be a competent witness.

Is a DEAF MUTE necessarily an incompetent witness?

A deaf-mute is not necessarily an incompetent as a witness.

They are competent where they:

(1) can understand and appreciate the sanctity of an oath;

(2) can comprehend facts they are going to testify on, and;
(3) can communicate their ideas through a qualified interpreter.
(People vs. Tuangco, G.R. No. 130331, 11/ 22/ 2000)

WITNESS MUST TAKE AN OATH OR AFFIRMATION.

Taking an oath or affirmation is either rare intention or merely gloss over by

commentators in discussing the qualifications of the witness to take a stand although the
rule requires that the examination of the witness in the trial shall be done under oath or
affirmation.

Therefore a person is disqualified to be a witness if he is incapable of understanding the

duty to tell the truth. An oath or affirmation is necessary for the witness to recognize the
duty to tell the truth. The oath of the witness signifies that he is swearing to his creator to
tell the truth and nothing but the truth and that if he does not, he can be made liable for
PERJURY.

What should the judge therefore look at when a witness is proposed to be presented and
about to take an oath?

The judge must look at WON the witness understands the oath he is saying.

Asa man gikan ang oath? Kamang gidamay pa ang Ginoo?  that is not really wrong in
taking an oath before a duly constituted authority. Okay ra na xa.

DISTINGUISH BETWEEN AN OATH AND AN OBLIGATION

To my mind AN OBLIGATION IS SIMPLY AN OATH WITH A CURSE, what do I mean

when I say that? What happens when manumpa ka sa babaye na imuha hinugugma?
Like pakaslan tika sa lima ka simbahan ug ihatag nko ang bulan ug ang langit kung dili
gani kilatan pako, what is that? That’s an oath! you oblige yourself to do something and
when you failed to do it, kilatan pko so that is a curse! So here, the curse is not so
problematic because it says so help me God. The curse therefore after this oath is that
you will be answerable legally because you broke your oath or you obligation to tell the
truth.

IF THE WITNESS DOES NOT BELIEVE IN GOD HE WOULD JUST TAKE AN

AFFIRMATION. How is an affirmation made? Simple lang, just omit the words “so help
me God”

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What if you are competent to testify, you can perceive you can make your perception known to
others and you are able to take the oath or affirmation but the accused is relative, so does that
relationship render the witness incompetent to testify? NO

RELATIONSHIP DOES NOT RENDER A WITNESS INCOMPETENT; it does not necessarily

result to interest in the outcome of the case

PEOPLE V. BONIAO
JANUARY 23, 1993

The appellant's other contentions, such as the charge of inconsistencies in the

testimonies of the prosecution witnesses and the alleged error committed by the trial
court in giving credence to such testimonies, the witnesses who gave the same being
related to the victims, are equally without merit.

While witnesses Virginita Estampa Llano, Alfredo Estampa and Jessie Estampa were
related in one way or another to the victims, save for Cirilo Dispolo.

relationship does not by itself preclude the trial court from believing such testimonies or
impair the witnesses' credibility. They are not disqualified by the Rules on that
ground 33 alone; this Court has held that it is not to be lightly supposed that relatives of
the deceased would callously violate their conscience to avenge the death of a dear one
by blaming it on persons whom they believe to be innocent thereof.

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.

CONVICTION OF A CRIME

PEOPLE V. SORREL
AUGUST 29, 1997

Under the Rules, a person is qualified and competent to be a witness if (a) he is capable
of perceiving and (b) perceiving, he can make his perception known. [26] Unless
disqualified,[27]such a person would be capable of testifying.[

In consonance with the modern trend to broaden the field of competency of witnesses
and to restrict that of incompetency, [29] even a person convicted of a crime or one who
has a pending criminal case is not by that alone disqualified from testifying.

PEOPLE V. TANEO
FEBRUARY 8, 1993

Thus, if he were to testify falsely against the latter, he must have been moved by a
strong, improper and ulterior motive. That motive must have been established; appellant
failed to do so. In the absence of evidence to show any reason or motive why witnesses
for the prosecution should have testified falsely, the logical conclusion is that no improper
motive existed, and that their testimony is worthy of full faith and credit.

Here is an interesting case of…

PEOPLE V. DE LEON
G.R. No. 115367 September 28, 1995

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It is a case for murder or homicide, the witness against the accused is also is being
prosecuted as well of murder in the other criminal case. So here killer is testifying against
the killer or an accused against the other accused of a crime.

So the accused is saying, since he is also being charged with murder of other person
then he is not competent to testify because clearly he will not be testifying properly.

HELD: Fast realizing that his cause lacks the proverbial "leg to stand on," the appellant
capitalizes on Mariano's admission that he was charged with homicide or murder before
another court. He then submits that no credence could be given to Mariano because the
latter was himself accused of having killed somebody. 39

Such a submission fails to impress us. Section 20, Rule 130 of the Rules of Court
provides that except as provided for in the succeeding sections [Sections 21, 22, 23, 20,
and 25], all persons who can perceive, and perceiving, can make known their perception
to others, may be witnesses. Religious or political belief, interest in the outcome of the
case, or conviction of a crime unless otherwise provided by law, shall not be a ground for
disqualification.

Clearly, the mere pendency of a criminal case against a person does not disqualify him
from becoming a witness. As a matter of fact, conviction of a crime does not disqualify
such person from being presented as a witness unless otherwise provided by law

POLITICAL BELIEF AND RELIGIOUS BELIEF

To my mind, political belief should depend to mean not only a belief or pagtuo. what are
political beliefs? Anarchists, democratic. To my mind, it should be read to include
POLITICAL INCLINATIONS OR POLITICAL INCLINATION.

So like the impeachment of CJ Corona it is a political exercise, like if you are in a political
party against Corona, does it mean that you are disqualified to testify? The answer is no
assuming that the rules of court are applicable in the impeachment trial. Because the rule
is just the admissibility of evidence the appreciation of such evidence will be later on
determined by the judge, IT DOES NOT MEAN THAT WHEN EVIDENCE IS ADMITTED
IT IS ALREADY APPRECIATED BY THE JUDGE TO BE THE PROPER EVIDENCE.

UNLESS OTHERWISE PROVIDED BY LAW: Article 821 of the Civil Code when case is for
PROBATE OF THE WILL

PEOPLE S. UMALI
FEB 4, 1991

The phrase "conviction of a crime unless otherwise provided by law" takes into account
Article 821 of the Civil Code which states that persons convicted of:
1. falsification of a document,
2. perjury or
3. false testimony" are disqualified from being witnesses to a will."

Since the witness Francisco Manalo is not convicted of any of the above-mentioned
crimes to disqualify him as a witness and this case does not involve the probate of a
will, We rule that the fact that said witness is facing several criminal charges when he
testified did not in any way disqualify him as a witness.

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The testimony of a witness should be given full faith and credit, in the absence of
evidence that he was actuated by improper motive. Hence, in the absence of any
evidence that witness Francisco Manalo was actuated by improper motive, his testimony
must be accorded full credence.

COMMENT: Because here To my mind there is only one and you can learn this in your
succession Art 821 the following is disqualified to be a witness in a will and no. 2 thereof those
who have been convicted of falsification of document, perjury or false testimony.

How is this related to Section 20 of Rule 130? This is “unless otherwise provided by law” What if
one of the witnesses in a notarial will is not qualified to testify because he is convicted of
falsification of document, forgery or false testimony, what will be the effect? Let us say i-probate
ang will and there is somebody opposing that the will of will is invalid, so now the formal
requisites of the will should be proven and the witnesses will be called and they must testify that
they were there signing the will unya naa diay usa who is not allowed to be a witness so dili 2
nimo xa pwede ipatawag sa witness stand.

Section 21 . Disqualification by reason of mental incapacity or immaturity. — The following

persons cannot be witnesses:
a. Those whose mental condition, at the time of their production for examination, is such
that they are incapable of intelligently making known their perception to others;

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

(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;

So what comes to mind? Maybe a person has mental impairment, example a person who
is insane. Can an insane person perceive properly? NO. Can an insane person testify
during a lucid interval? YES.

WHAT ABOUT MENTAL RETARDATES?

Mental retardate is NOT per se disqualified to be a witness, again there is a presumption

of competency to testify.

WHAT IS THE EFFECT IF THE WITNESS IS A MENTAL RETARDATE?

Its only effect was to consider her testimony from the point of view of an 8-year-old minor.

PEOPLE vs. dela Cruz

July 11, 2002

The determination of the competence of witnesses to testify rests primarily with the trial
judge who sees them in the witness stand and observes their behavior or their
possession or lack of intelligence, as well as their understanding of the obligation of an
oath.[23]

The prosecution has proved JONALYN’s competency by the testimony of Dr.

Tuazon. The finding of the trial court, as supported by the testimony of Dr. Tuazon that
JONALYN had the understanding of an 8-year-old child, does not obviate the fact of her
competency. Its only effect was to consider her testimony from the point of view of an 8-
year-old minor. Even a mental retardate is not, per se, disqualified from being a witness.
[24]
JONALYN, who may be considered as a mental retardate but with the ability to make

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her perceptions known to others, is a competent witness under Section 20 of

Rule 130 of the Rules on Evidence.[

PEOPLE V. DELOS SANTOS

AUGUST 30, 2001

Hence, a mental retardate is not, by reason of such handicap alone, disqualified from
testifying in court. He or she can be a witness, depending on his or her ability to relate
what he or she knows. If the testimony of a mental retardate is coherent, the same is
admissible in court[33]. Thus, we have in several cases[34] upheld the conviction of the
accused based mainly on statements given in court by the victim who was a mental
retardate.

PEOPLE V. ESPANOLA
APR 18, 1997

As long as the senses of a mental retarded can perceive facts and he can convey his
perception in courts, he can be a witness.

(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.

What would be the gauge to determine whether the child that is so young has enough mental
maturity to capacitate the child to become a witness?

There is NO GAUGE AS TO AGE actually. Of course, infants dili pwede. So how old? If there
is no set age to determine that the child witness is qualified to testify in terms of MENTAL
MATURITY, what do we gauge?

According to SC in several cases, for example…

PEOPLE V. GALAS
SEPT 24, 1996,

It is thus clear that any child regardless of age can be a competent witness if they met
the following criteria:
1. Capacity of observation
2. Capacity of recollection
3. Capacity of communication

The accused urge us to give no weight to Joemar's testimony because of its unreliability;
they claim that he could not even remember the month and the year when the incident
happened. A close scrutiny of his testimony discloses, however, that Joemar was clear
on the facts he observed surrounding the death of Federico which, according to him took
place on a date "nearing Christmas."[47] Since the date of Federico's death was
undubitably established to be 23 December 1985, which was, indeed, "nearing
Christmas," Joemar's approximation was sufficient. The accused also harp on Crisanto
Gamayon's credibility on the ground that if he were really there, he would have
unquestionably helped his father instead of merely standing still and simply gaping at the
latter's killing by five men and returning to the scene only on the following day.

Crisanto's testimony that he was afraid[48] sufficiently refutes this objection. Fear has
been known to render people immobile, if not useless, in some life-and-death
situations. Crisanto and Joemar left Federico's body overnight at the scene. of the crime
because darkness had fallen and fear gripped them.

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Under the circumstances, the 16-year old Crisanto and the 5-year old Joemar could not
be expected to act like adults, in full possession of their mental emotional, and
psychological faculties.

PEOPLE V. MENDOZA
FEB 22, 1996

The requirements then of a child’s competency as a witness are the: (a) capacity of
observation, (b) capacity of recollection, and (c) capacity of communication. And in
ascertaining whether a child is of sufficient intelligence according to the foregoing
requirements, it is settled that the trial court is called upon to make such determination.

The decision of this question rests primarily with the trial judge, who sees the proposed
witness, notices his manner, his apparent possession or lack of intelligence, and may
resort to any examination which will tend to disclose his capacity and intelligence as well
as his understanding of the obligations of an oath. As many of these matters cannot be
photographed into the record, the decision of the trial judge will not be disturbed on
review unless from that which is preserved it is clear that it was erroneous. The trial court
has adjudged Paul Michael competent to testify.

We agree.

A close and careful examination of the testimony of Paul Michael shows that at the time
he testified, he could be deemed a child of above average intelligence, i.e., capable of
giving responsive answers to the questions asked of him by the trial judge, as well as
recalling events and relating them to such recollections.

The initial hesitancy of Paul Michael to name his father as the author of the crime was
sufficiently explained by the trial court as follows: The first time Paul Michael was
presented as [a] witness, the only thing substantial he testified on was that his father
boxed his mother in the mouth and tied her. On further questions, he refused to answer
anymore. The Court noticed the reason for such adamant attitude of the witness. His
father, the accused, was directly in his sight and whenever their eyes met, the child could
speak no more. The second time the witness was presented, the private prosecutor
covered the child from the accused

The Court likewise directed the accused to sit farther away thereby placing the accused
out of the direct sight of the witness. As a result, the child was able to testify freely and
extensively without hesitation. We defer to such observation and explanation. Indeed,
there are certain matters that aid the trial court in assessing the credibility of a witness
which are not available to the appellate court, such as emphasis, gesture, and the
inflection of the voice of the witness. The trial court had the distinct opportunity to make
such observations and to avail of such aids while Paul Michael was on the witness stand,
thus, we find no reason to disregard the assessment made by the trial court.

Note: The next meeting we are going to discuss the rule on examination of child witnesses
because it is part of section 20.

OTHER ISSUES OF THE QUALIFICATION or CAPACITY TO BECOME A WITNESS

RECALL: RULE 9 SECTION 3 when the party is considered in default, what would be the effect
if the party is in default? You lose your standing in court, you are limited to a mere observer you
cannot proved or disproved anything.

Question: In a civil case there were several defendants, one defendant answered and the other
dud not answer and therefore he was declared in default, now, the only witness of the who

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answer is his co-defendant who was defaulted. now here comes the victim saying he
cannot testify because he was already in default he is reduced to a mere observer and cannot
prove or disprove anything. What did the SC said?

CAVILI V. FLORENDO
OCTOBER 9, 1987

They advance the argument that to allow Perfecta Cavili to stand as witness would be to
permit a party in default "to take part in the trial."

An explanation of the Rule is in order.

Loss of standing in court is the consequence of an order of default. Thus, a party

declared in default is considered out of court and cannot appear therein, adduce
evidence, and be heard and for that reason he is not entitled to notice. (Rule 18, Rules of
Court; Lim Toco v. Go Fay, 80 Phil. 166) However, "loss of pending" must be understood
to mean only the forfeiture of one's rights as a party litigant, contestant or legal
adversary.

A party in default loses his right to present his defense, control the proceedings, and
examine or cross-examine witnesses. He has no right to expect that his pleadings would
be acted upon by the court nor may he object to or refute evidence or motions filed
against him. There is nothing in the rule, however, which contemplates a disqualification
to be a witness or a opponent in a case. Default does not make him an incompetent.

As opposed to a party litigant, a witness is merely a beholder, a spectator or onlooker,

called upon to testify to what he has seen, heard, or observed. As such, he takes no
active part in the contest of rights between the parties. Cast in the cited role of witness, a
party in default cannot be considered as " a part in the trial." He remains suffering the
effects of an order of default.

A party in default may thus be cited as a witness by his co-defendants who have the
standing and the right to present evidence which the former may provide. The incidental
benefit giving the party in default the opportunity to present evidence which may
eventually redound to his advantage or bring about a desired result, through his co-
defendants, is of minor consequence.

Of greater concern or importance in allowing the presence of Perfecta Cavili as a witness

in the case at bar, is the preservation of the right of petitioners Quirino and Primitivo
Cavili to secure the attendance of witnesses and the production of evidence in their
behalf. To reject Perfects Cavili's presentation of testimonial evidence would be to treat
Primitivo and Quirino, as if they too were in default. There is no reason why the latter
should also be made to bear the consequences of Perfecta's omission. Moreover, we
cannot deprive Quirino and Primitivo of the only instrument of proof available to them, as
Perfecta alone has been in possession and administration of the claim.

What happens if there is a witness gisubpoena pag-ad2 nya sa court hubog xa. Is the drunk
person automatically disqualified to be a witness?

DRUNKENNESS NOT A DISQUALIFICAITON

PEOPLE V. MELENDRES
APRIL 30, 2003

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As to the alleged mental derangement of Rodrigo, it is true that during his

testimony in open court on December 15, 1993, he was uncooperative, defiant and even
disrespectful to the court. The trial court even cited him for direct contempt and ordered
his incarceration. However, it appeared from the order of the trial court that Rodrigo’s
defiance at that time was not a result of his alleged mental incapacity but because he
was drunk. Moreover, while the prosecution admitted that Rodrigo has experienced
“some mental shock sometime ago”, no evidence was presented by the defense to
impeach him on ground of incompetence.

On the other hand, a review of the transcript of stenographic notes taken during the four
days that Rodrigo testified and underwent examination on the witness stand reveals that,
except for the incident on December 15, 1993, he is responsive to the questions
propounded and was able to convey sufficiently intelligent answers. Under Section 20,
Rule 130 of the Revised Rules of Court, all persons who can perceive, and perceiving,
can make known their perception to others, may be witnesses.

BAR QUESTIONS

Competency and Credibility

Bar 2004
Q: Distinguish: competency of the witness and credibility of the witness

A: Competency of a witness has reference to the basic qualifications of a witness as his capacity
to perceive and his capacity to communicate his perception to others. It also includes the
absence of any of the disqualifications imposed upon a witness.

Credibility of the witness refers to the believability of the witness and has nothing to do with the
law or the rules. It refers to the weight and the trustworthiness or reliability of the testimony.

In deciding the competence of a witness, the court will not inquire into the trustworthiness of the
witness. Accordingly, a prevaricating witness of one who has given contradicting testimony is still
a competent witness.

Bar 1994

Q: Al was accused of raping Lourdes. Only Lourdes testified on how the crime was
perpetrated. On the other hand, the defense presented Al’s wife, son and daughter to
testify that Al was with them when the alleged crime took place. The prosecution
interposed a timely objection to the testimonies on the ground of obvious bias due to the
close relationship of the witnesses with the accused. If you were the judge, how would you
rule on the objection?

A: I would overrule the objection, interest in the outcome of a case which also includes close
relationship is not a ground to disqualify a witness (sec. 20 R132)

Bar 1994

Q: Louis is being charged with frustrated murder of Roy. The prosecutions lone witness,
Mariter, testified to having seen Louise prepare the poison which she later surreptitiously
poured into Roy’s wine glass, Louise sought the disqualification of Mariter as witness on
account of her previous conviction of perjury. Rule on Louise’s contention.

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A: The contention of Louise has no legal basis. Basic is the rule that previous
conviction is not a ground for disqualification of a witness, unless otherwise provided by law.
Mariter’s conviction is not sufficient to have her disqualified to testify. Her situation is not one of
the exceptions provided for by law.

Let’s go to Section 22.

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

This is what you called MARITAL DISQUALIFICATION RULE.

As noted by Wigmore, the marital disqualification rule consists of two parts:

(1) the incapacity of one spouse to testify for the other, a disqualification designed to obviate
perjury; and
(2) the privilege of one spouse not to testify against the other, a right designated to prevent
domestic disunion and unhappiness (U.S. vs. Concepcion, 31 Phil. 182,187; 2 Wigmore
on Evidence 731).

Wigmore notes that the privilege has no longer any good reason for retention. "In an age
which has so far rationalized, depolarized, and de-chivalrized the marital relation and the
spirit of Femininity as to be willing to enact complete legal and political equality and
independence of man and woman, this marital privilege is the interest anachronism, in legal
theory, and an indefensible obstruction to truth, in practice". After noting that some States had
abolished the privilege, the American Bar Association's Committee on the improvement of the
Law of Evidence in 1937-38 recommended its abolition (8 Wigmore on Evidence 232).

BASIS FOR THIS RULE

In order to preserve the community’s intent to preserve the marriage relations and
promote domestic peace

For instance, in United States v. Concepcion, 31 Phil. 182 (1915) the basis of the rule is
said to be the "considerations of public policy growing out of the marital relation." Said the
Court: "To allow one to testify for or against the other would be to subject him or her to
great temptation to commit perjury and to endanger the harmony and confidence of the
marital relation." At 187.

On the other hand, in People v. Francisco, 78 Phil. 694 (1947), the Court gave as
reasons for the privilege the following: "First, identity of interests; second, the consequent
danger of perjury; third, the policy of the law which deems it necessary to guard the
security and confidences of private life even at the risk of an occasional failure of justice,
and which rejects such evidence because its admission would lead to domestic disunion
and unhappiness; and fourth, because, where a want of domestic tranquillity exists, there
is danger of punishing one spouse through the hostile testimony of the other."

ALVAREZ VS, RAMIREZ

GR No. 143139 Oct 14, 2005
(a must read case). It comes out in the bar.

The issue for our resolution is whether Esperanza Alvarez can testify against her
husband.

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Section 22, Rule 130 of the Revised Rules of Court provides:XXXXX

The reasons given for the rule are:

1. There is identity of interests between husband and wife;
2. If one were to testify for or against the other, there is consequent danger of
perjury;
3. The policy of the law is to guard the security and confidences of private life,
even at the risk of an occasional failure of justice, and to prevent domestic
disunion and unhappiness; and
4. Where there is want of domestic tranquility there is danger of punishing one
spouse through the hostile testimony of the other. [11]

But like all other general rules, the marital disqualification rule has its own exceptions,
both in civil actions between the spouses and in criminal cases for offenses committed by
one against the other. Like the rule itself, the exceptions are backed by sound reasons
which, in the excepted cases, outweigh those in support of the general rule. For
instance, 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.[12]

The rule that the injury must amount to a physical wrong upon the person is too
narrow; and the rule that any offense remotely or indirectly affecting domestic harmony
comes within the exception is too broad. The better rule is that, when an offense directly
attacks, or directly and vitally impairs, the conjugal relation, it comes within the
exception to the statute that one shall not be a witness against the other except in a
criminal prosecution for a crime committee (by) one against the other.’”

Obviously, the offense of arson attributed to petitioner, directly impairs the

conjugal relation between him and his wife Esperanza. His act, as embodied in the
Information for arson filed against him, eradicates all the major aspects of marital life
such as trust, confidence, respect and love by which virtues the conjugal relationship
survives and flourishes.

As correctly observed by the Court of Appeals: “The act of private respondent in setting
fire to the house of his sister-in-law Susan Ramirez, knowing fully well that his wife was
there, and in fact with the alleged intent of injuring the latter, is an act totally alien to the
harmony and confidences of marital relation which the disqualification primarily seeks to
protect. The criminal act complained of had the effect of directly and vitally impairing the
conjugal relation. It underscored the fact that the marital and domestic relations between
her and the accused-husband have become so strained that there is no more harmony,
peace or tranquility to be preserved. The Supreme Court has held that in such a case,
identity is non-existent. In such a situation, the security and confidences of private life
which the law aims to protect are nothing but ideals which through their absence, merely
leave a void in the unhappy home. (People v. Castañeda, 271 SCRA 504). Thus, there
is no longer any reason to apply the Marital Disqualification Rule.”

It should be stressed that as shown by the records, prior to the commission of the
offense, the relationship between petitioner and his wife was already strained. In fact,
they were separated de facto almost six months before the incident. Indeed, the
evidence and facts presented reveal that the preservation of the marriage between
petitioner and Esperanza is no longer an interest the State aims to protect.

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At this point, it bears emphasis that the State, being interested in laying the
truth before the courts so that the guilty may be punished and the innocent exonerated,
must have the right to offer the direct testimony of Esperanza, even against the objection
of the accused, because (as stated by this Court in Francisco[14]), “it was the latter himself
who gave rise to its necessity.”

When will this SPOUSAL IMMUNITY be applied?

2 requisites:

1. The spouses must be legally married for the spouse to invoke the benefit of the rule.
Thus, the rule does not cover illicit cohabitation. The rule applies whether a witness-
spouse is a party to a case or not but the other spouse must be a party to the case.

So it doesn’t matter if they are not sued in their capacity as husband and wife as long as
one spouse is a party to a case.

Shouldn’t we argue that we are putting premium to those living in than those who are
legally married? In effect this is punishing one spouse. Well, that’s just my thought 

2. The prohibited testimony is one that is given during the existence of the marriage.

Therefore it is not prohibited to give testimony for or against the other spouse after the
marriage has already been dissolved. When the marriage is dissolved on the grounds
provided by law, let’s say an annulment or declaration of nullity of marriage, the rule
could no longer be invoked, the spouse can now testify against the other despite an
objection being interposed by the defendant spouse.

If the testimony for or against the spouse offered during the existence of their marriage, it
does not matter if the fact subject matter of the testimony occurred before the marriage,
the affected spouse may invoke the rule by objecting to the testimony.

What is important is when the testimony is going to be made. For as long as the
testimony is given during the existence of the marriage, disqualification applies even if
the facts to be testified about happened before the marriage.

EXAMPLE: If before the marriage, the wife witnessed the murder of coco martin
by the husband. A year after, the husband and wife decided to get married. 6
months after the marriage, the wife became a battered wife. The husband was
then reported to the police as the accused responsible for the murder. May the
wife testify for the prosecution?

ANSWER: The wife MAY testify OVER the OBJECTION of the husband. The
situation of course is covered by marital disqualification rule.

RULE: The KEY DETERMINANT IS WHEN THE TESTIMONY IS OFFERED. If it was

offered DURING the subsistence of the marriage, the disqualification rule will apply. All
that the other spouse will do is to OBJECT to the testimony.

SITUATION: Suppose after a year of the marriage, the marriage is now annulled.
May the wife now testify?

ANSWER: The WIFE MAY NOW testify because the testimony is now given after
the marriage.

QUESTION: may the husband successfully object to the presentation of the

testimony on the ground that the fact subject of the testimony occurred DURING

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the subsistence of the marriage assuming that murder made by the husband
occurred during such marriage?

ANSWER: NO. the husband cannot successfully object for as long as the
testimony is OFFERED AFTER the dissolution of the marriage. So it doesn’t
matter if the fact to be testified about occurred during the marriage.

REMEMBER: There is also a WAIVER of the testimony for FAILURE TO OBJECT.

The testimony is prohibited only over the objection of the affected spouse or the
spouse on whom the testimony is offered. It is the latter spouse who has the right to
object to the competency of the other spouse. It goes without saying that the testimony is
admissible if no objection is interposed by the spouse who has the right to invoke the
prohibition. In other words, the benefit of the rule may be waived, impliedly or expressly.

WHAT TYPE OF TESTIMONY IS COVERED? Oral testimony or written testimony?

it covers both oral and written testimony because the law does not distinguish.

Suppose what is being ask of the wife is not to testify but to PRODUCE DOCUMENTS against
the husband, is this allowed? Like if the husband is charged with estafa and the contract is with
the wife. Does the rule therefore covers the compulsion to produce documents that can be used
to incriminate the other spouse?

I haven’t seen anything in the Philippine jurisprudence but in American jurisprudence it is

very clear that the marital disqualification rule covers not only utterances of the witnesses
but also the production of documents.

What does the phrase, “the latter's direct descendants or ascendants” mean?

Remember this is a mere recent addition to the rules. Wala ni nga phrase kaniad2. The exception
only refers to cases between cases and wife and not to latter’s direct descendants or ascents.

PEOPLE V. NATIVIDAD
70 Phil 315

A wife cannot testify against the husband without his consent even if the husband is
accused of killing the wife’s own child.

It lead to obvious injustice that is why in the latter years in the case of…

ORDONO V. DAQUIGAN
2 SCRA 270

The SC allowed the wife to testify against her husband for raping her daughter.

So we have 2 conflicting rulings, but now there is no conflict because this is now included in the
rules “direct descendants or ascendants.

So direct lng ba, meaning connect by a direct line, example:

1. Can the wife testify against the husband for the crime committed by the husband
to her/their child? YES.
2. Can the wife testify against the husband for the crime committed by the latter
against the wife’s father? YES.

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Indirect:
1. If the crime committed against the wife’s sister, the wife cannot testify because it
is a collateral line.

INSTANCES WHEN ONE SPOUSE MAY TESTIFY AGAINST EACH OTHER

If the wife sues the husband for fraudulently embezzling the paraphernal funds of the
former, the reason for the rule ceases. The wife can now testify against the husband.

Also, if the wife is sued for adultery, the husband cannot be barred from testifying against
the wife.

In a suit for annulment of marriage, each spouse can testify against each other.

SITUATION: I represent a lot of spouses, and its either they were good when I started to accept
them or when I started to intervene in the marriage, nagbulag. I’m the lawyer for both of them.
Legally separated na sila. Can I represent either of them?

Answer: to my mind, there is CONFLICT OF INTEREST. Do not wait for it to arise.

Situation: But what if you are already prosecuting the case and you are defending either of them
already? Should you withdraw from the case because they are now separated and are filing
cases against each other?

ANSWER: There is no conflict of interest there because the cases are not between them. But to
my mind, I don’t have to wait a conflict of interest there. It might not be much of a conflict of
interest to you as a lawyer but what may be affected is you ability to handle the case.

EXCEPTIONS TO THE MARITAL DISQUALIFCIATON RULE

CIVIL CASES COVERED

This must be a civil case file by one against the other. This contemplates a case where
one is a plaintiff or petitioner and the other is the defendant or the respondent.

Where the civil case is between the spouse and the other spouse direct ascendants or
descendants, the marital disqualification would still apply.

Thus if the wife sues the father of the husband for a collection of a loan, the husband will
be barred from testifying against the wife upon the objection of the latter.

This is so because the civil case is not one against the other but between a spouse and
the parent of the other.

There is however, a DIFFERENCE WITH RESPECT TO THE CRIMINAL CASE.

The privilege of one to testify against the other is not confineD on the crimes committed
by one against the other but also by those committed by one against the latter’s direct
descendants or ascendants like the latter’s children or parents. However, crimes against
the spouse’s collateral relatives like uncles, aunts, nephews, cousins, nieces are NOT
covered by the exception.

AVELINO ORDOÑO VS. DAQUIGAN

G.R. No. L-39012 January 31, 1975

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There is a dictum that "where the marital and domestic relations are so strained that
there is no more harmony to be preserved nor peace and tranquillity which may be
disturbed, the reason based upon such harmony and tranquillity 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"

In the Francisco case, the wife, as a rebuttal witness, was allowed to testify against the
husband who was charged with having killed his son and who testified that it was the wife
who killed their son.

We think that the correct rule, which may be adopted in this jurisdiction, is that laid down
in Cargill vs. State, 35 ALR 133, 220 Pac. 64, 25 Okl. 314, wherein the court said:

The rule that the injury must amount to a physical wrong upon the person is too
narrow; and the rule that any offense remotely or indirectly affecting domestic
harmony comes within the exception is too broad. The better rule is that, when
an offense directly attack or directly and vitally impairs, the conjugal relation, it
comes within the exception to the statute that one shall not be a witness against
the other except in a criminal prosecution for a crime committed (by) one against
the other.

Using the criterion thus judiciously enunciated in the Cargill case, it can be concluded
that in the law of evidence the rape perpetrated by the father against his daughter is a
crime committed by him against his wife (the victim's mother). *

That conclusion is in harmony with the practices and traditions of the Filipino family
where, normally, the daughter is close to the mother who, having breast-fed and reared
her offspring, is always ready to render her counsel and assistance in time of need.
Indeed, when the daughter is in distress or suffers moral or physical pain, she usually
utters the word Inay(Mother) before she invokes the name of the Lord.

Thus, in this case, when Avelino Ordoño, after having raped his daughter Leonora in the
early morning of October 11, 1970, tried to repeat the beastly act in the evening of that
date, Leonora shouted "Mother" and, on hearing that word, Avelino desisted.

That the rape of the daughter by the father, an undeniably abominable and revolting
crime with incestuous implications, positively undermines the connubial relationship, is a
proposition too obvious to require much elucidation.

In Wilkinson vs. People, 282 Pac. 257, it was held that the wife was a competent witness
against the husband in a prosecution for rape committed by the husband against his
stepdaughter, who is the wife's natural daughter because the crime was "an outrage
upon nature in its dearest and tenderest relations as well as a crime against humanity
itself". The court adopted the interpretation that "a criminal action or proceeding for a
crime committed by one against the other" may refer to a crime where the wife is the
individual particularly and directly injured or affected by the crime for which the husband
is being prosecuted (See Dill vs. People, 19 Colo. 469, 475, 36 Pac. 229, 232).

In State vs. Chambers, 87 Iowa 1, 53 N.W. 1090, it was held under the statutory
provision that husband or wife shall in no case be a witness for or against the other,
except in a criminal proceeding for a crime committed by one against the other, that the
wife was competent to testify against the husband in a case where he was prosecuted for
incest committed against his stepdaughter.

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In State vs. Shultz, 177 Iowa 321, 158 N.W. 539, it was held that the wife may testify
against the husband in a case where he was prosecuted for incest committed against
their eleven-year old daughter because incest is a "crime committed against the wife".
(See Owens vs. State, 32 Neb. 167, 49 N.W. 226; Lord vs. State, 23 N.W. 507, 17 Neb.
526; People vs. Segura, 60 Phil. 933).

The trial court did not err in holding that Catalina Ordoño could testify against her
husband, Avelino Ordoño, in the case where he is being tried for having raped their
daughter, Leonora.

PEOPLE V. CASTANEDA
FEB 27, 1979

The act complained of as constituting the crime of Falsification of Public Document is the
forgery by the accused of his wife's signature in a deed of sale, thereby making it appear
therein that said wife consented to the sale of a house and lot belonging to their conjugal
partnership when in fact and in truth she did not.

HELD: It must be noted that had the sale of the said house and lot, and the signing of the
wife's name by her husband in the deed of sale, been made with the consent of the wife,
no crime could have been charged against said husband Clearly, therefore, it is the
husband's breach of his wife's confidence which gave rise to the offense charged. And it
is this same breach of trust which prompted the wife to make the necessary complaint
with the Office of the Provincial Fiscal which, accordingly, filed the aforesaid criminal
case with the Court of First Instance of Pampanga. To rule, therefore, that such criminal
case is not one for a crime committed by one spouse against the other is to advance a
conclusion which completely disregards the factual antecedents of the instant case.

ALVAREZ V. RAMIREZ
OCTOBER 14, 2005

In this case, the husband set fire to the house of his sister in law. Is that covered by the
exception? Remember it has to be direct relatives not collateral and sister is collateral.
Can the wife testify?

HELD: The act of private respondent in setting fire to the house of his sister-in-law Susan
Ramirez, knowing fully well that his wife was there, and in fact with the alleged intent of
injuring the latter, is an act totally alien to the harmony and confidences of marital relation
which the disqualification primarily seeks to protect. The criminal act complained of had
the effect of directly and vitally impairing the conjugal relation. It underscored the fact
that the marital and domestic relations between her and the accused-husband have
become so strained that there is no more harmony, peace or tranquillity to be preserved.

The Supreme Court has held that in such a case, identity is non-existent. In such a
situation, the security and confidences of private life which the law aims to protect are
nothing but ideals which through their absence, merely leave a void in the unhappy
home. (People v. Castañeda, 271 SCRA 504). Thus, there is no longer any reason to
apply the Marital Disqualification Rule.”

It should be stressed that as shown by the records, prior to the commission of the
offense, the relationship between petitioner and his wife was already strained. In fact,
they were separated de facto almost six months before the incident. Indeed, the
evidence and facts presented reveal that the preservation of the marriage between
petitioner and Esperanza is no longer an interest the State aims to protect.

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At this point, it bears emphasis that the State, being interested in laying the truth before
the courts so that the guilty may be punished and the innocent exonerated, must have
the right to offer the direct testimony of Esperanza, even against the objection of the
accused, because (as stated by this Court in Francisco[14]), “it was the latter himself who
gave rise to its necessity.”

QUESTION: What if wala ang wife sa place? Will the ruling of Alvarez be the same?

ANSWER: According to UP Suggested Answers: YES, the wife may testify over the objection of
the husband. The disqualification by reason of marriage has exceptions as where the marital
relations are so strained as there is no more harmony to be preserved. The acts of the husband
eradicate all the major aspect of marital life. On the other hand, the state has an interest in
punishing the guilty and giving justice to the innocent and therefore State must allow testimony of
the wife over the objection of the husband.

RULE ON THE EXAMINATION OF A CHILD WITNESS

Let’s go to the rule on the examination of a child witness, remember in section 21(b) of RC that
“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 are disqualified
from being a witness by reason of immaturity.”

In the case of People vs. Galas Sept 24, 1996, of course the SC had the occasion to say that
the child regardless of age can be a competent witness for as long as the child meets the
following criteria:
1. Capacity of observation
2. Capacity of recollection or remembrance and
3. Capacity to communicate

What do they communicate? Whatever they have observed and remembered.

PRESUMPTION: the child can be a competent witness as long as they can perceive and in
perceiving can make known his perception to others and relating truthfully the facts
relating to which he is examined.

PEOPLE VS. MENDOZA

FEBRUARY 22, 1996,

NOTE: just a background as to the basic American jurisprudence and therefore basic
legal principle on the competency of children to testify and the same must be shown to
the satisfaction of the court.

It is thus clear that any child, regardless of age, can be a competent witness if he can
perceive, and perceiving, can make known his perception to others and of relating
truthfully facts respecting which he is examined. In the 1913 decision inUnited States vs.
Buncad,29 this Court stated:
Professor Wigmore, after referring to the common-law precedents upon this point, says:
“But this much may be taken as settled, that no rule defines any particular age as
conclusive of incapacity; in each instance the capacity of the particular child is to be
investigated.” (Wigmore on Evidence, vol. I, p. 638)30

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While on the same subject, Underhill declares:

§257. Children on the witness stand. - Under the common law, competency of a
child under the age of fourteen years to testify must be shown to the satisfaction of
the court. He is presumptively incompetent, but if he is shown to be competent it is
immaterial how young he may be when he testifies. He is competent if he possesses
mental capacity and memory sufficient to enable him to give a reasonable and
intelligible account of the transaction he has seen, if he understands and has a just
appreciation of the difference between right and wrong, and comprehends the
character, meaning and obligation of an oath. If the witness fulfills these
requirements, it is immaterial as bearing upon his competency that he is unable to
define the oath or to define testimony. In the wise discretion of the court, a child four,
five, six and for such ages as seven, eight, nine, ten, eleven, twelve, thirteen or
fifteen years of age may be shown competent to testify. It may not be said that there
is any particular age at which as a matter of law all children are competent or
incompetent. x x x31

The requirements then of a child’s competency as a witness are the: (a) capacity of
observation, (b) capacity of recollection, and (c) capacity of communication. 32 And in
ascertaining whether a child is of sufficient intelligence according to the foregoing
requirements, it is settled that the trial court is called upon to make such
determination.33 As held in UnitedStates vs. Buncad,34 quoting from Wheeler vs. United
States,35 and reiterated in People vs. Raptus36 and People vs. Libungan:37
The decision of this question rests primarily with the trial judge, who sees the
proposed witness, notices his manner, his apparent possession or lack of
intelligence, and may resort to any examination which will tend to disclose his
capacity and intelligence as well as his understanding of the obligations of an oath.
As many of these matters cannot be photographed into the record, the decision of
the trial judge will not be disturbed on review unless from that which is preserved it
is clear that it was erroneous.38

The trial court has adjudged Paul Michael competent to testify. We agree. A close and
careful examination of the testimony of Paul Michael shows that at the time he testified,
he could be deemed a child of above average intelligence, i.e., capable of giving
responsive answers to the questions asked of him by the trial judge, as well as recalling
events and relating them to such recollections. The initial hesitancy of Paul Michael to
name his father as the author of the crime was sufficiently explained by the trial court as
follows:

The first time Paul Michael was presented as [a] witness, the only thing substantial
he testified on was that his father boxed his mother in the mouth and tied her. On
further questions, he refused to answer anymore. The Court noticed the reason for
such adamant attitude of the witness. His father, the accused, was directly in his
sight and whenever their eyes met, the child could speak no more. The second time
the witness was presented, the private prosecutor covered the child from the
accused. The Court likewise directed the accused to sit farther away thereby placing
the accused out of the direct sight of the witness. As a result, the child was able to
testify freely and extensively without hesitation.39

We defer to such observation and explanation. Indeed, there are certain matters that aid
the trial court in assessing the credibility of a witness which are not available to the
appellate court, such as emphasis, gesture, and the inflection of the voice of the witness.
The trial court had the distinct opportunity to make such observations and to avail of such
aids while Paul Michael was on the witness stand, 40 thusly, we find no reason to
disregard the assessment made by the trial court.

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The accused-appellant’s contention that Paul Michael’s testimony could have

been influenced by the relatives of Gina, who were full of “unwavering anger, hatred,
hostility, resentment, revenge,” more so since the child had been in their custody since
after 22 November 1989, is unacceptable. The charge is nothing but unmitigated
speculation as not a shred of evidence was offered in support thereof. Not even the
rigorous cross-examination Paul Michael underwent dented the probative force of his
testimony; on the contrary, it merely added strength thereto as it elicited nothing less than
the boy’s adherence to truth.

We realize how extremely painful it was for Paul Michael to reveal that it was his father
who burned his mother. He knew that such a revelation could send his father to jail and
thus brand him a son of a killer or a convict. If he did, nevertheless, it was to expose the
truth and give justice to his mother who met an excruciatingly painful death. Verily, “from
the mouths of children we get the truth.” 4

SEC. 6. Competency.— Every child is presumed qualified to be a witness. However, the court
shall conduct a competency examination of a child, motu proprio or on motion of a party, when it
finds that substantial doubt exists regarding the ability of the child to perceive, remember,
communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court.

Now in this section 6 take note that the basic formula is still there that capacity of observation or
the ability of the child to perceive, capacity recollection meaning the ability of the child to
remember, and the capacity communication or the ability to communicate. But this time in section
6 there are more specific requirements of the ability to distinguish truth from falsehood and the
ability to appreciate the duty to tell the truth in court. These are all taken from jurisprudence so
there is really nothing added from doctrinal.

ADMINISTRATIVE MATTER NO. 004-7-SC

By the way, this rule on examination of a child witness is administrative matter no. 004-7-SC
promulgated by the SC on November 21, 2000 and which took effect on December 15, 2000.

Let’s go to Section 1 of the rule:

SECTION 1. Applicability of the Rule— Unless otherwise provided, this 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.

And in relation to this section 1 we have section 32 regarding the applicability of ordinary rules of
court:

SEC. 32. Applicability of ordinary rules.— The provisions of the Rules of Court on deposition,
conditional examination of witnesses, and evidence shall be applied in a suppletory character.

Therefore, the PRIMARY RULE to be applied in the cases child witness is the rule on the
examination of a child witnesses and the rules of evidence shall only be applied suppletorily.

What are the objectives of the rules?

SEC. 2. Objectives.— The objectives of this Rule are to create and maintain an environment that
will allow children to give reliable and complete evidence, minimize trauma to children, encourage
children to testify in legal proceedings, and facilitate the ascertainment of truth.

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OBJECTIVES:
1. Create and maintain an environment that will allow children to give reliable and complete
evidence
2. Minimize trauma to children
3. Encourage children to testify in legal proceedings
4. facilitate the ascertainment of truth

QUESTION: Is it not a fact in saying children will not lie is that correct?

I don’t think so. So I don’t think that just because the witness is a child automatically the
evidence or the testimony of the child would be automatically credible or reliable as found
in section 2. That is why there is a process under the rules on the examination of child
witnesses which would determine the criteria like the ability to distinguish between truth
and falsehood and the ability to appreciate the duty of telling the truth.

REMEMBER: we are also dealing here of victims, children who are victims of heinous crimes
such as rape, physical abuse, excessive chastisement. So that…..

THE RULE INCLUDES THE AVOIDANCE OF USE THE INVASIVE METHODS TO DETERMINE
WON THE CHILD IS SEXUALLY ABUSED

PEOPLE V. BARRING
JANUARY 28, 2002

This Court is disturbed by the method of physical examination done on the seven-year-
old victim. We noticed that in the examiner’s effort to show the existence of abuse, the
examining physician inserted his smallest finger, as shown in the medico-legal report that
the ‘external vaginal orifice admits tip of the examiner's finger.’

It bears to stress that this particular manner of establishing evidence – by determining

the diameter/hymenal opening in rape cases – was a common practice in the past. With
the passage of R.A. 7610, this Court has nonetheless allowed the utilization of the same
kind of evidence in the prosecution of Child Abuse cases. In light however of radical
medical developments and findings, specifically as to the determination of the existence
of child sexual abuse, this Court deems it necessary to firmly adopt a more "child
sensitive" approach in dealing with this specie or genre of crime.

What is important at this point, and we do not hesitate to reiterate, is that forensic
examination – inclusive of physical examination and forensic interview – of sexually
assaulted children [adolescents included] must be conducted with maximum sensitivity to
the young victim’s feelings of vulnerability and embarrassment. Great care must be
observed in order to make the examination less stressful lest they be more traumatic to
the victim than the very assault itself. The value of collecting evidence should always be
weighed against the emotional cost of the procedure and examination of the child.

And let me relate that to section 3 of the rule that the ruling of the SC which is how do you
construe the rules on examination of the child witness:

SEC. 3. Construction of the Rule.— This Rule shall be liberally construed to uphold the best
interests of the child and to promote maximum accommodation of child witnesses without
prejudice to the constitutional rights of the accused.

While the RULE OF THUMB is as to the liberal construction of the rules to uphold the best
interest of the child, an EXCEPTION is when a construction of the rules to favour the child would
also violate the rights of the accused.

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EXAMPLE: Let us suppose the child was raped and because of the traumatic experience of the
child she refuses to undergo a rape kit procedure means a physical examination of the body parts
of the victim to get let us say a pubic hair samples through swabbing so that they can also get a
semen sample discharge during the carnal knowledge.

Now, let us suppose the child will not allow rape kit processes or vaginal swabbing kasi syempre
traumatize ang bata. The accused said, that the only way that I can prove that I am not the one
who rape the child is to show negative evidence that if that semen sample in the found in the child
will not match with my own DNA then I am not guilty.

Question: Does that violate the constitutional right of the accused? Naa ba ana na constitutional
right sa accused?

ANSWER: Of course the accused has the right to secure evidence for his own defense. But that
is possible that there is that conflict between the constitutional right of the accused and the right
of protection granted to child witnesses. And in that case, upon proper invocation that liberal
interpretation will no longer favour the child witness but of course it is without prejudice to the
constitutional rights of the accused.

GENERAL RULE: liberal construction of the rules in favour of the child witness to uphold
the best interest of the child

ONLY EXCEPTION being is that construction liberally in favour of the child would also
violate the rights of the accused.

Now, let us go to section 4 regarding definitions:

SEC. 4. Definitions.—
(a) A “child witness” is any person who at the time of giving testimony is below the age of
eighteen (18) years. In child abuse cases, a child includes one over eighteen (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.

(b) “Child abuse” means physical, psychological, or sexual abuse, and criminal neglect as
defined in Republic Act No. 7610 and other related laws.
(c) “Facilitator” means a person appointed by the court to pose questions to a child.
(d) “Record regarding a child” or “record” means any photograph, videotape, audiotape,
film, handwriting, typewriting, printing, electronic recording, computer data or printout, or
other memorialization, including any court document, pleading, or any copy or
reproduction of any of the foregoing, that contains the name, description, address,
school, or any other personal identifying information about a child or his family and that is
produced or maintained by a public agency, private agency, or individual.

(e) A “guardian ad litem” is a person appointed by the court where the case is pending for a
child who is a victim of, accused of, or a witness to a crime to protect the best interests of
the said child.

(f) A “support person” is a person chosen by the child to accompany him to testify at or
attend a judicial proceeding or deposition to provide emotional support for him.

(g) “Best interests of the child” means the totality of the circumstances and conditions as
are most congenial to the survival, protection, and feelings of security of the child and
most encouraging to his physical, psychological, and emotional development. It also
means the least detrimental available alternative for safeguarding the growth and

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development of the child.

(h) “Developmental level” refers to the specific growth phase in which most individuals are
expected to behave and function in relation to the advancement of their physical, socio-
emotional, cognitive, and moral abilities.

(i) “In-depth investigative interview” or “disclosure interview” is an inquiry or

proceeding conducted by duly trained members of a multidisciplinary team
or representatives of law enforcement or child protective services for the purpose of
determining whether child abuse has been committed.

(a) A “child witness” is any person who at the time of giving testimony is below the age of
eighteen (18) years. In child abuse cases, a child includes one over eighteen (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.

So, mental recantation is included, so the person maybe 35 yrs old but her mind is 13 yrs
old and below he is still considered a child witness under this rule but only with respect
to child abuse cases that is the important modifier there.

Letter be tells you what are this cases of child abuse:

(b) “Child abuse” means physical, psychological, or sexual abuse, and criminal neglect as
defined in Republic Act No. 7610 and other related laws.

Now, can you relate RA 9262? Definitely because it also applies to violence against children not
only to violence against women, so you should refer this child abuse to the definitions under RA
9262 if applicable.

(c) “Facilitator” means a person appointed by the court to pose questions to a child.

We will go to that later kung unsa ng facilitator.

(f) A “support person” is a person chosen by the child to accompany him to testify at or attend a
judicial proceeding or deposition to provide emotional support for him.

(g) “Best interests of the child” means the totality of the circumstances and conditions as are
most congenial to the survival, protection, and feelings of security of the child and most
encouraging to his physical, psychological, and emotional development. It also means the least
detrimental available alternative for safeguarding the growth and development of the child.

Very nice definition of what best interest of the child means in so far as this rule is
concern but again this definition is for the nons or only the sake of definition because
what determines the best interest of the child cannot be define with particularity although
there is already the standard and letter g tells you the minimum standard.

(i) “In-depth investigative interview” or “disclosure interview” is an inquiry or proceeding

conducted by duly trained members of a multidisciplinary team or representatives of law
enforcement or child protective services for the purpose of determining whether child abuse has
been committed.

You know what child abuse is something that goes on unrecorded majority of the cases of
child abuse are unrecorded. Why? Halimbawa kung naa mang-rape na uyoan sa bata or
let us say a wicked stepfather iya ba na ipakita sa tibuok kalibutan? Syempre dili it is a
secret. Like the Bella Flores syndrome, Bella Flores is the stepmother who is cruel. So

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Makita nalng ka ang bata full of bruises the ang bata dili muistorya so pwede
gamiton ni in-depth interview or disclosure interview.

Who are the members here mention in letter i?

1. members of the police,

2. women-children desk,
3. including also the DSWD and
4. all others who have stake in the protection of children from violence.

SEC. 5. Guardian ad litem.—

(a) The court may appoint a guardian ad litem for a child who is a victim of, accused of, or
a witness to a crime to promote the best interests of the child. In making the
appointment, the court shall consider the background of the guardian ad litem and his
familiarity with the judicial process, social service programs, and child development,
giving preference to the parents of the child, if qualified. The guardian ad litem may be
a member of the Philippine Bar. A person who is a witness in any proceeding involving
the child cannot be appointed as a guardian ad litem.

(b) The guardian ad litem:

(1) Shall attend all interviews, depositions, hearings, and trial proceedings in which a
child participates;
(2) Shall make recommendations to the court concerning the welfare of the child;
(3) Shall have access to all reports, evaluations, and records necessary to effectively
advocate for the child, except privileged communications;
(4) Shall marshal and coordinate the delivery of resources and special services to the
child;
(5) Shall explain, in language understandable to the child, all legal proceedings,
including police investigations, in which the child is involved;
(6) Shall assist the child and his family in coping with the emotional effects of crime
and subsequent criminal or non-criminal proceedings in which the child is involved;
(7) May remain with the child while the child waits to testify;
(8) May interview witnesses; and
(9) May request additional examinations by medical or mental health professionals if
there is a compelling need therefor.

(c) The guardian ad litem shall be notified of all proceedings but shall not participate in the
trial. However, he may file motions pursuant to sections 9, 10, 25, 26, 27 and 31(c). If
the guardian ad litem is a lawyer, he may object during trial that questions asked of the
child are not appropriate to his developmental level.

(d) The guardian ad litem may communicate concerns regarding the child to the court
through an officer of the court designated for that purpose.

(e) The guardian ad litem shall not testify in any proceeding concerning any information,
statement, or opinion received from the child in the course of serving as a guardian ad
litem, unless the court finds it necessary to promote the best interests of the child.

(f) The guardian ad litem shall be presumed to have acted in good faith in compliance with
his duties described in sub-section (b).

“The court may appoint a guardian ad litem for a child who is a victim of, accused of, or a witness
to a crime to promote the best interests of the child. In making the appointment, the court shall
consider the background of the guardian ad litem and his familiarity with the judicial process,

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social service programs, and child development, giving preference to the parents of
the child, if qualified.”

So dili diay ka automatic na kung ikaw ang ginikanan dili ka automatic na guardian
ad litem sa child witness or the accused child or the child victim naa lng
preference.

Why? Because this rule wala ni nagpaliba ning rule, it also understand the possible
situation that the supposed guardian ad litem, the natural parent of the child, kana bitaw
muconsente how many times I have heard ad happen like ang bata girape let us say the
step father or the father himself, pagkabalo sa nanay walay gibuhat kasi mahadlok sa
bana or mahadlok na kung ipakulong ang bana wala nay kaonon ang pamilya, or
mahadlok ug gubot or samok.

So the natural parent may not be the person who can protect the best interest of the child
that is the reason why only preference is given not exclusive.

The guardian ad litem may be a member of the Philippine Bar.

REASON FOR THE RULE: Why is it that we now give another duty to the member of the
Philippine Bar? Why do you have to say that the member of the Philippine Bar may be
the guardian ad litem? Why there is a special mention of lawyers here, why not a doctor
or an engineer, or director whatever to the exclusion of other professions? Because of
section 5 c.

What does section 5c provides: (c) The guardian ad litem shall be notified of all
proceedings but shall not participate in the trial. However, he may file motions pursuant to
sections 9, 10, 25, 26, 27 and 31(c). If the guardian ad litem is a lawyer, he may object
during trial that questions asked of the child are not appropriate to his developmental
level.

These are the 2 related provisions regarding guardian ad litem being the member of the
Philippine bar. (Section 4 and section 5 (c) )

To my mind the reason is still insufficient, so you mean to say that if the guardian ad litem
is not a lawyer and the questions asked to the child are not appropriate to his
developmental level that guardian ad litem cannot object? Diba so it is still not sufficient
reasoning. Just remember that according to the rules but that guardian ad litem may be a
member of the bar.

Now this last sentence in letter c: he may object during trial that questions asked of the child
are not appropriate to his developmental level”.

Meaning to say that is the only objection during the trial? What about the interest of the
witness to be spared to be detained longer than the interest of justice requires? or kana
bitaw sa palabas na objection your honor the counsel is “badgering” the witness. You
know what badgering is? Nagaphilosophized ka with the witness imuha ginaharass ang
witness by the manner of questioning the witness. Is that the only ground for objection? It
should not be only limited to because there are lots of rights of the witnesses and not
only the rights of the child witnesses.

EFFECT IF COURT FAILS TO APPOINT A GUARDIAN AD LITEM: it is a ground for

administrative liability.

OBEDENCIO V. MURILLO

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[A.M. No. RTJ-03-1753. February 5, 2004]

Licel was only 14 years old, definitely a minor, on May 22, 2001, when she was
presented before respondent’s sala to affirm the execution of her affidavit of
desistance. This being the case, said affidavit should have been executed with the
concurrence of her parents. Licel could not validly give consent to an affidavit of
desistance, for a minor is incompetent to execute such an instrument. Yet,
notwithstanding the absence of her parents’ conformity to the affidavit of desistance and
lack of notice to them or their lawyer of the scheduled hearing, respondent judge
dismissed the criminal case. Truly, he should have exercised more prudence and caution
instead of perfunctorily dismissing the case, considering the nature and gravity of the
offense charged.

At the very least, herein respondent should have appointed a guardian ad litem for
Licel, to protect her welfare and interest, instead of hastily dismissing the rape case. The
Rule on Examination of a Child Witness, [14] which took effect on December 15, 2000,
governs the examination of child witnesses who are victims of, accused of, or witnesses
to a crime. In the absence or incapacity of the parents to be the guardian, Section 5 (a)
[15]
of said rule provides that the court may appoint a guardian ad litem to promote the
best interests of the child. This rule was already in effect when respondent judge
dismissed the rape case on May 22, 2001.

DUTIES OF GUARDIAN AD LITEM

(b) The guardian ad litem:
(1) Shall attend all interviews, depositions, hearings, and trial proceedings in which a
child participates;

NOTE: While it is the privilege of the guardian ad litem to be notified in all

hearings, proceedings, HE IS NOT CONSIDERED A PARTY ENTITLED TO
PARTICIPATE IN THE CASE.
However, pursuant to section 22, he may file motions such as those under
Section 9, 10, 25, 26, 27 & 31(c):
Section 9 – Is for the appointment of an interpreter.
Section 10 – a motion may be filed for the appointment of a support person.
Section 25 – a motion for an order that the testimony of the child be taken in a
room outside the courtroom and be televised in the courtroom by live link
television.
murag skype that is live link. Example an TV dri unya kwarto ang bata
ra ug iyang support person or kung kinsa ba to gi-allow sa court na
ubanan ang bata. So ang bata naa didto muatubang ug camera
Makita nya kung unsa sitwasyon sa courtroom as if naglingkod sya sa
witness stand and then sa courtroom pud adunay TV na Makita pud
ang gnabuhat sa bata.

Now why is it important to file a motion for live link television? Because
again you have to determine what would be the best interest of the
child. Kung ang bata mahadlok sa lawyer or ma-intimidate ba.

Why is it also important that in the courtroom makita pud kung unsa
ginabuhat sa bata? This is to prevent coaching. Kay kung dili nimo
mkita ang dagway sa bata sa courtroom, if there is only a one way link
not a two way link, kc mkita sa bata ang gapangutana nya pero dli
Makita ang bata sa courtroom, pwede nila ma-coach ang bata.
Section 26 – a motion that screens, one-way mirrors, and other devices be
placed in the courtroom in such a manner cannot see the accused in order to

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prevent trauma.
Section 27 – motion for an order that a deposition be taken on the testimony of
the child and that it be recorded and preserved on video
That’s an additional requirement presentation of a video tape because
in depositions, as we learned in rule 23 of the RC under the modes of
discovery, there is no ‘preservation of video’ there but only depositions.
Section 31 (c) – to issue additional orders to protect the privacy of the child.

(2) Shall make recommendations to the court concerning the welfare of the child;
(3) Shall have access to all reports, evaluations, and records necessary to effectively
advocate for the child, except privileged communications;
(4) Shall marshal and coordinate the delivery of resources and special services to the
child;
(5) Shall explain, in language understandable to the child, all legal proceedings,
including police investigations, in which the child is involved;
(6) Shall assist the child and his family in coping with the emotional effects of crime
and subsequent criminal or non-criminal proceedings in which the child is involved;
(7) May remain with the child while the child waits to testify;
(8) May interview witnesses; and
(9) May request additional examinations by medical or mental health professionals if
there is a compelling need therefore.

(d) The guardian ad litem may communicate concerns regarding the child to the court through an
officer of the court designated for that purpose.

(e) The guardian ad litem shall not testify in any proceeding concerning any information,
statement, or opinion received from the child in the course of serving as a guardian ad litem,
unless the court finds it necessary to promote the best interests of the child.

So letter e is a GUARDIANSHIP PRIVILEGE, privilege between a guardian and a ward.

(f) The guardian ad litem shall be presumed to have acted in good faith in compliance with his
duties described in sub-section (b).

This is a presumption of regularity in the performance of the duties a guardian ad litem.

SEC. 6. Competency— Every child is presumed qualified to be a witness. However, the court
shall conduct a competency examination of a child, motu proprio or on motion of a party, when it
finds that substantial doubt exists regarding the ability of the child to perceive, remember,
communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court.

(a) 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.
(b) Burden of proof— To rebut the presumption of competence enjoyed by a child, the
burden of proof lies on the party challenging his competence.
(c) Persons allowed at competency examination.—Only the following are allowed to
attend a competency examination:
(1) The judge and necessary court personnel;
(2) The counsel for the parties;
(3) The guardian ad litem;
(4) One or more support persons for the child; and
(5) The defendant, unless the court determines that competence can be fully evaluated
in his absence.
(d) Conduct of examination.— Examination of a child as to his competence shall be

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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.
(e) 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.
(f) Continuing duty to assess competence.— The court has the duty of continuously
assessing the competence of the child throughout his testimony.

(a) 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.

So before you can ask for a competency examination you must present proof for the
necessity of that examination. For example, what is your proof that the competency
examination is required? What is the possible proof? May be the previous conduct of the
child, nga ang bata wla capacity to tell the truth, or ang bata bakakon,etc. So you have to
present proof.

(b) Burden of proof— To rebut the presumption of competence enjoyed by a child, the burden
of proof lies on the party challenging his competence.

“He who alleges bears the burden of proof” So if you want to prove one thing, you the
burden of proving it. Same thing here because of the presumption of competence; the
burden of proof is on the person who challenges such competence.

PEOPLE V. GREGORIO HERMOSA

SEPTEMBER 7, 2001

We should not take Macuibelle’s testimony lightly simply because she was a
mere child when she witnessed the incident and when she gave her testimony in
court. There is no showing that her mental maturity rendered her incapable of
testifying and of relating the incident truthfully. Indeed, the time when we
degrade a child witness testimony is now passé.

In the new Child Witness Rule,every child is presumed qualified to be a

witness. To rebut this presumption, the burden of proof lies on the party
challenging the child’s competence. Only when substantial doubt exists
regarding the ability of the child to perceive, remember, communicate, distinguish
truth from falsehood, or appreciate the duty to tell the truth in court will the
court, motu proprio or on motion of a party, conduct a competency examination
of a child

(c) Persons allowed at competency examination.— Only the following are allowed to attend a
competency examination:

(1) The judge and necessary court personnel;

Including the stenographer, the court interpreter ang uban meron nana kay mudagan ang
trial maski wla ng mga court employees nga na ang importante lng ang stenographer and
interpreter mao ran a kailangan ang uban excluded na sa competency examination

(2) The counsel for the parties;

(3) The guardian ad litem;

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(4) One or more support persons for the child; and

(5) The defendant, unless the court determines that competence can be fully evaluated in
his absence.

(d) 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.

Sulat nimo ang imuha questions and then submit the questions to the judge, the judge
may choose to ask or not to ask the questions sa bata, so meaning there is no direct
questioning from a counsel direct to the child but ang judge ra ang pwede mangutana
and mind you this is not being followed kay ang mga counsel man japon during
competency examination, why I can say this that is not being followed? 1 st, I was there
during competency examination and I am not a counsel to any party to a case. 2 nd
counsel asking questions directly to the child when in fact he should be silent because he
is not allowed to ask questions directly to the child. So meaning this is not strictly
followed.

Pwede pa itext nalng nimo ang questions sa judge? Pwede siguro wala man nakabutang
dri na bawal magtext.

(e) 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.

This is with respect to competence examination lang. You should not be discussing about
the merit of the case and the judge should not ask questions directly relating to the merits
of the case bawal.

(f) Continuing duty to assess competence.— The court has the duty of continuously
assessing the competence of the child throughout his testimony.

SEC. 7. Oath or affirmation.— Before testifying, a child shall take an oath or affirmation to tell
the truth.

PEOPLE V. ALMA BISDA

JULY 17, 2003 GR NO. 140895

An oath is defined as an outward pledge, given by the person taking it that his
attestation or promise is made under an immediate sense of his responsibility to God.
The object of the rule is to affect the conscience of the witness and thus compel him to
speak the truth, and also to lay him open to punishment for perjury in case he willfully
falsifies. A witness must be sensible to the obligation of an oath before he can be
permitted to testify. It is not, however, essential that he knows how he will be punished if
he testify falsely.

Under modem statutes, a person is not disqualified as a witness simply because he

is unable to tell the nature of the oath administered to a witness. In order that one may be
competent as a witness, it is not necessary that he has a definite knowledge of the
difference between his duty to tell the truth after being sworn and before, or that he be
able to state it, but it is necessary that he be conscious that there is a difference. It
cannot be argued that simply because a child witness is not examined on the nature of
the oath and the need for her to tell the whole truth, the competency of the witness and
the truth of her testimony are impaired. If a party against whom a witness is presented
believes that the witness is incompetent or is not aware of his obligation and

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responsibility to tell the truth and the consequence of him testifying falsely,
such party may pray for leave to conduct a voire dire examination on such witness to
test his competency.[59] The court may motu proprio conduct the voir dire examination.
In United States v. Buncad[ this Court held that when a child of tender age is presented
as a witness, it is the duty of the judge to examine the child to determine his competency.
In Republic v. Court of Appeals, this Court held that:

[W]hen a witness is produced, it is a right and privilege accorded to the adverse

party to object to his examination on the ground of incompetency to testify. If a party
knows before trial that a witness is incompetent, objection must be made before trial
that a witness is incompetent, objection must be made before he has given any
testimony; if the incompetency appears on the trial, it must be interposed as soon as
it becomes apparent.[62]

The competency of a person to take the prescribed oath is a question for the trial court to
decide.[63]

If a party admits proof to be taken in a case without an oath, after the testimony has
been acted upon by the court, and made the basis of a judgment, such party can no
longer object to the admissibility of the said testimony. [64] He is estopped from raising the
issue in the appellate court. This was the ruling of this Court in Republic v. Court of
Appeals,[65] thus:
Simply put, any objection to the admissibility of evidence should be made at the time
such evidence is offered or as soon thereafter as the objection to its admissibility
becomes apparent, otherwise the objection will be considered waived and such
evidence will form part of the records of the case as competent and admissible
evidence. The failure of petitioner to interpose a timely objection to the presentation
of Divinaflor’s testimony results in the waiver of any objection to the admissibility
thereof and he is therefore barred from raising said issue on appeal.

In this case, Angela was six years old when she testified. [66] She took an oath to “tell the
truth, the whole truth and nothing but the truth” before she testified on direct examination.
There was nary a whimper of protest or objection on the part of the appellants to
Angela’s competence as a witness and the prosecution’s failure to propound questions to
determine whether Angela understood her obligation and responsibility of telling the truth
respecting the matter of her testimony before the court. The appellants did not even
bother requesting the trial court for leave to conduct a voir dire examination of Angela.
After the prosecution terminated its direct examination, the appellants thereafter cross-
examined Angela extensively and intensively on the matter of her testimony on direct
examination. It was only in this Court that the appellants raised the matter for the first
time, that there was failure on the part of the prosecution to examine Angela on the
nature of her oath, and to ascertain whether she had the capacity to distinguish right from
wrong. It is too late in the day for the appellants to raise the issue.

The determination of the competence and capability of a child as a witness rests

primarily with the trial judge.[67] The trial court correctly found Angela a competent witness
and her testimony entitled to full probative weight. Any child regardless of age, can be a
competent witness if she can perceive and perceiving, can make known to others, and
that she is capable of relating truthfully facts for which she is examined. [68]

In People v. Mendiola,[69] this Court found the six-year-old victim competent and her
testimony credible. Also in Dulla v. Court of Appeals,[70] this Court gave credence to the
testimony of a three-year-old victim. It has been the consistent ruling of the Court that the
findings of facts of the trial court, its calibration of the testimonies of witnesses and its
assessment of the probative weight thereof, as well as its conclusions anchored on said
findings are accorded by the appellate courts high respect if not conclusive effect absent

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clear and convincing evidence that the trial court ignored, misconstrued, or
misinterpreted cogent facts and circumstances which if considered warrants a reversal or
modification of the outcome of the case. [71] In this case, the Court finds no basis to
deviate from the findings and conclusions of the trial court on the competency of Angela,
and the probative weight of her testimony.

Appellants must come to grips with case law that testimonies of child victims are
given full weight and credit. The testimony of children of sound mind is likewise to be
more correct and truthful than that of older persons. [72]

In People vs. Alba,[73] this Court ruled that children of sound mind are likely to be
more observant of incidents which take place within their view than older persons, and
their testimonies are likely more correct in detail than that of older persons. Angela was
barely six years old when she testified. Considering her tender years, innocent and
guileless, it is incredible that Angela would testify falsely that the appellants took her from
the school through threats and detained her in the “dirty house” for five days.

In People v. Dela Cruz,[74] this Court also ruled that ample margin of error
and understanding should be accorded to young witnesses who, much more than adults,
would be gripped with tension due to the novelty and the experience in testifying before
the trial court.

REMEMBER:

VOIRE DIRE is not only limited to child witnesses. It is a preliminary examination of

prospective witnesses under oath to determine their competence or suitability as
witnesses.

So, this is not limited only to child witnesses. Although in the Philippines it is for child
witnesses.

Question: asa gikan ning voire dire?

A preliminary examination of people to determine their competence or suitability, is there

a similar process here? Yes, and that would be the process of jury qualification.

In the US if you are called for a jury duty, dili automatic na pagdawat nimo sa summons
sa imuha na you would be named as a juror in this court you have to pack your bags
because it would take a long time or dli buot pagpasabot na nasummonan ka as a juror
na daun ka, the counsel and counsel may chose if they believe na kaning juror na ni bias
he is not going to be part of the jury. Until such time that they will come up with a certain
number of jurors whom both parties do not object to.

PEOPLE V. MISCALA
SEPTEMBER 27, 1991

The complainant's detailed and straightforward narration of how she had been raped
bears earmarks of credibility.
Even if the complainant's testimony is uncorroborated, it is enough to convict the
accused.
For the uncorroborated testimony of the complainant to suffice, her competence as a
witness must be established in the trial court.

xxx xxx xxx

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The evidentiary rule is that in crimes against chastity, the testimony of the
injured woman should not be received with precipitate credulity, and when the conviction
depends at any vital point upon her uncorroborated testimony, it should not he accepted
unless her sincerity and candor are free from suspicion. 16

In the case at bar, the records show that the young victim complainant-witness had been
properly placed in voir dire.
The trial judge questioned the witness and complainant victim before she gave her
testimony on the bestial assault her person.

Voir dire literally means to speak the truth, and denotes American jurisprudence,
preliminary examination under oath of prospective jurors. The examination is conducted
to determine the competency or qualifications of the witness in case it objected to.

When the court subjects the witness to voir dire, the co reminds him or her about the
consequences of the truth. While the court is satisfied that the influence of fear or hope
has b ruled out, then the confession of the witness can be deem voluntary. In the case at
bar, the requisites of voir dire have been met.

COMMENT: So this a situation where in the process of voire dire the sole witness of the
prosecution is deemed competent which led to the prosecution of the accused for the crime of
rape. So, pwede diay maski isa r aka witness, if there is a doubt as to the competency of the
witness go to voire dire is the voire dire is satisfied you have to convict if it is not satisfied you
have no choice also but to convict because there is only one testimony the uncorroborated
testimony of the victim.

Now how is the examination of a child witness done?

SEC. 8. 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.

The examination of a child witness presented in a hearing or any proceeding shall be done
in open court.

EXCEPTIONS:
1. Unless of course it covered by the exceptions like which allows live link television, taking
of deposition and so on.
2. 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.

This is taken in the rules of court which will go to later on how to examine the witness so it is
given orally.

Is there a possibility that a testimony is not done orally?

YES, EITHER WHEN THE WITNESS IS INCAPACITATED TO SPEAK OR THE

QUESTION CALLS FOR A DIFFERENT MANNER OF ANSWERING.

For example you are ask, kng imu Makita tong akusado dri sa korte palihug tudlo sa
iyaha. Now it calls for a different answer the answer here will be given in the means of
gestures.

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2nd paragraph: 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.

So there are other modes of testimony.

Then you have section 9 which deals for an interpreter of the child. When will the interpreter
employed.

SEC. 9. Interpreter for child.—

(a) When a child does not understand the English or Filipino language or is unable to
communicate in said languages due to his developmental level, fear, shyness,
disability, or other similar reason, an interpreter whom the child can understand and
who understands the child may be appointed by the court,motu proprio or upon motion,
to interpret for the child.

(b) If a witness or member of the family of the child is the only person who can serve as an
interpreter for the child, he shall not be disqualified and may serve as the interpreter of
the child. The interpreter, however, who is also a witness, shall testify ahead of the
child.

(c) An interpreter shall take an oath or affirmation to make a true and accurate
interpretation.

WHEN INTERPRETER IS NEEDED

(a) When a child does not understand the English or Filipino language or is unable to
communicate in said languages due to his developmental level, fear, shyness, disability, or other
similar reason, an interpreter whom the child can understand and who understands the child may
be appointed by the court,motu proprio or upon motion, to interpret for the child.

Because you have to remember that there are certain times na ang development sa usa
aka bata may not allow him to communicate freely and properly in the language that he is
accustomed to.

IF WITNESS OR MEMBER OF FAMILY IS THE ONLY PERSON WHO CAN BE THE

INTERPRETER

(b) If a witness or member of the family of the child is the only person who can serve as an
interpreter for the child, he shall not be disqualified and may serve as the interpreter of the child.
The interpreter, however, who is also a witness, shall testify ahead of the child.

So, look at the innovation of the law here, there is a child witness who may not be able to
communicate properly and only the member of the family can understand. But there is a
danger that that member of the child’s family who will interpret for the child will probably
fabricate the testimony of the chil kay sya ra gud kasabot. So, if he be so allowed, he
should TESTIFY AHEAD OF THE HCIL.

What is the PURPOSE why the interpreter who is the member of the child’s family will be
presented ahead of the child witness?
a. It is in letter (c) An interpreter shall take an oath or affirmation to make a true and
accurate interpretation.
b. And also if you are the opposing counsel you need to cross examine that interpreter
diba? You need to know if she is the only person who can really interpret the child
because it is possible that other people can interpret the child. However, in this case,

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you are limited to one person so it may be prone to fabrication. This is why you need
to cross-examine.

Then you have section 10 which is another innovation in the Rules.

SEC. 10. Facilitator to pose questions to child.—

(a) The court may, motu proprio or upon motion, appoint a facilitator if it determines that
the child is unable to understand or respond to questions asked. The facilitator may be
a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious
leader, parent, or relative.

(b) If the court appoints a facilitator, the respective counsels for the parties shall pose
questions to the child only through the facilitator. The questions shall either be in the
words used by counsel or, if the child is not likely to understand the same, in words that
are comprehensible to the child and which convey the meaning intended by counsel.

(c) The facilitator shall take an oath or affirmation to pose questions to the child according
to the meaning intended by counsel.

(a) The court may, motu proprio or upon motion, appoint a facilitator if it determines that the child
is unable to understand or respond to questions asked. The facilitator may be a child
psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent, or
relative.

So in letter a, the choices are broader for facilitator.

(b) If the court appoints a facilitator, the respective counsels for the parties shall pose questions
to the child only through the facilitator. The questions shall either be in the words used by
counsel or, if the child is not likely to understand the same, in words that are comprehensible to
the child and which convey the meaning intended by counsel.

So in letter b, kung naa kay pangutana ipaagi sa sa facilitator and the facilitator will do
what he is appointed to do and that is to facilitate because that is what the name implies
to facilitate. You are between sa is aka tao na mangutana and sa usa aka bata na
mutubag because of the inability of the child to respond properly to the question that was
asked.

How should the facilitator ask questions?

The questions shall either be in the words used by counsel or, if the child is not likely to
understand the same, in words that are comprehensible to the child and which convey
the meaning intended by counsel.

So here there is a similarity between an interpreter and facilitator  their duty is to make
the child understand and to tell the court what the child is saying.

(c) The facilitator shall take an oath or affirmation to pose questions to the child according to the
meaning intended by counsel.

So that is the similarity between the interpreter and the facilitator.

QUESTION: What makes an interpreter different from facilitator when in fact they performed
actually the same functions?

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The RULE is to make the child understand the question being asked and make the
court understand the answer to the question being asked.

DISTINCTION BETWEEN INTERPRETER AND FACILITATOR

DIFFERENCE INTERPRETER FACILITATOR

When needed When the child does not needed when the child is
understand the language or is unable to understand or
unable to communicate in such respond to the question asked
languages English and by the judge.
Philippines dialects
Meaning, here there is really
no problem with
communication, there is really
no problem as to WON the
child understands English or
Filipino; The problem is that
despite the fact a ang bata
mkasabot sa mga languages
nga na he does not know how
to answer that. See? The
questions themselves are the
subject not the language in
which the questions are
couched.
Qualification Purely linguistic Not linguistic but special
qualifications ; it can either be
because of relationship
(mother), training (such as in
the case of social workers) or
expertise (i.e. child
psychologists)
Duty to make a true and accurate to pose a questions to the child
interpretation according to the meaning
intended by counsel

ILLUSTRATION OF INTERPRETER’S DUTY:

Unsa ba ning process of interpretation, how does this happen? Kana ba ang imuha witness, I
mean ordinary witness (we are not talking of a child witness anymore the witness here in this
example would be of age) but the problem with most witnesses are they are not really expected
to understand English language.

Unsa mahitabo ana? Counsel will ask questions like

COUNSEL: “where were you in that night in question at 9PM”.

INTERPRETER: Diin ka katong nga nahitbo ang krimen?
(Is it a literal translation? It is not, because it is very difficult without loss of time to make a
very accurate word for word translation and it could be that the literal translation would be
really wrong.
WITNESS: Naa ko sa balay
INTERPRETER: I’m at home your honor.
(So that is how it will interpret)

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But in actual practice, if you look in the transcript of the stenographic notes it was
already translated into English. So you have to be very careful in this type of cases because there
is a possibility na mali ang translation sa stenographic notes so you read the stenographic notes
because for all you know testimony when translated actually professes guilt despite the fact it was
intended to mean innocence so you have to really inspect.

Now, here is another innovation and the 3rd specie of person under the rule on examination of
child witnesses would be SUPPORT PERSONS.

SEC. 11. Support persons.—

(a) A child testifying at a judicial proceeding or making a deposition shall have the
right to be accompanied by one or two persons of his own choosing to provide
him emotional support.
(1) Both support persons shall remain within the view of the child during his
testimony.
(2) One of the support persons may accompany the child to the witness stand,
provided the support person does not completely obscure the child from the
view of the opposing party, judge, or hearing officer.
(3) The court may allow the support person to hold the hand of the child or take
other appropriate steps to provide emotional support to the child in the
course of the proceedings.
(4) The court shall instruct the support persons not to prompt, sway, or influence
the child during his testimony.
(b) If the support person chosen by the child is also a witness, the court may
disapprove the choice if it is sufficiently established that the attendance of the
support person during the testimony of the child would pose a substantial risk of
influencing or affecting the content of the testimony of the child.
If the support person who is also a witness is allowed by the court, his testimony shall be
presented ahead of the testimony of the child.

(1) Both support persons shall remain within the view of the child during his testimony.
Ordinarily bawal ni, kana bitaw your honor my witness is of legal aid wishes the support of the
support persons it could be allowed because it is not only child witnesses who needs the
support of the support persons there are certain witnesses how cannot testify unless there
are certain person who would accompany him/her. This is usually true to female witnesses 
usually there husband, it is either maulaw or mahadlok.

(2) One of the support persons may accompany the child to the witness stand, provided the
support person does not completely obscure the child from the view of the opposing party, judge,
or hearing officer.
Remember the importance of why the testimony is made in the open court because the judge
as well as the parties must be able to observe of what is known as demeanor evidence. What
is demeanor evidence? Katong pagtestify nya unsa man sya was the witness to answer the
question or was the witness had to think for a long time before he/she answers the question,
was he invasive, was he sweating at the time or did the witness cries when was presented
this are demeanor evidence. The demeanor evidence is very important for the judge because
again when the judge decides the case he will look at the TSN so that he will remember the
testimony. So how does the court will know demeanor evidence? Usually the court will take
notes while the witness is testifying regarding the demeanor of the witness.

(4) The court shall instruct the support persons not to prompt, sway, or influence the child during
his testimony.

The support person is just there to provide emotional support not to coach the witness.

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(c) If the support person chosen by the child is also a witness, the court may
disapprove the choice if it is sufficiently established that the attendance of the support person
during the testimony of the child would pose a substantial risk of influencing or affecting the
content of the testimony of the child.

EXCLUSION OF WITNESSES This is similar to ordinary rules, there is what we called

exclusion of witnesses. If you are the intended witness and there are also other witnesses
present in court you can actually move the exclusion of these witnesses.

Meaning, at the time na ginahear pa ang kaso or gnadirect examination ang witness, all other
witness should not be able to hear so pagawason na sila sa korte because the court may
become paranoid that basig unsa iingon atong witness na ipresent na mao sad iingon sa
uban so mag-collusion na ilang testimony karon or mahibal-an na nila sa pikas counsel kung
gi-unsa pagexamine sa pikas counsel ang witness.

But to my mind kaning exclusion, wala ni sya effect, does it stop me when my witness is
excluded to confer with witnesses after the trial? No. I can even ask for a copy of the
stenographic notes.

I actually apply this rule on exclusion to one of my cases, when my client will testify as to
sensitive matter and she said that atty. maulaw man ko mutestify daghan man tao, so I move
for the exclusion not only of the other witnesses but everybody but the other lawyers stayed
because anyway the lawyers are not tsismoso . Really?  So that what happens? so I was
able to apply that.

(c) If the support person who is also a witness is allowed by the court, his testimony shall be
presented ahead of the testimony of the child.
So same rational with respect to the interpreter who will be examine ahead of the child
witness. So that he can be cross examine so the credibility of the support person could also
be tested. And in fact whatever the testimony of the support person basin madisqualify sya as
a support person.

SEC. 12. Waiting area for child witnesses.— The courts are encouraged to provide a waiting
area for children that is separate from waiting areas used by other persons. The waiting area for
children should be furnished so as to make a child comfortable.
This is merely encouraged, because this is an added expense. What the law really says that
would be a play area na mgdula2x ang bata or take a nap so similar to nursery. What is the
possible comfort place in the court? It could be the chamber of the judge, the child is alone can
rest and take a nap.

SEC. 13. Courtroom environment.— To create a more comfortable environment for the child,
the court may, in its discretion, direct and supervise the location, movement and deportment of all
persons in the courtroom including the parties, their counsel, child, witnesses, support persons,
guardian ad litem, facilitator, and court personnel. The child may be allowed to testify from a
place other than the witness chair. The witness chair or other place from which the child testifies
may be turned to facilitate his testimony but the opposing party and his counsel must have a
frontal or profile view of the child during the testimony of the child. The witness chair or other
place from which the child testifies may also be rearranged to allow the child to see the opposing
party and his counsel, if he chooses to look at them, without turning his body or leaving the
witness stand. The judge need not wear his judicial robe.

Nothing in this section or any other provision of law, except official in-court identification
provisions, shall be construed to require a child to look at the accused.

Accommodations for the child under this section need not be supported by a finding of trauma to

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the child.

SEC. 14. Testimony during appropriate hours.— The court may order that the testimony of the
child should be taken during a time of day when the child is well-rested.

When is a child considered to be well rested? In the morning bag-o lang mata or inig kahapon
when children is supposed to be taking naps; so the best time for the child to testify kana bitaw
nga well rested jud ang bata and that would be after taking the nap in the afternoon; at least by
my experience ha. In the morning saputon usually ang bata so this should be better defined the
SC so that the child would be in proper disposition in giving testimony.

SEC. 15. Recess during testimony.— The child may be allowed reasonable periods of relief
while undergoing direct, cross, re-direct, and re-cross examinations as often as necessary
depending on his developmental level.

So again how the law is understanding; Everything that can be provided the child and to facilitate
the testimony is given.

SEC. 16. Testimonial aids.— The court shall permit a child to use dolls, anatomically-correct
dolls, puppets, drawings, mannequins, or any other appropriate demonstrative device to assist
him in his testimony.

For example the child is victimized by rape, so the question may be would like asa man
ka gihilabtan itudlo sa parts sa doll nga ni but of course the doll must be anatomically
correct.

Now I have a problem with the last phrase “any other appropriate demonstrative device to
assist him in his testimony.” Unsa muask ka na unsa iya gitusok sa imu ing-ani bah? 
dba? So the law should be properly delineated bah kung unsa ang appropriate device.

SEC. 17. Emotional security item.— While testifying, a child shall be allowed to have an item of
his own choosing such as a blanket, toy, or doll.

In psychology, usually the toy is the favourite toy, ang blanket man gud is a device use to
hide so possible ang bata kana bitaw tungod sa kahadlok nya mutago pro pwede
moproceed iyang testimony if there is no objection, so pwede xa mgtago in the
meantime. So what about toy? Usually favourite toy ni xa, because in evokes happy
memories of a child. What about the doll? Because it is the most common toy ang most
readily accessible, ing-ani ha tanan bata whether datu man or pobre aduna jud manika
mgvary lang kung unsa kamahal.

EFFECT OF BLATANT INSENSIBILTY TO A CHILD VICTIM: the judge can be subject to an

administrative liability

GENIL V. JUDGE RIVERA

JANUARY 23, 2006

Respondent judge displayed blatant insensitivity to the child victim. He allowed the
defense counsel to cross-examine the child witness and her mother which caused them
extreme humiliation and embarrassment. xxx Parties cannot be subjected to direct
examination or cross-examination. Questions or issues that may arise during the
investigation should be addressed to the investigating judge who should propound the
same to the party concerned.

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Noteworthy is that the Rule on Examination of a Child Witness (A.M. No. 004-07-SC 21
November 2000) does not permit a defense counsel to even approach a child who is
testifying if it appears that the child is fearful of or intimidated by the counsel. xxx Neither
does the Rule require a manifestation from the child or her mother to exclude the public
from the hearing. The court may motu proprio exclude the public from the courtroom to
protect the right to privacy of the child; if requiring the child to testify in open court would
cause psychological harm to him; if it would hinder the ascertainment of truth or result in
his inability to effectively communicate due to embarrassment, fear or timidity; and if the
evidence to be produced is of such character as to be offensive to decency or public
morals.

SEC. 19. Mode of questioning.— The court shall exercise control over the questioning of
children so as to (1) facilitate the ascertainment of the truth, (2) ensure that questions are stated
in a form appropriate to the developmental level of the child, (3) protect children from harassment
or undue embarrassment, and (4) avoid waste of time.

The court may allow the child witness to testify in a narrative form.

In usual evidentiary procedure you cannot be allowed to testify in a narrative form, in other words
a question must be ask would be ask which would elicit as a general rule would be one fact, like
where were you in the night in question? What are you doing then? Something like that, so one
question answered by specific fact. That is why it is also not allowed for counsel to ask a leading
question or question which suggest to the witness the answer already, like is it not a fact that you
were cooking at the time, so that is leading. The question should be who, why, where, how.

HYPOTHETICAL SITUATION: let us say the question of counsel is what did you do yesterday?
Well. I woke up I peed, I brush my teeth then after breakfast I wash my teeth again then I have to
work, that is a narrative form one question could elicit a lot of facts that is not allowed but with
respect to a child witness that is allowed the opposing counsel cannot do anything about it.

GENERAL RULE is the witness cannot testify in the narrative form, which is the general
rule-- one question one fact;

EXCEPTIONS:
1. Child witness.
2. Chief justice corona. That is why I said na unsa ni xa child witness?  He is a CJ in the
1st place he know this he should not be allowed to testify in a narrative form. He was
presented as a witness not to deliver a privilege testimony. Tanawa unsa nahitabo?

SEC. 20. Leading questions.— The court may allow leading questions in all stages of
examination of a child if the same will further the interests of justice.

Again general rule leading questions subject to exception. Leading question like it can be
answered by yes or no. As part of the exception in the ordinary rules of evidence, leading
questions could be ask in the cross-examination, ok lang na xa kasi you are just testing the
credibility and that is how usually debating skills will help you. But with respect to children pwede
ang leading questions sa direct, re-direct, cross, or re-cross. In ordinary procedure it is only
allowed during cross and re-cross.

CASES
PEOPLE VS. PEREZ
FEBRUARY 5, 2003

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Appellant contends that his identification in open court by Mayia was

highly irregular. Appellant points out that the prosecutor had already identified him as the
man wearing an orange t-shirt when the prosecutor asked Mayia to identify her alleged
rapist. Appellant stresses that when Mayia identified him in open court, she referred to
him as a man named “Johnny” and did not give any description or any identifying
mark. Moreover, appellant claims he was alone in the cell when Mayia identified him
after the police arrested him. Appellant bewails that the identification was not done with
the usual police line-up.
Appellant’s contention is untenable.

As a rule, leading questions are not allowed. However, the rules provide for
exceptions when the witness is a child of tender years [13] as it is usually difficult for such
child to state facts without prompting or suggestion. [14] Leading questions are necessary
to coax the truth out of their reluctant lips. [15] In the case at bar, the trial court was justified
in allowing leading questions to Mayia as she was evidently young and unlettered,
making the recall of events difficult, if not uncertain. [16] As explained in People v. Rodito
Dagamos:[17]
“The trend in procedural law is to give wide latitude to the courts in exercising
control over the questioning of a child witness. The reasons are spelled out in our
Rule on Examination of a Child Witness, which took effect on December 15, 2000,
namely, (1) to facilitate the ascertainment of the truth, (2) to ensure that questions
are stated in a form appropriate to the developmental level of the child, (3) to protect
children from harassment or undue embarrassment, and (4) avoid waste of
time. Leading questions in all stages of examination of a child are allowed if the
same will further the interests of justice.

The Court has repeatedly stated that it is highly inconceivable for a child of tender
age, inexperienced in the ways of the world, to fabricate a charge of defloration, undergo
a medical examination of her private part, subject herself to public trial, and tarnish her
family’s honor and reputation, unless she was motivated by a strong desire to seek
justice for the wrong committed against her.

PEOPLE VS. SANTOS

SEPTEMBER 8, 2006.

The trend in procedural law is to give a wide latitude to the courts in exercising control
over the questioning of a child witness. 36 Under Sections 19 to 21 of the Rules on
Examination of a Child Witness,37 child witnesses may testify in a narrative form
and leading questions may be allowed by the trial court in all stages of the examination if
the same will further the interest of justice. 38 It must be borne in mind that the offended
party in this case is a 6-year old minor who was barely five when she was sexually
assaulted. As a child of such tender years not yet exposed to the ways of the world, she
could not have fully understood the enormity of the bestial act committed on her person.
Indeed –

Studies show that children, particularly very young children, make the "perfect
victims." They naturally follow the authority of adults as the socialization process
teaches children that adults are to be respected. The child's age and
developmental level will govern how much she comprehends about the abuse
and therefore how much it affects her. If the child is too young to understand
what has happened to her, the effects will be minimized because she has no
comprehension of the consequences. Certainly, children have more problems
in providing accounts of events because they do not understand
everything they experience. They do not have enough life experiences from
which to draw upon in making sense of what they see, hear, taste, smell and
feel. Moreover, they have a limited vocabulary…. With her limited

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comprehension, the child could not have a perfect way of relating that she
had been sexually abused.39 (Emphasis and italics supplied)

The record discloses that the questions propounded by the judge were intended to elicit
the truth from the child witness. This perceived undue inquisitiveness of the judge did not
unduly harm the substantial rights of the appellant. In fact, it is only to be expected from
the judge who, with full consciousness of his responsibilities could not, and should not,
easily be satisfied with incompleteness and obscurities in the testimonies of the witness.

SEC. 21. Objections to questions.— Objections to questions should be couched in a manner so

as not to mislead, confuse, frighten, or intimidate the child.

SEC. 22. Corroboration.— Corroboration shall not be required of a testimony of a child. His
testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or
judgment subject to the standard of proof required in criminal and non-criminal cases.

BAR QUESTIONS

Competency of a Child Witness

Q: May a person over 18 years old be sometimes considered as a child?

A: sometimes, he may. 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 (Rule on
Examination of a Child Witness).

Bar 2005
Q: When may the trial court order that the testimony of a child be taken by live-link
television?

A: The court may order that the testimony of the child be taken by live-link tv if there is a
likelihood that the child would suffer trauma from testifying 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 (Examination of a child witness).

SEC. 23. Disqualification by reason of death or insanity of adverse party. – Parties or

assignors of parties to a case, or persons in whose behalf a case if prosecuted, against an
executor or administrator or other representative of a deceased person, or against a person of
unsound mind, upon a claim or demand against the estate of such deceased person or against
such person of unsound mind, cannot testify as to any matter of fact occurring before the death of
such deceased person or before such person became of unsound mind.

 This is the DEAD MAN’S STATUTE or sometimes called the “SURVIVOR’S

DISQUALIFICATION RULE”.
 This rule applies ONLY to a civil case or a special proceeding and NOT in a criminal case
because in all probability, if it is the adverse party or the accused that dies, in whom the
claim is demandable, of course, it carries with it the extinction of criminal liability. In the
same manner that if a person is insane, he cannot also be fit to undergo criminal
proceedings. In fact, there are provisions that would say that it will be suspend.
 The “Dead Man’s Statute” provides that if one party to the alleged transaction is
precluded from testifying by death, insanity, or other mental disabilities, the surviving
party is not entitled to the undue advantage of giving his own uncontradicted and
unexplained account of the transaction.[9] But before this rule can be successfully invoked
to bar the introduction of testimonial evidence, it is necessary that:

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“1. The witness is a party or assignor of a party to a case or persons in

whose behalf a case is prosecuted.
2. The action is against an executor or administrator or other representative
of a deceased person or a person of unsound mind;
3. The subject-matter of the action is a claim or demand against the estate
of such deceased person or against person of unsound mind;
4. His testimony refers to any matter of fact which occurred before the
death of such deceased person or before such person became of unsound
mind.”

The problem is section 23 is how it is worded. We need to properly understand this one.

CASE: Mr. D approaches Mr. C to borrow P100, 000 to be paid next year. Mr. C gives Mr. D the
amount. Mr. C did not require Mr. D to execute a promissory note. A day before the agreed date
of payment, Mr. D died. Mr. C went to the executor of the estate of Mr. D and claims the payment
of the debt.

Question: if there was no promissory note that was executed, how then can you verify that there
was a debt or a claim that is valid?

Answer: in relation to section 23, article 130 when death has already closed the lips of a
deceased person who may or may not be obligated against the survivor or the person who
survived (that’s why you call it a survivorship disqualification rule), you cannot testify as to any
matter of fact occurring before or prior to the death. Therefore, in this case, Mr. C is incompetent
to testify as to the transaction he had with Mr. D.

PURPOSE OF THE RULE

The object and purpose of the rule is to guard against the temptation to give false
testimony in regard of the transaction in question on the part of the surviving party, and
further to put the two parties to a suit upon terms of equality in regard to the opportunity
to giving testimony. If one party to the alleged transaction is precluded from testifying by
death, insanity, or other mental disabilities, the other party is not entitled to the undue
advantage of giving his own uncontradicted and unexplained account of the transaction.
(GONI V. CA)

It is designed to close the lips of the party plaintiff when death has closed the lips of the
party defendant, in order to remove from the surviving party the temptation to falsehood
and the possibility of fictitious claims against the deceased. (ICARD V. MARASIGAN)

HOW TO APPLY THE RULE

Will it always revolve around the facts of the problem I told you? Not necessarily; for
example, the person may not be the defendant but a privy, heir or an assignee of the
defendant or the other party may not be the executor or administrator but may be the heir of
the deceased person or the guardian of the insane person and the claims may be different as
well. Therefore, we need to look at certain points of inquiry before we look at how to apply the
rule.

1. KNOW THE PARTIES INVOLVED know who are the parties involved so that you would
know whether the SDR will apply to the particular situation and know who the plaintiff or
defendant is. the plaintiff is th person who has the claim against the estate of the
decedent or the person of the unsound mind. In other words, he is the SURVIVOR (xa
ang buhi!) The defendant cannot be the deceased because he is already dead! The
defendant here is the executor, administrator or representative of the deceased or person
of the unsound mind.

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Remember: THE RULE WILL NOT APPLY WHERE THE EXECUTOR OR

ADMINISTRATOR IS THE PLAINTIFF AS REPRESENTATIVE OF THE DECEASED OR
PERSON OF UNSOUND MIND. So it has to be a case filed by the SURVIVOR against
the executor or administrator. Therefore the SDR will not apply if the plaintiff is the estate
itself represented by the executor or administrator. The plaintiff has to be the survivor and
NOT the executor or administrator or representative.

Example: If the executor or administrator of the deceased sues to recover a debt that is
claimable by the estate, the rule DOES NOT apply.

2. DETERMINE THE NATURE OF THE CASE clearly, rule 130 section 23 provides that
the case should be UPON A CLAIM AGAINST THE ESTATE OF THE DECEASED
PERSON or PERSON OF UNSOUND MIND.

Therefore, the RULE DOES NOT APPLY on the ff. cases:

a. the suit is brought NOT upon the estate and not upon a claim against the estate;

Example: A is the elder person. B is his gardener. In his drunkenness, A told the
gardener that B is his son. A died. B now thinks that if he is the son, he is entitled
to inheritance. So B now claims against the estate. Is it covered? ADMISSION
OF PARTNERNITY? The cases would tell you that what are covered are
MONETARY CLAIMS against the estate.

b. When the action is brought not against the estate or is prosecuted BY the estate.

Knowing the parties and type of action involved, what is the next action?

3. KNOW THE PARTIES WHO ARE PROHIBITED TO TESTIFY The persons disallowed
from testifying ar the parties themselves, assignors of parties to a case or a person in
whose behalf a case is prosecuted. The representatives of the plaintiffs are also NOT
allowed to testify in the case.

THE RIGHT TO OBJECT TO TESTIMONY AS IMPROPER UNDER THE DEAD MAN’S

STATUTE BELONGS SOLELY TO THE REPRESETNATIVE OF THE DECEASED OR THE
PERSON OF UNSOUND MIND.

CASE: Debtor died. Creditor now claims from the estate. We know that under the DMS,
the creditor himself cannot testify. His lips are closed. What he does is to call the witness
stand his secretary, the secretary of ht creditor who witnessed there was a transaction.
Can the secretary testify? Will that not be in violation of the DMS?

Answer: YES. THE DMS DOES NOT APPLY TO THE SECRETARY even if the latter is
the representative of ht creditor. He is not the creditor, only an employee or a witness to
the transaction.

CASE: Debtor is dead. Creditor cannot testify as to his claim against the debtor’s estate.
But what if the creditor take the witness stand as to something else other than his own
claim against the deceased person? In other words, to what testimony does the rule
specially apply? Can you bar a witness from taking the witness stand all together based
on the DMS simply because he is a creditor and therefore his lips are sealed?

Answer: NO. THE DISQUALFICATON ONLY REFERS TO THE CLAIM ITSELF AND
NOT TO OTHER MATTERS. For example, if he testifies to the cause of death of the
deceased person. He can testify for as long as those matters do not relate to the claim

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itself. So therefore, during the cross-examination , if the testimony now refers

to the claim, that is the time where you can object.

SURVIVORSHIP DISQUALIFICATION RULE RAISES LEGITIMATE QUESTIONS ON THE

JUSTNESS OF THE RULE
in trying to avoid the rights and claims against the estate, it ignores the rights of persons
with legitimate claims. It cannot be a hard and fast rule and therefore, the rule must be
subject to quite several exceptions.

EXCEPTIONS TO THE SURVIVOR’S DISQUALIFICATION RULE:

1) 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 EVEN IF IT RELATES TO FACTS OCCURRING PRIOR TO THE DEATH.
The testimony as to the claim of the creditor will actually not be __. (Tongco v. Vianzon,
50 Phil. 698

Question: ni-file ang estate ug case agians the creditor sayng that creditor is also a
debtor fo th estate. The creditor now files a counterclaim, a monetary claim against the
deceased. Will that counterclaim be allowed?

Answer: IT IS ALLOWED. Determine who the original plaintiff is. If the one with original
claim is the one who has a claim against the deceased person, meaning, if the original
plaintiff is the executor or the administrator on behalf of the estate, the rule will NEVER
apply, even if as a result fo the iflin o fthe case, there is a counterclaim that is supposed
to be prohibited under the dead man’s state. IMPORTANT PROVISON! )

SUNGA CHAN V. CHUA

[G.R. No. 143340. August 15, 2001]

Two reasons forestall the application of the “Dead Man’s Statute” to this case.

First, petitioners filed a compulsory counterclaim [11] against respondent in

their answer before the trial court, and with the filing of their counterclaim,
petitioners themselves effectively removed this case from the ambit of the “Dead
Man’s Statute”.[12] Well entrenched is the rule that when it is the executor or
administrator or representatives of the estate that sets up the counterclaim, the
plaintiff, herein respondent, may testify to occurrences before the death of the
deceased to defeat the counterclaim. [13] Moreover, as defendant in the
counterclaim, respondent is not disqualified from testifying as to matters of fact
occurring before the death of the deceased, said action not having been brought
against but by the estate or representatives of the deceased. [14]

Second, the testimony of Josephine is not covered by the “Dead Man’s

Statute” for the simple reason that she is not “a party or assignor of a party to a
case or persons in whose behalf a case is prosecuted”. Records show that
respondent offered the testimony of Josephine to establish the existence of the
partnership between respondent and Jacinto. Petitioners’ insistence that
Josephine is the alter ego of respondent does not make her an assignor because
the term “assignor” of a party means “assignor of a cause of action which has
arisen, and not the assignor of a right assigned before any cause of action has
arisen.”[15] Plainly then, Josephine is merely a witness of respondent, the latter
being the party plaintiff.

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2) ORDINARY WITNESSES, WHO ARE NOT THE PLAINTIFF, ASSIGNOR OF

PLAINTIFF OR PERSON IN WHOSE BEHALF THE CASE IS PROSECUTED MAY
TESTIFY. (Francia v. Hipolito, 93 Phil. 968)

What is an ordinary witness? A witness to the transaction; illustration: A entered into a

contract with B. b died but C was able to see the contract taking place. In fact, he has
knowledge of the transaction. Of course, C is not barred from testifying.

REMEMBER: the Dead man’s statute does not operate to close the mind of a witness as
to any matter of fact of which he has knowledge in any other way through his personal
dealings with the deceased person or communication made by the deceased to the
witness.

For example, the witness with whom the deceased told about the transaction is
ALLOWED to testify. In evidence you are reminded of one specific principle:
Adminissiblity is not equivalent to credibility. So admissible ang testimony ng witness but
will the court believe it? That is another thing.

Here is an interesting case…

SANSON V. CA

FACTS: sanson and celedonia are siblings and each filed a claim against the
estate of the creditor Juan Sy alleging that the deceased owed them a sum of
money. During the hearing of the claims against the estate, Sanson, Celedonia,
and Jade Montinola, wife of claimant Eduardo Montinola, Jr., testified on the
transactions that gave rise thereto, over the objection of the administratrix who
invoked Section 23, Rule 130 of the Revised Rules of Court otherwise known as
the Dead Man’s Statute What happened was, sanson testified as witness to the
transaction of her sister and the deceased; celedonia testified to the transaction
of the deceased and bother sanson. The petitioners argue that the testimonies
of Sanson and Celedonia as witnesses to each other’s claim against the
deceased are not covered by the Dead Man’s Statute; [28] besides, the
administratrix waived the application of the law when she cross-examined them.

The administratrix, on the other hand, cites the ruling of the Court of Appeals in
its decision on review, the pertinent portion of which reads:
The more logical interpretation is to prohibit parties to a
case, with like interest, from testifying in each other’s favor as to acts
occurring prior to the death of the deceased.
Since the law disqualifies parties to a case or assignors to a
case without distinguishing between testimony in his own behalf and that
in behalf of others, he should be disqualified from testifying for his co-
parties. The law speaks of “parties or assignors of parties to a case.”
Apparently, the testimonies of Sanson and Saquin on each other’s
behalf, as co-parties to the same case, falls under the prohibition.

HELD: Sanson’s and Celedonia’s claims against the same estate arose from
separate transactions. Sanson is a third party with respect to Celedonia’s
claim. And Celedonia is a third party with respect to Sanson’s claim. One is not
thus disqualified to testify on the other’s transaction.

In any event, what the Dead Man’s Statute proscribes is the admission
of testimonial evidence upon a claim which arose before the death of the
deceased. The incompetency is confined to the giving of testimony.[29] Since the

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separate claims of Sanson and Celedonia are supported by checks-

documentary evidence, their claims can be prosecuted on the bases of said
checks.

SUMMARY:
1. Pwede ang secretary if he witnesses the trasanciton
2. Pwede ang ordinary witness even if stranger or even if mag-igsuon

WHAT’S THE RULE THEN? For as long as there is a witness, the dead man’s statute
does NOT apply; for as long as such witness is NOT the plaintiff, the DMS will not
apply. In other words, dead man’s statute ONLY applies to UNWITNESSED
TRANSACTIONS. Basta pag naay witness testifying as to his own perception as to
facts which occurred, pwede.

3) WHEN THE PLAINTIFF IS A CORPORATION, THE OFFICERS OR STOCKHOLDERS

THEREOF ARE NOT DISQUALIFIED. (Lichauco v. Atlantic Gulf, et c., 84 Phil. 330)

LICHAUCO V. ATLANTIC GULF

84 PHIL 330

The question raised by the first assignment of error is whether or not the officers
of a corporation which is a party to an action against an executor or administrator
of a deceased person are disqualified from testifying as to any matter of fact
occurring before the death of such deceased person,

HELD: THE RULE APPLIES ONLY TO NATURAL PERSONS. A corporation may

be conceded to be a person, but the concession does not help appellant. To hold
that the statute disqualifies all persons from testifying who are officers or
stockholders of a corporation would be equivalent to materially amending the
statute by judicial interpretation. Plainly the law disqualifies only "parties or
assignors of parties," and does not apply to persons who are merely employed
by such parties or assignors of parties.

The rule disqualifies only parties or assignors of parties, we are constrained to

hold that the officers and/or stockholders of a corporation are not disqualified
from testifying, for or against the 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.

4) WHEN THERE IS AN IMPUTATION OF FRAUD AGAINST THE DECEASED, THE

PLAINTIFF IS NOT BARRED FROM TESTIFYING TO SUCH FRAUD. (Go Chi Gun v.
Co Cho, 96 Phil. 622)

5) WHEN THE DEFENDANT OR DEFENDANTS, THOUGH HEIRS OF THE DECEASED,

ARE SUED IN THEIR PERSONAL AND INDIVIDUAL CAPACITIES, THE PLAINTIFF
MAY TESTIFY AGAINST THEM. (Go Chi Gun v. Co Cho, 96 Phil. 622)

Similarly, if the executor or administrator is sued in his personal capacity, the

plaintiff may testify against him. Why? Because that is no longer a claim against
the estate as it is already a claim against the person of the executor or
administrator.

6) WHEN THE SURVIVOR'S TESTIMONY REFERS TO A NEGATIVE FACT. (Mendezona

v. vda. de Goitia, 54 Phil. 557)

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What is an affirmative fact? that a claim exists.

What is a negative fact? A claim does not exist.

MENDEZONA V. VDA DE GOITIA

54 PHIL 557

The first of these questions tends to show the relationship between the principals
and their attorney-in-fact Benigno Goitia up to 1914. Supposing it was error to
permit such a question, it would not be reversible error, for that very relationship
is proved by Exhibits C to F, and H to I. As to the other two questions, it is to be
noted that the deponents deny having received from the deceased Benigno
Goitia any money on account of profits on their shares, since 1915.

We are of opinion that the claimants' denial that a certain fact occurred before
the death of their attorney-in-fact Benigno Agoitia does not come within the legal
prohibitions. The law prohibits a witness directly interested in a claim against the
estate of a decedent from testifying upon a matter of fact which took place before
the death of the deceased. The underlying principle of this prohibition is to
protect the intestate estate from fictitious claims. But this protection should not be
treated as an absolute bar or prohibition from the filing of just claims against the
decedent's estate.

7) WHEN THE SURVIVOR'S TESTIMONY IS FAVORABLE TO THE DECEASED. (Icard v.

Marasigan, 71 Phil. 419)

If the testimony of the plaintiff does not establish his own claim but establishes
the claim of the ESTATE against another person or party, the testimony is
ALLOWED.

Reason: BECAUSE OF THE HARSHNESS OF THE RULE. This is just like in the
instance of a contributory negligence, when it is present, it means an absolute
bar to a claim. However, the law provided for the Doctrine of last clear Chance. n
the law of TORTS, the doctrine that excuses or negates the effect of the plaintiff's
contributory Negligence and permits him or her to recover, in particular
instances, damages regardless of his or her own lack of ordinary care.

The last clear chance doctrine of the common law was imported into our
jurisdiction by Picart vs. Smith but it is a matter for debate whether, or to what
extent, it has found its way into the Civil Code of the Philippines. The historical
function of that doctrine in the common law was to mitigate the harshness of
another common law doctrine or rule that of contributory negligence. The
common law rule of contributory negligence prevented any recovery at all by a
plaintiff who was also negligent, even if the plaintiff's negligence was relatively
minor as compared with the wrongful act or omission of the defendant. The
common law notion of last clear chance permitted courts to grant recovery to a
plaintiff who had also been negligent provided that the defendant had the last
clear chance to avoid the casualty and failed to do so. Accordingly, it is difficult to
see what role, if any, the common law last clear chance doctrine has to play in a
jurisdiction where the common law concept of contributory negligence as an
absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in
Article 2179 of the Civil Code of the Philippines.

PHOENIX V. IAC
G.R. No. L-65295 March 10, 1987

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Is there perhaps a general concept of "last clear chance" that may be extracted
from its common law matrix and utilized as a general rule in negligence cases in
a civil law jurisdiction like ours? We do not believe so. Under Article 2179, the
task of a court, in technical terms, is to determine whose negligence — the
plaintiff's or the defendant's — was the legal or proximate cause of the injury.
That task is not simply or even primarily an exercise in chronology or physics, as
the petitioners seem to imply by the use of terms like "last" or "intervening" or
"immediate." The relative location in the continuum of time of the plaintiff's and
the defendant's negligent acts or omissions, is only one of the relevant factors
that may be taken into account. Of more fundamental importance are the nature
of the negligent act or omission of each party and the character and gravity of the
risks created by such act or omission for the rest of the community.

The petitioners urge that the truck driver (and therefore his employer) should be
absolved from responsibility for his own prior negligence because the unfortunate
plaintiff failed to act with that increased diligence which had become necessary
to avoid the peril precisely created by the truck driver's own wrongful act or
omission. To accept this proposition is to come too close to wiping out the
fundamental principle of law that a man must respond for the forseeable
consequences of his own negligent act or omission. Our law on quasi-delicts
seeks to reduce the risks and burdens of living in society and to allocate them
among the members of society. To accept the petitioners' pro-position must tend
to weaken the very bonds of society.

Comment: however, there are cases reiterating in 2000 that the docrine in last
clear chance do not apply in our jurisdiction anymore but after that, in 2001,
Doctrine of last clear chance applies. SC forces it to be applied because of the
harshness of the rule.

This time, when the law is very harsh, the SC will usually be very literal in
providing for exceptions.

8) THE ADVERSE PARTY IS COMPETENT TO TESTIFY TO TRANSACTIONS OR

COMMUNICATIONS WITH THE DECEASED OR INCOMPETENT PERSON WHICH
WERE MADE WITH AN AGENT OF SUCH PERSON IN CASES IN WHICH THE AGENT
IS STILL ALIVE AND COMPETENT TO TESTIFY. But the testimony of the adverse party
must be confined o those transactions or communications which were had with the agent.
(Goni, et al., v. Court of Appeals, et al., 144 SCRA 231)

Why is this an exception? Because the intermediary is a witness and the assumption is
what the agent does will be to seek clarification from his principal who is already dead.
Even if technically speaking that the agent is an alter-ego of the deceased principal, he is
still an ordinary witness to the transaction. Therefore, that situation is not covered by the
DMS.

9) OPENING DOORS EXCEPTION when the deceased / disabled party “opens the door”
by introducing testimony or a deposition concerning conversations and/or events in the
presence of the deceased person. A contrary rule will lead to injustice.

10) FOUNDATION TESTIMONY EXCEPTION When the proffered testimony which

ordinarily is barred by the survivor’s disqualification rule but which pertains to the
foundation of a document  when the claim is based upon a document or contract and
not upon the personal dealings or communication with the deceased, the testimony is
admissible

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Here, there is even a stronger witness—the DOCUMENT. DOCUMENTED

TRANSACTIONS DO NOT FALL IWTHIN THE PURVIEW OF THE DEAD MAN’S
STATUTE.

11) WHEN THE TESTIMONY TO BE INTRODUCED RELATES TO ANY FACT RELATING

TO THE HEIRSHIP OF A DECEDENT the dead man’s statute does not apply.

12) IF THERE IS A WAIVER.

How protection of the dead man’s statute is waived:

a. By not objecting to plaintiff's testimony on prohibited matters. (Marella v. Reyes,
12 Phil. 1)
b. By cross-examining the plaintiff on prohibited matters. (Tongco v. Vianzon, 50
Phil. 698)
c. By calling witnesses to testify on prohibited matters. (Arroyo v. Azur, 76 Phil.
493)
d. 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)
e. By offering evidence to rebut the prohibited testimony.

BAR QUESTIONS ON Survivorship Disqualification Rule of the Dead Man’s Statute

Hypothetical situation:
Mr. D approaches Mr. C one rainy Sunday morning to borrow one hundred thousand
pesos to be paid exactly a year after. Without hesitation, c gives d the amount requested. C does
not require d to execute a promissory note. They had been very good friends for as long as they
can remember. Years ago, when Mr. C’s small business was on the verge of bankruptcy it was
the generosity of the then wealthy Mr. D that bailed him out. Exactly a day before the agreed date
for payment, Mr. D dies without paying the debt. What does Mr. C do? Well he does what every
creditor would do under the circumstances. He goes to the executor of what remains of the estate
of Mr. D, and tells him of the debt of Mr. D. he says: “Today is supposed to be the due date of his
debt. I cannot demand payment from him because his dead. You are the executor and alive.

What is the effect of the death of Mr. D?

Mr. C is rendered incompetent to testify as to the transaction he has with D. he is

incompetent because of the possibility that his claim is fraudulent. If C were to be heard there
would be a high risk of paying a fraudulent or a fictitious claim. It is C who has the motive to lie.
He is the survivor. D cannot lie. He is dead. He did not survive; he cannot answer back, nor
disprove the claim of C. To level the playing field between the lucky survivor and the poor
deceased our remedial law ancestors devised a rule that would seal the lips of the survivor by
declaring him incompetent to testify on the transaction between him and the deceased the rule is
definitely one that does not protect the survivor even at the risk of not paying a just and valid
claim because it is the survivor who has the stronger reason to file a false claim. The rule is for
the protection of the guy who died. Hence the name, dead man’s statute.

The rule will not apply where the plaintiff is the executor or administrator as
representative of the deceased or if the plaintiff is the person of unsound mind. So if the executor
of the estate of Mr. C sues Mr. D to collect an unpaid debt incurred in favor of C by D before the
death of C, D although a survivor, is not precluded from testifying as to the transaction he
previously had with C because the case is not upon a claim against the estate of C but a claim by
his estate against D.

Bar 2001

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Q: Maximo filed an action against Pedro, the administrator of the estate of the
deceased Juan, for the recovery of a car which is part of the latter’s estate. During the trial,
Maximo presented witness Mariano who testified that he was present when Maximo and Juan
agreed that the latter would pay a rental of P20000 for the use of Maximo’s car for one month
after which Juan should immediately return the car to Maximo. Pedro objected to the admission of
Mariano’s testimony. If you were the judge, would you sustain Pedro’s objection? Why?

A: The objection of Pedro should not be sustained. The testimony is admissible because the
witness is not qualified to testify. Those disqualified under the dead man’s statute or the
survivorship disqualification rule are parties or assignors of parties to a case, or persons in whose
behalf a case is prosecuted against an executor or administrator or other representative of a
deceased person, or against a person of unsound mind, upon a claim or demand against the
estate of such deceased person or against such person of unsound mind, cannot testify as to any
matter of fact occurring before the death of such deceased person or before such person became
of unsound mind. (sec23 R 130). The witness is not one of those enumerated under the rule.

Bar 2007
True or False
Q: The surviving parties rule bars Maria from testifying for the claimant as to what the deceased
Jose ad said to her, in a claim filed by Pedro against the estate of Jose.

A: FALSE
The rule bars only a party plaintiff, or his assignor or a person in whose behalf a case is
prosecuted. Maria is merely a witness and is not one of those enumerated as barred from
testifying.

SEC. 24. Disqualification by reason of privileged communication. – The following persons

cannot testify as to matters learned in confidence in the following cases:

(a) 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;

(b) 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; (ATTORNEY-CLIENT PRIVILEGE)

(c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without
the consent of the patient, be examined as to any advice or treatment given by him or any
information which he may have acquired in attending such patient in a professional capacity,
which information was necessary to enable him to act in that capacity, and which would blacken
the reputation of the patient; (PHYSICIAN-PATIENT PRIVILEGE RULE)

(d) 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; (PRIEST
PENITENT PRIVILEGE COMMUNICATION)

(e) 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.

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MARITAL PRIVILEGE COMMUNICATION RULE

(a) 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;

This provision might be quite familiar to you since we were able to discuss a previous provision
which is the marital disqualification rule which is a different animal from this one.

Under this 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.

For this rule to apply, the following REQUISITES must be present:

1. There must be a valid marriage  this rule is not extended to people who live together
without the benefit of marriage. Why? This is actually a privilege that you cannot be
examined or called to testify against your wife. That is a privilege and not a prohibition.
2. There is a communication made by one to the other and
3. The confidential information must have been made DURING the marriage.

When these requisites concur, the spouse with whom the testimony is offered may validly object
to the testimony of the other.

There are 2 EXCEPTIONS:

1. In a civil case by one against the other, or
2. In a criminal case for a crime committed by one against the other or the latter's direct
descendants or ascendants;

CASE: If the communication is made in front of the children of the husband and wife. Can the
privilege be invoked? YES, if the children are still minors.

Note: The assumption is any communication given by one spouse to the other is presumably
confidential because there is no standard given in the Rules to determine WON a communication
is meant to e confidential between the spouses.

APPLICATIONS OF THE MARITAL PRIVILEGED COMMUNICATION RULE:

1) Every communication between spouses is presumed to be confidential. (Sexton v.
Sexton, 129 Ia. 487; Wigmore, Sec. 2336)
2) Communications made in the presence of third parties are not confidential, unless the
third person may be considered as an agent of the spouses. (Floyd v. Miller, 61 Ind. 224)
3) Communications overheard by third persons remain confidential as between the
spouses, but the third person who overheard may be called upon to testify as what they
assert. (People v. Carlos, 47 Phil. 626)
4) Communications coming into the hands of third persons, whether legally or illegally,
remain confidential as between the spouses, but the third person may be called upon to
testify. (People, and Hammons, supra)
5) But if the third person acquired knowledge of the communication by collusion and
voluntary disclosure on the part of either of the spouses, he thereby becomes an agent of
such spouses so that the privilege is claimable against him. (Ibid.)
6) Communications intended for transmission to third persons are not confidential. (U.S. v.
Antipolo, 37 Phil. 726). It may seem confidential because of its nature, that its quite
personal but if it intended for transmission to a third person which will be read someone
else, that ceases to be confidential and therefore, that is not covered by the privilege.

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WAIVER OF THE MARITAL PRIVILEGED COMMUNICATION RULE

The privilege is claimable by the spouse not called as witness, so that it its waivable only
by him or her; and it is waivable by any act of such spouse which might be considered as
an express or implied consent to the disclosure of the communication. (People v. Hayes,
140 N.Y. 484)

An example of the express consent is when there is an objection that is made or implied
consent in where there is no objection that is made on the testimony of the other spouse.
If you do not object, you waive the rule. Plain and simple.

DISTINCTION BETWEEN MARITAL DISQUALIFICATION RULE (section 22) AND MARITAL

PRIVILEGE COMMUNICAITON RULE

1) In Marital disqualification rule under section 22 will not come into play when the fact
matter of the problem makes reference to confidential information between husband and
wife during the marriage. When the total confidential communications between husband
and wife during the marriage, you apply instead section 24.

2) Communications that are not intended to be confidential because they were uttered in the
presence of 3rd persons are not deemed confidential even when made during the
marriage. If an adverse testimony is covered as a result of the remarks which were not
made in confidence, section 22 or the marital disqualification rule applies. The same rule
applies when the confidential information was not made during the marriage. On the
other hand, the marital privilege communication rule applies only to testimonies of a
confidential nature made by one spouse to the other during the marriage and does NOT
include acts merely observed by the spouses. (therefore, a spouse can testify as to what
he has merely observed but when it was specifically communicated, and is presumed to
be confidential, no testimony can be made of such fact)

3) When the marital privilege communication rule applies, the spouse affected by the
adverse testimony may object to the testimony even after the death or dissolution of
marriage. The marital disqualification rue on the other hand can no longer be invoked
once the marriage is dissolved. It can only be asserted during the marriage. (VIP
provision; in MDR, when marriage is dissolved, when there is no marital harmony and no
marriage is sought to be protected, so the MDR does not apply. But MPC applies even
after the marriage)

4) The marital disqualification rule requires that the spouse for or against whom the
testimony is offered is a party to the action. However, if you look at the marital privilege
communication rule in section 24(a), that is not required.

5) In the Marital Disqualification Rule, the prohibition is a testimony for or against the other,
while in the Marital Privilege Communication Rule, what is prohibited is the examination
of the spouse as to matters related in confidence to the other spouse. In the MDR rule
therefore, it is the testimony that is prohibited altogether; whereas in MCDC, it is the
content of the examination or the content of the testimony that is prohibited because the
communication is always presumed to be confidential.

SUMMARY:
a. Privilege is applicable regardless of whether the spouses are parties or not;
Marital disqualification is applicable only when one or both spouses are parties
b. The privilege applies to testimonies on confidential communication only; Marital
disqualification applies to testimony on any fact
c. Marital disqualification ceases after dissolution of marriage; Privileged

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communication lasts even after the death of either spouse

d. Even if the communication is not confidential, the marital disqualification may still
be invoked
e. Marital disqualification is more concerned with the consequences. If the rule is
not there, perjury and domestic disunity may result; Privilege protects the
hallowed confidences inherent in marriage b/w husband and wife and therefore
guarantees the preservation of the marriage and further the relationship between
the spouses as it encourages the disclosure of confidential matters without fear
of revelation.

Tabular distinction:

SECTION 22 SECTION24 (a)

Marriage Privilege
During marriage During and after marriage
Any matter Confidential
Case of 1 spouse against the other Any case; need NOT be a case of 1 spouse;
(testify) NO distinction
Invoked by spouse
Exceptions:
(1) civil case between 1 spouse against the other
(2) criminal case between 1 spouse against the other/latter’s direct ascendants and
descendants

MARITAL DISQUALIFICATION RULE

NOTE!!!!
 The marital disqualification rule under sec. 22 of Rule 130 forbids the husband or the wife
to testify for or against the other without the consent of the affected spouse except in
those cases authorized by the rule. The prohibition extends not only to a testimony
adverse to the spouse but also to a testimony in favor of the spouse. It also extends to
both criminal and civil cases because the rule does not distinguish.
 In order that the husband or wife may claim the privilege, it is essential that they be
validly married. If they are not, there is no privilege. Rule does not cover illicit
cohabitation.
 Sec 22 r 130 requires not only a valid marriage but the existence of that valid marriage at
the moment the witness-spouse gives the testimony.
 the rule applies whether the witness-spouse is a party to the case or not but the other
spouse must be a party. That the other spouse must be a party is evident from the phrase
“…neither the husband nor the wife may testify for or against the other...”

Refer more to pp266-267 (Riano)

EXCEPTIONS TO MARITAL DISQUALIFICATION RULE

Bar 2000
Q: Vida and Romeo are legally married. Romeo is charged in court with the crime of serious
physical injuries committed against Selmo, son of Vida, step son of Romeo. Vida witnessed the
infliction of the injuries on Selmo by Romeo. The public prosecutor called Vida to the witness
stand and offered her testimony as eyewitness. Counsel for Romeo objected on the ground of the
marital disqualification rule under the rules of court. (a)Is the objection valid? (b) Will your answer
be the same if Vida’s testimony is offered in a civil case for recovery of personal property filed by
Selmo against Romeo?

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A:
(a) The objection is not valid. While the rule provides that neither the husband nor the wife
may testify for or against the other without the consent of the affected spouse, the
prohibition is merely the general rule. Said rule is subject to certain exceptions, one of
which is in a criminal case committed by one against the direct descendant of the other.
Romeo is accused of committing a crime against Selmo, the son of Vida and the latter’s
direct descendant.
(b) The answer will not be the same. The rule in a criminal case is not the same as that in a
civil case. In a civil case, for the marital disqualification rule not to apply, the case must be
by one spouse against the other. In the case under consideration, the case is by the son
of one spouse against the other spouse. Romeo may thus, invoke the marital
disqualification rule against Vida’s proposed testimony.

TESTIMONY BY THE ESTRANGED SPOUSE

Bar 2006
Q: Leticia was estranged from her husband Paul for more than a year due to his suspicion that
she was having an affair with Manuel, their neighbor. She was temporarily living with her sister in
Pasig City.

For unknown reasons, the house of Leticia's sister was burned, killing the latter. Leticia survived.
She saw her husband in the vicinity during the incident. Later, he was charged with arson in an
Information filed with the Regional Trial Court, Pasig City.
During the trial, the prosecutor called Leticia to the witness stand and offered her testimony to
prove that her husband committed arson.

Can Leticia testify over the objection of her husband on the ground of martial privilege?
A: Leticia cannot testify. Sec22 of R130 bars her testimony without the consent of the husband
during the marriage. The separation of the spouses has not operated to terminate their marriage.

Pls consider this!

Leticia may testify over the objection of her husband. Where the marital and domestic relations
between her and the accused husband have become so strained that there is no more harmony,
peace or tranquility to be preserved, there is no longer any reason to apply the Marital
Disqualification rule.

Bar 2004
Q: XYZ, an alien, was criminally charged of promoting and facilitating child prostitution and other
sexual abuses under RA 7610. The principal witness against him was his Filipina wife, ABC.
Earlier, she has complained that XYZ’s hotel was being used as a center for sex tourism and child
trafficking. The defense counsel for XYZ objected to the testimony of ABC at the trial of the child
prostitution case and the introduction of the affidavits she executed against her husband as a
violation of espousal confidentiality and marital privilege rule. It turned out that DEG, the minor
daughter of ABC by her first husband who was a Filipino was molested by XYZ earlier. This, ABC
had filed for legal separation from XYZ since last year.

May the court admit the testimony and affidavits of the wife, AB, against her husband XYZ, in the
criminal case involving child prostitution?

Answer: If the testimony and affidavit of the wife are evidence of the case against her husband
for child prostitution involving her daughter, the evidences are admissible. The marital privileged
communication rule under sec 24 rule 130 as well as the marital disqualification rule under sec 22
of rule 130 do not apply to and cannot be involved in a criminal case committed by a spouse
against the direct descendants of the other.

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A crime committed by the husband against the daughter of his wife is considered a
crime committed against the wife and directly attacks or vitally impairs the marital relations.

Bar 1995
Q: Allan and Narita were married on Aug 1 1989, after 2 months, Narita told Allan in confidence
that the 10 year old Liza whom she claimed to be her niece was actually her daughter by a
certain married man

In 1992, Narita obtained a judicial decree of nullity of her marriage with Allan on the latter’s
psychological incapacity to fulfill his marital obligations. When the decree became final, Liza
assisted by narita, filed 10 cases of rape against Allan committed in 1991. During the trial, Narita
was called to the witness stand to testify as a witness against Allan who objected thereto on the
found of marital disqualification.
1. As a public prosecutor, how would you meet the objection?
2. Suppose Narita’s testimony was offered while the decision nullifying her marriage to
Allan was pending appeal, would your answer be different?
3. Suppose Narita died during the pendency of the appeal, and soon ager, the legal wife
of basilio sued for legal separation on sexual infidelity in view of Basilio’s love affair
with Narita. At the trial Allan was called by Basilio’s wife to testify that narita confided
to him during their marriage that liza was her love child by basilio. As counsel for
Basilio, can you validly object to the presentation of Allan as witness for the plaintiff?
Explain.

A:
1. As a public prosecutor, how would you meet the objection?

I would ask the court to overrule the objection. Under the marital disqualification
rule, the objection to the testimony of one spouse against the other may be invoked only
during the marriage. At the time the testimony of Narita was offered, the marriage was
already dissolved, besides, the crime was committed against a direct descendant of
Narita.

2. Suppose Narita’s testimony was offered while the decision nullifying her marriage to Allan
was pending appeal, would your answer be different?

The answer would not be different and the court may likewise be asked to
overrule the objection. The marital disqualification rule may not be invoked in a criminal
case for a crime committed against the direct descendant of the other spouse. Here, liza
is the daughter of Narita.

3. Suppose Narita died during the pendency of the appeal, and soon ager, the legal wife of
basilio sued for legal separation on sexual infidelity in view of Basilio’s love affair with
Narita. At the trial Allan was called by Basilio’s wife to testify that narita confided to him
during their marriage that liza was her love child by basilio. As counsel for Basilio, can
you validly object to the presentation of Allan as witness for the plaintiff? Explain.

Suggested answer: I could validly object to the presentation of Allan as a witness

on the ground that the communication of Narita was a privileged communication which
could be invoked during or after the marriage. Moreover, the testimony of Allan would be
hearsay.

Writers comment: it is submitted that the testimony could not be validly objected upon by
Basilio’s counsel on the basis of the marital priv comm.. rule. Basilio does not own the
privilege. The prerogative to object to a confidential communication between spouses is
vested upon the spouses themselves, particularly the communicating spouse, not a third
person. This is clear from the provision “cannot be examined without the consent of the

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other” the proper objection should be on hearsay grounds not on privileged

communication.

BAR 1998
Q: C is the child of the spouses H and W. H sued his wife for judicial declaration of nullity of
marriage under Art. 36 of the FC. In the trial, the ff. testified over the objection of W: C, H, and D,
a doctor of medicine who used to treat W. rule on W’s objection which are the ff:
a. H cannot testify against her because of the rule on marital privilege

Answer: The objection should be overruled. The rule invoked by W, the rule o marital privilege
does not apply to a civil case by one against the other. The suit between the spouses is a civil
case against the other.

PHYSICIAN PATIENT PRIVILEGE RULE

c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil

case, without the consent of the patient, be examined as to any advice or treatment
given by him or any information which he may have acquired in attending such
patient in a professional capacity, which information was necessary to enable him to
act in that capacity, and which would blacken the reputation of the patient;

SCOPE

The Physician patient privilege rule applies to a civil case, whether the patient is a party
to the civil case or not. The phraseology of the rule implies that the privilege cannot be used
in a criminal case presumably because the public and criminal prosecution should be
deemed to be more important than the secrecy of the privilege communication.

REASON FOR THE RULE

This is to encourage the patient to freely disclose all the matters which may aid in the
diagnosis and treatment of the disease or injury. For this purpose, it is necessary to shield
the patient from embarrassing details concerning his condition.

The rule which excludes disclosures to physicians is not a rule of incompetency of

evidence serving the end of protecting the adverse party against unreliable or prejudicial
testimony. It is a rule of privilege protecting the extrinsic interest of the patient and designed
to promote health not truth. It encourages free disclosure in the sick-room by preventing
such disclosure in the courtroom. The patient is the person to be encouraged and he is the
holder of the privilege."

REQUISITES FOR THE RULE

The rule on confidential communications between physician and patient requires that:
a) the action in which the advice or treatment given or any information is to be used is a civil
case;
b) the relation of physician and patient existed between the person claiming the privilege or
his legal representative and the physician;
c) the advice or treatment given by him or any information was acquired by the physician
while professionally attending the patient;
d) the information was necessary for the performance of his professional duty; and
e) The disclosure of the information would tend to blacken the reputation of the patient.

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THE PRIVILEGE SURVIVES THE DEATH OF THE PATIENT. Death does not permit
the living to impair the deceased’ name by disclosing information held confidential by the law.

GONZALES V. CA
October 30, 1998

Petitioners do not dispute that the affidavit meets the first four requisites. They assert,
however, that the finding as to Ricardo Abad’s “sterility” does not blacken the character of
the deceased. Petitioners conveniently forget that Ricardo Abad’s “sterility” arose when
the latter contracted gonorrhea, a fact which most assuredly blackens his reputation. In
fact, given that society holds virility at a premium, sterility alone, without the attendant
embarrassment of contracting a sexually-transmitted disease, would be sufficient to
blacken the reputation of any patient. We thus hold the affidavit inadmissible in
evidence. And the same remains inadmissible in evidence, notwithstanding the death of
Ricardo Abad. As stated by the trial court:

In the case of Westover vs. Aetna Life Insurance Company, 99 N.Y. 59, it was pointed
out that: “The privilege of secrecy is not abolished or terminated because of death as
stated in established precedents. It is an established rule that the purpose of the law
would be thwarted and the policy intended to be promoted thereby would be defeated, if
death removed the seal of secrecy, from the communications and disclosures which a
patient should make to his physician. After one has gone to his grave, the living are not
permitted to impair his name and disgrace his memory by dragging to light
communications and disclosures made under the seal of the statute.

 A PERSON AUTHORIZED TO PRACTICE MEDICINE, SURGERY OR OBSTETRICS

(Hence, nurses, midwives and other people who attend to the ill can be called to testify
as to any matter) CANNOT IN A CIVIL CASE, WITHOUT THE CONSENT OF THE
PATIENT, BE EXAMINED AS TO:
a) Any advice given to the client
b) or treatment given by him or
c) Any information which he may have acquired in attending such patient in a professional
capacity, which information was necessary to enable him to act in capacity, and which
would blacken the reputation of the patient;

 Reputation was used here but its former word was ‘character’. Reputation would simply
mean the consensus perception of the people of you. Character is a technical term in law.
It means moral character.

IMPORTANT POINTS:
 The rule does not require that the relation between the physician and the patient be a
result of a contractual relationship like one initiated by the patient’s voluntary act. It might
have been a result of a quasi-contractual relationship as when the patient is seriously ill
when the physician treats him even if he is not in a condition to give his consent, as in the
situation in article 2167 of the civil code. (article 2167-- When through an accident or
other cause a person is injured or becomes seriously ill, and he is treated or helped while
he is not in a condition to give consent to a contract, he shall be liable to pay for the
services of the physician or other person aiding him, unless the service has been
rendered out of pure generosity.)
 For this privilege to apply, it is necessary that the physician be in the exercise of his
actual professional capacity and that the advice, treatment or information be acquired in
such capacity. The physician may be said to be acting in a professional capacity when he
attends to the patient for either curative or preventive treatment. Hence, it is submitted
that the results of autopsies may not be deemed covered by the privilege because
autopsies are not intended for treatment.
 The privilege does not apply to shield commission of a crime or when the purpose is an

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unlawful one as for example, to obtain unlawful drugs. So if nakita ka sa x-ray

and naay illegal drugs, it is not covered. Such possession is not part of what is
contemplated as “treatment”.

WAIVER OF THE PHYSICIAN-PATIENT PRIVILEGE

 This privilege belongs to the patient, so that it is only he that can claim or waive it. It is
waivable expressly or impliedly. It is impliedly waived like any other privilege rule. (Penn.
Mutual life ins. Co. V. Wiler, 100 ind. 92)

 The waiver may be by a contract as in medical or life insurance.

 When the patient answers questions on cross examination regarding that medical
condition which is subject of the privilege , there is waiver

 Under Rule 28 ROC, 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.

 This privilege does not apply when the doctor is presented as an expert witness and only
hypothetical problems were presented to him. (Lim vs. CA, 1992)

Example: the father made a will. Father died. Later on, it was discovered that a son was
disinherited. The son now wants to introduce a testimony of the doctor saying that the father at
the time he was making the will was crazy. The patient here is already dead.

Question #1: who can claim the privilege?

Answer: the representatives of the estate, the other heirs of the deceased.

Question #2: Can the physician patient privilege rule be applied?

Answer: YES, because it tends to blacken the reputation of the patient.

Now you see the difference between reputation and character. Character deals as to
whether how good or bad the person is. Reputation covers any vice or perceived defect in the
personality of the person whose sanity is in consideration. That is my submission. It should be
applied to that type of situation.

HIPPOCRATIC OATH

The Hippocratic Oath mandates physicians to give primordial consideration to the health
and welfare of their patients. If a doctor fails to live up to this precept, he is made
accountable for his acts. A mistake, through gross negligence or incompetence or plain
human error, may spell the difference between life and death. In this sense, the doctor
plays God on his patient's fate.

In other words, the privilege should be made to apply because the doctor has the
obligation not to harm the reputation of the patient even after the death of the patient.

Physician- Patient Privilege

Bar 1998
Q: C is the child of the spouses H and W. H sued his wife for judicial declaration of nullity of
marriage under Art. 36 of the FC. In the trial, the following testified over the objection of W: C H
and D, a doctor of medicine who used to treat W. Rule on W’s objections which are the ff:
(C.1.). D cannot testify against her because of the doctrine of privileged communication.

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(c.2) C cannot testify against her because of the doctrine of parental privilege

A1: D cannot testify over the objection of W where the subject of the testimony is the advice or
treatment given by him or any information which he may have acquired in attending to W in his
professional capacity.

A2. W cannot invoke the privilege which belongs to the child. C may testify if he wants to
although he may not be compelled to do so.

ATTORNEY-CLIENT PRIVILEGE
b) 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;

Attorney-client privilege is a legal concept that protects communications between a client and
his or her attorney and keeps those communications confidential.

The policy underlying this evidentiary privilege is that of encouraging open and honest
communication between clients and attorneys, which is thought to promote obedience to law and
reduce the chance of illegal behavior, whether intentional or inadvertent. As such, the attorney-
client privilege is considered as one of the strongest privileges available under law.

Considerations favoring confidentiality in lawyer-client relationships are many and serve

several constitutional and policy concerns. In the constitutional sphere, the privilege gives flesh
to one of the most sacrosanct rights available to the accused, the right to counsel. If a client were
made to choose between legal representation without effective communication and disclosure
and legal representation with all his secrets revealed then he might be compelled, in some
instances, to either opt to stay away from the judicial system or to lose the right to counsel. If the
price of disclosure is too high, or if it amounts to self incrimination, then the flow of information
would be curtailed thereby rendering the right practically nugatory. The threat this represents
against another sacrosanct individual right, the right to be presumed innocent is at once self-
evident.

Encouraging full disclosure to a lawyer by one seeking legal services opens the door to a
whole spectrum of legal options which would otherwise be circumscribed by limited information
engendered by a fear of disclosure. An effective lawyer-client relationship is largely dependent
upon the degree of confidence which exists between lawyer and client which in turn requires a
situation which encourages a dynamic and fruitful exchange and flow of information. It
necessarily follows that in order to attain effective representation, the lawyer must invoke the
privilege not as a matter of option but as a matter of duty and professional responsibility.

As the lawyer, you need the truth to represent your clients well. However, the clients are usually
reluctant. That is why the ACP is here to encourage full disclosure.

The attorney-client privilege balances conflicting interests. Why? Remember as the lawyer
you have the ff. Duties:
a. duty to the court
b. Duty to the public you have to be perceived as agent of justice.
c. Duty to the client your client,

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Under American jurisprudence, To encourage clients to inform their attorneys of all

details relevant to a case, ethical codes also entrust attorneys with preserving the confidentiality
of the information their clients give them; any failure to do so constitutes misconduct on the part
of the attorney. The law protects attorney-client confidentiality with the principle of Attorney-Client
Privilege, and under very few circumstances is it lawful to breach this privilege of confidentiality.

That because the Attorney-Client privilege balances conflicting interest, it is not subject to
stringent or rigid definition.

However, there should be REQUISITES that should be reckoned with so that the ACP will apply:
1) Any communication made by the client to the lawyer, or any advice given by the attorney
to the client
2) The communication must have been made in confidence
3) The communication or advice must have been given either in the course of, or with a
view to, professional employment,

Question: is there a need for a perfected attorney-client relationship? Like when they
actually sign a contract or document?
Answer: NO. It is not really needed. It is not needed to set up a contract for the ACP to
apply. This is applicable even in the course of the professional engagement or even with
a view to professional employment. Maski Kanang niduol lang ka sa attorney, storya ka
sa imung problem. Tapos muingon xa nga mubalik lang xa kay gimahalan xa sa fees. The
ACP already applies. So no need for a formal contract; the moment you are consulted,
you are already bound. If the rule were otherwise, it will make it extremely difficult for
clients to trust their lawyers.

4) 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;

(VIP CASE!!!) QUESTION: if you are the lawyer, can you testify on matters that is told to you? Of
course you cannot.

But can you testify about the fact that you were consulted by the client? Does the ACP covers
testimonies about the identity of the client? Can the lawyer refuse to disclose the name of his
client?

Situation: the prosecution does nto know who the perpetuator of the crime is but they know who
the lawyer is. The position of the Sandiganbayan is that if the lawyer confirms that Cojuangco is
his client, then cojuangco might be the perpetuator of the cirm. But the lawyer regala said they
cannot do that because it will allow them to give direction of the case.

REGALA V. SANDIGANBAYAN
[G.R. No. 108113. September 20, 1996]

The question now arises whether or not this duty may be asserted in refusing to disclose
the name of petitioners' client(s) in the case at bar. Under the facts and circumstances
obtaining in the instant case, the answer must be in the affirmative.

As a matter of public policy, a client’s identity should not be shrouded in

mystery.[30] Under this premise, the general rule in our jurisdiction as well as in the
United States is that a lawyer may not invoke the privilege and refuse to divulge the
name or identity of his client.[31]

The reasons advanced for the general rule are well established.

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First, the court has a right to know that the client whose privileged
information is sought to be protected is flesh and blood.
Second, the privilege begins to exist only after the attorney-client relationship has
been established. The attorney-client privilege does not attach until there is a client.
Third, the privilege generally pertains to the subject matter of the relationship.
Finally, due process considerations require that the opposing party should, as a
general rule, know his adversary. “A party suing or sued is entitled to know who his
opponent is.”[32] He cannot be obliged to grope in the dark against unknown forces. [33]

Notwithstanding these considerations, the general rule is however qualified by some

important exceptions.
1) Client identity is privileged where a strong probability exists that revealing
the client’s name would implicate that client in the very activity for which he
sought the lawyer’s advice.
2) 2) Where disclosure would open the client to civil liability, his identity is
privileged. For instance, the peculiar facts and circumstances of Neugass
v. Terminal Cab Corporation,[37] prompted the New York Supreme Court
to allow a lawyer’s claim to the effect that he could not reveal the name
of his client because this would expose the latter to civil litigation.
3) Where the government’s lawyers have no case against an attorney’s client
unless, by revealing the client’s name, the said name would furnish the only
link that would form the chain of testimony necessary to convict an
individual of a crime, the client’s name is privileged. (LAST LINK
DOCTRINE)

Apart from these principal exceptions, there exist other situations which could qualify
as exceptions to the general rule.

For example, the content of any client communication to a lawyer lies within the
privilege if it is relevant to the subject matter of the legal problem on which the client
seeks legal assistance.[44] Moreover, where the nature of the attorney-client relationship
has been previously disclosed and it is the identity which is intended to be confidential,
the identity of the client has been held to be privileged, since such revelation would
otherwise result in disclosure of the entire transaction. [45]

Summarizing these exceptions, information relating to the identity of a client may fall
within the ambit of the privilege when the client’s name itself has an independent
significance, such that disclosure would then reveal client confidences. [

The circumstances involving the engagement of lawyers in the case at bench,

therefore, clearly reveal that the instant case falls under at least two exceptions to the
general rule. First, disclosure of the alleged client's name would lead to establish said
client's connection with the very fact in issue of the case, which is privileged information,
because the privilege, as stated earlier, protects the subject matter or the substance
(without which there would be no attorney-client relationship).

The link between the alleged criminal offense and the legal advice or legal service
sought was duly established in the case at bar, by no less than the PCGG itself. The key
lies in the three specific conditions laid down by the PCGG which constitutes petitioners’
ticket to non-prosecution should they accede thereto:
(a) the disclosure of the identity of its clients;
(b) submission of documents substantiating the lawyer-client relationship; and
(c) the submission of the deeds of assignment petitioners executed in favor of their
clients covering their respective shareholdings.

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From these conditions, particularly the third, we can readily deduce that
the clients indeed consulted the petitioners, in their capacity as lawyers, regarding the
financial and corporate structure, framework and set-up of the corporations in
question. In turn, petitioners gave their professional advice in the form of, among others,
the aforementioned deeds of assignment covering their clients’ shareholdings.

There is no question that the preparation of the aforestated documents was part and
parcel of petitioners’ legal service to their clients. More important, it constituted an
integral part of their duties as lawyers. Petitioners, therefore, have a legitimate fear that
identifying their clients would implicate them in the very activity for which legal advice had
been sought, i.e., the alleged accumulation of ill-gotten wealth in the aforementioned
corporations.

Furthermore, under the third main exception, revelation of the client's name would
obviously provide the necessary link for the prosecution to build its case, where none
otherwise exists. It is the link, in the words of Baird, “that would inevitably form the chain
of testimony necessary to convict the (client) of a... crime."

An important distinction must be made between a case where a client takes on the
services of an attorney for illicit purposes, seeking advice about how to go around the law
for the purpose of committing illegal activities and a case where a client thinks he might
have previously committed something illegal and consults his attorney about it. The first
case clearly does not fall within the privilege because the same cannot be invoked for
purposes illegal. The second case falls within the exception because whether or not the
act for which the advice turns out to be illegal, his name cannot be used or disclosed if
the disclosure leads to evidence, not yet in the hands of the prosecution, which might
lead to possible action against him.

These cases may be readily distinguished, because the privilege cannot be invoked
or used as a shield for an illegal act, as in the first example; while the prosecution may
not have a case against the client in the second example and cannot use the attorney
client relationship to build up a case against the latter. The reason for the first rule is that
it is not within the professional character of a lawyer to give advice on the commission of
a crime.[48] The reason for the second has been stated in the cases above discussed and
are founded on the same policy grounds for which the attorney-client privilege, in
general, exists.

In fine, the crux of petitioners' objections ultimately hinges on their expectation that if
the prosecution has a case against their clients, the latter's case should be built upon
evidence painstakingly gathered by them from their own sources and not from compelled
testimony requiring them to reveal the name of their clients, information which
unavoidably reveals much about the nature of the transaction which may or may not be
illegal. The logical nexus between name and nature of transaction is so intimate in this
case that it would be difficult to simply dissociate one from the other. In this sense, the
name is as much "communication" as information revealed directly about the transaction
in question itself, a communication which is clearly and distinctly privileged. A lawyer
cannot reveal such communication without exposing himself to charges of violating a
principle which forms the bulwark of the entire attorney-client relationship.

The uberrimei fidei relationship between a lawyer and his client therefore imposes a
strict liability for negligence on the former. The ethical duties owing to the client,
including confidentiality, loyalty, competence, diligence as well as the responsibility to
keep clients informed and protect their rights to make decisions have been zealously
sustained.

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We have no choice but to uphold petitioners' right not to reveal the

identity of their clients under pain of the breach of fiduciary duty owing to their clients,
because the facts of the instant case clearly fall within recognized exceptions to the rule
that the client’s name is not privileged information.

If we were to sustain respondent PCGG that the lawyer-client confidential privilege

under the circumstances obtaining here does not cover the identity of the client, then it
would expose the lawyers themselves to possible litigation by their clients in view of the
strict fiduciary responsibility imposed on them in the exercise of their duties.

The complaint in Civil Case No. 0033 alleged that the defendants therein, including
herein petitioners and Eduardo Cojuangco, Jr. conspired with each other in setting up
through the use of coconut levy funds the financial and corporate framework and
structures that led to the establishment of UCPB, UNICOM and others and that through
insidious means and machinations, ACCRA, using its wholly-owned investment arm,
ACCRA Investments Corporation, became the holder of approximately fifteen million
shares representing roughly 3.3% of the total capital stock of UCPB as of 31 March
1987. The PCGG wanted to establish through the ACCRA lawyers that Mr. Cojuangco is
their client and it was Cojuangco who furnished all the monies to the subscription
payment; hence, petitioners acted as dummies, nominees and/or agents by allowing
themselves, among others, to be used as instrument in accumulating ill-gotten wealth
through government concessions, etc., which acts constitute gross abuse of official
position and authority, flagrant breach of public trust, unjust enrichment, violation of the
Constitution and laws of the Republic of the Philippines.

By compelling petitioners, not only to reveal the identity of their clients, but worse, to
submit to the PCGG documents substantiating the client-lawyer relationship, as well as
deeds of assignment petitioners executed in favor of its clients covering their respective
shareholdings, the PCGG would exact from petitioners a link “that would inevitably form
the chain of testimony necessary to convict the (client) of a crime.”

PLEASE READ THE FULL TEXT. THIS MIGHT COME OUT IN THE EXAM!!

The attorney-client privilege may not be invoked to refuse to divulge the identity of the
client, EXCEPT: (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 vs. Sandiganbayan, 1996)

LAST LINK DOCTRINE: Non-privileged information, such as identity of the client is protected if
the revelation of such information would necessarily reveal the privileged information.

CONSULTATIONS TO THE LAWYER:

ARE ALL CONSULTATIONS TO THE LAWYER COVERED?

Answer: NO. As a general rule, the consultation should have begun in the course of the
employment similar to the rule of priest-penitent privilege.

Situations:
1. A and B are friends. A is the client and B is the lawyer. Nag-basketball sila and then naay
giingon si A kay B.  that is NOT covered because it was not made in the course of the
professional employment.
2. Look at the peculiar case of Fr. Gus: he is covered by the ACP and Priest-penitent
privilege. 

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So not all consultations are covered but if you consult the lawyer in his professional
capacity, definitely, you are covered.

“IN THE COURSE OF OR WITH A VIEW TO PROFESSIONAL EMPLOYMENT”

a. APPARENT CONFLICT OF INTEREST IS ENOUGH SO THAT THE ACP WILL

APPLY. It is enough that the client reasonably believed that the person consulted is a
lawyer.

Situation: A is estranged with his wife and he knows his wife will file case against him. What will
he do? He goes to their lawyer B, the best lawyer in marital cases. He consults lawyer B. Atty-
Client relationship exists, rights? So that lawyer cannot represent the wife anymore. He then goes
to the 2nd best lawyer and does the same thing all over again until he covers all the lawyers in the
city so that these lawyers before whom he consults would not be able to represent his wife. Ca
anyone of those lawyers represent the wife?

Answer: NO. There is so many conflict of interest. See? You can actually do that. With respect to
conflict of interest situation, even an APPARENT conflict of interest should be enough to make a
lawyer inhibit himself. Real or apparent, it does not matter. The court will view it as a conflict of
interest.

b. PRIVILEGE DOES NOT EXTEND TO COMMUNICATIONS WHERE THE CLIENT’S

PURPOSE IS THE FURTHERANCE OF A FUTURE INTENDED CRIME OR FRAUD

Situation: A client goes to lawyer an says, “atty, ingani akong problema ha. I will tell you what
happened, etc…unsa akong buhaton?” lawyer told him what to do. Mangutana xa unsaon man
nako pag-iwas nga dili ko makabayad ug tax, penalties, etc. unsaon nako pagtakas sa ani nga
kaso?

Question: can the ACP be used as a shield to perpetuate fraud or to commit a crime?

Answer: NO. The privilege does not apply to communications between an attorney and a client
that are made in furtherance of a Fraud or other future or intended crime.

c. COMMUNICATIONS MAY REFER TO ANTICIPATED LITIGATIONS OR MAY NOT

REFER TO ANY LITIGATION AT ALL.

The privilege is not limited to actual or pending cases, the communication may still refer to
anticipated litigations or may not refer to any litigation at all. Even if the case is not yet pending or
may still ripen in the future, the privilege may still apply.

PEOPLE V. SANDIGANBAYAN
July 16, 1997

The principal issues on which the resolution of the petition at bar actually turns are
therefore (1) whether or not the projected testimony of respondent Sansaet, as proposed
state witness, is barred by the attorney-client privilege; and (2) whether or not, as a
consequence thereof, he is eligible for discharge to testify as a particeps criminis.

As already stated, respondent Sandiganbayan ruled that due to the lawyer-client

relationship which existed between herein respondents Paredes and Sansaet during the
relevant periods, the facts surrounding the case and other confidential matters must have
been disclosed by respondent Paredes, as client, to respondent Sansaet, as his lawyer.
Accordingly, it found "no reason to discuss it further since Atty. Sansaet cannot be

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presented as a witness against accused Ceferino S. Paredes, Jr. without the

latter's consent." 21

The Court is of a contrary persuasion. The attorney-client privilege cannot apply in these
cases, as the facts thereof and actuations of both respondents therein constitute an
exception to the rule. For a clearer understanding of that evidential rule, we will first
sweep aside some distracting mental cobwebs in these cases.
1. It may correctly be assumed that there was a confidential communication made by
Paredes to Sansaet in connection with Criminal Cases Nos. 17791-93 for falsification
before respondent court, and this may reasonably be expected since Paredes was
the accused and Sansaet his counsel therein. Indeed, the fact that Sansaet was
called to witness the preparation of the falsified documents by Paredes and Honrada
was as eloquent a communication, if not more, than verbal statements being made to
him by Paredes as to the fact and purpose of such falsification. It is significant that
the evidentiary rule on this point has always referred to "any communication," without
distinction or qualification. 22
In the American jurisdiction from which our present evidential rule was taken, there is
no particular mode by which a confidential communication shall be made by a client
to his attorney. The privilege is not confined to verbal or written communications
made by the client to his attorney but extends as well to information communicated
by the client to the attorney by other means.
Nor can it be pretended that during the entire process, considering their past and
existing relations as counsel and client and, further, in view of the purpose for which
such falsified documents were prepared, no word at all passed between Paredes and
Sansaet on the subject matter of that criminal act. The clincher for this conclusion is
the undisputed fact that said documents were thereafter filed by Sansaet in behalf of
Paredes as annexes to the motion for reconsideration in the preliminary investigation
of the graft case before the Tanodbayan. 24 Also, the acts and words of the parties
during the period when the documents were being falsified were necessarily
confidential since Paredes would not have invited Sansaet to his house and allowed
him to witness the same except under conditions of secrecy and confidence.
2. It is postulated that despite such complicity of Sansaet at the instance of Paredes in
the criminal act for which the latter stands charged, a distinction must be made
between confidential communications relating to past crimes already committed, and
future crimes intended to be committed, by the client. Corollarily, it is admitted that
the announced intention of a client to commit a crime is not included within the
confidences which his attorney is bound to respect. Respondent court appears,
however, to believe that in the instant case it is dealing with a past crime, and that
respondent Sansaet is set to testify on alleged criminal acts of respondents Paredes
and Honrada that have already been committed and consummated.

The Court reprobates the last assumption which is flawed by a somewhat inaccurate
basis. It is true that by now, insofar as the falsifications to be testified to in
respondent court are concerned, those crimes were necessarily committed in the
past. But for the application of the attorney-client privilege, however, the period to be
considered is the date when the privileged communication was made by the client to
the attorney in relation to either a crime committed in the past or with respect to a
crime intended to be committed in the future. In other words, if the client seeks his
lawyer's advice with respect to a crime that the former has theretofore committed, he
is given the protection of a virtual confessional seal which the attorney-client privilege
declares cannot be broken by the attorney without the client's consent. The same
privileged confidentiality, however, does not attach with regard to a crime which a
client intends to commit thereafter or in the future and for purposes of which he
seeks the lawyer's advice.

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Statements and communications regarding the commission of a crime already

committed, made by a party who committed it, to an attorney, consulted as such,
are privileged communications. Contrarily, the unbroken stream of judicial dicta is to
the effect that communications between attorney and client having to do with the
client's contemplated criminal acts, or in aid or furtherance thereof, are not covered
by the cloak of privileges ordinarily existing in reference to communications between
attorney and client.

3. In the present cases, the testimony sought to be elicited from Sansate as state
witness are the communications made to him by physical acts and/or accompanying
words of Parades at the time he and Honrada, either with the active or passive
participation of Sansaet, were about to falsify, or in the process of falsifying, the
documents which were later filed in the Tanodbayan by Sansaet and culminated in
the criminal charges now pending in respondent Sandiganbayan. Clearly, therefore,
the confidential communications thus made by Paredes to Sansaet were for
purposes of and in reference to the crime of falsification which had not yet been
committed in the past by Paredes but which he, in confederacy with his present co-
respondents, later committed. Having been made for purposes of a future offense,
those communications are outside the pale of the attorney-client privilege.

4. Furthermore, Sansaet was himself a conspirator in the commission of that crime of

falsification which he, Paredes and Honrada concocted and foisted upon the
authorities. It is well settled that in order that a communication between a lawyer and
his client may be privileged, it must be for a lawful purpose or in furtherance of a
lawful end. The existence of an unlawful purpose prevents the privilege from
attaching. 26 In fact, it has also been pointed out to the Court that the "prosecution of
the honorable relation of attorney and client will not be permitted under the guise of
privilege, and every communication made to an attorney by a client for a criminal
purpose is a conspiracy or attempt at a conspiracy which is not only lawful to divulge,
but which the attorney under certain circumstances may be bound to disclose at
once in the interest of justice."
It is evident, therefore, that it was error for respondent Sandiganbayan to insist that
such unlawful communications intended for an illegal purpose contrived by
conspirators are nonetheless covered by the so-called mantle of privilege. To prevent
a conniving counsel from revealing the genesis of a crime which was later committed
pursuant to a conspiracy, because of the objection thereto of his conspiring client,
would be one of the worst travesties in the rules of evidence and practice in the noble
profession of law.
d. THE LAWYER CANNOT BE HURT PROFESSIONALLY OR PERSONALLY BY THE
PRIVILEGE.

Instances:
1. The privilege should not be applied so strictly that it will lead to prejudice the
lawyer. Therefore, if the lawyer stands to be disbarred because of that ACP,
he has to right to circumvent the privilege.
2. An attorney may circumvent the privilege if revealing information would
relieve him or her of accusations of wrongdoing.
3. Therefore, if the lawyer and client become involved in the controversy
themselves, the privilege will also NOT apply because the lawyer stands to
be protected by the privilege.

e. PRIVILEGE IS OWNED BY THE CLIENT. It is he who can invoke the privilege. If the
client waives the privilege, no one else including the attorney can invoke it. Hence it
the client is asked on cross-examination of his communications to his lawyer and
reveals the same there would be a waiver. There is also a waiver if the client does
not object to the attorney’s testimony.

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f. A client is not always a person; A CORPORATION CAN BE A CLIENT AND CAN

HAVE A RIGHT TO THE ATTORNEY-CLIENT PRIVILEGE.

g. DOES THE Attorney-client privilege stand to extend to MERE REQUEST OF

INFORMATION? NO.

SAURA V. AGGDEPPA
February 17, 2000

Lawyer was asked to give information regarding the sale fo real property.

HELD: The request for the information regarding the sale of the property and to
account for the proceeds is not a violation of the attorney-client privilege. Rule
130, Section 24 (b) of the Rules of Court providesXXXX

The information requested by petitioners is not privileged. The petitioners are only
asking for the disclosure of the amount of the sale or account for the proceeds.
Petitioners certainly have the right to ask for such information since they own the
property as co-heirs of the late Ramon E. Saura and as co-administrators of the
property. Hence, respondent cannot refuse to divulge such information to them and
hide behind the cloak of the attorney-client relationship.

Attorney-Client Privilege
Bar 2008

Q: A tugboat owned by Speedy Port Service, Inc. (SPS) sank in Manila Bay while helping tow
another vessel, drowning five (5) of the crew in the resulting shipwreck. At the maritime board
inquiry, the four (4) survivors testified. SPS engaged Atty. Ely to defend it against potential claims
and to sue the company owning the other vessel for damages to the tug. Ely obtained signed
statements from the survivors. He also interviewed other persons, in some instance making
memoranda. The heirs of the five (5) victims filed an action for damages against SPS.

Plaintiffs' counsel sent written interrogatories to Ely, asking whether statements of witnesses were
obtained; if written, copies were to be furnished; if oral, the exact provisions were to be set forth in
detail. Ely refused to comply, arguing that the documents and information asked are privileged
communication. Is the contention tenable? Explain.

ANSWER: The contention is not tenable. The documents and information sought to be disclosed
are not privileged. They are evidentiary matters which will eventually be disclosed during the trial.
What is privileged under sec. 24b of R 130 is (a) the communication made by the client to the
attorney, or (b) the advice given by the attorney, in the course of, or with the view to professional
employment. The information sought is neither a communication by the client to the attorney nor
is it an advice by the attorney to his client.

Physician-Patient Privilege – Rule 30, Sec. 24 (c)

A person authorized to practice medicine, surgery or obstetrics cannot in a CIVIL CASE, without
the consent of the patient, be examined as to
- Any advice or treatment given by him or
- Any information which he may have acquired in attending such patient in a professional
capacity, which information was necessary to enable him to act in capacity, and which would
blacken the reputation of the patient;
- This privilege belongs to the patient, so that it is only he that can claim or waive it. It is waivable
expressly or impliedly. It is impliedly waived like any other privilege rule. (Penn. Mutual Life Ins.
Co. v. Wiler, 100 Ind. 92)
- The waiver may be by a contract as in medical or life insurance

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- When the patient answers questions on cross examination, there is waiver

- Under Rule 28 ROC, 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.
This privilege does not apply when the doctor is presented as an expert witness and only
hypothetical problems were presented to him. (Lim vs. CA, 1992)

PRIEST-PENITENT PRIVILEGE COMMUNCATION

(d) 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;

BASIS OF THE PRIVILEGE: Do you know that priest-penitent privilege is directly taken from
Canon law? It is not a creature of law but a creature of the Catholic Church. Before the
reformation, England was roman catholic country and canon law was the law followed then.

CANON 21 "Let the priest who dares to make known the sins of his penitent be deposed", and
he goes on to say that the violator of this law should be made a life-long, ignominious
wanderer. Canon 21 of the Fourth Lateran Council (1215), binding on the whole Church, lays
down the obligation of secrecy in the following words: "Let the priest absolutely beware that he
does not by word or sign or by any manner whatever in any way betray the sinner: but if he
should happen to need wiser counsel let him cautiously seek the same without any mention
of person. For whoever shall dare to reveal a sin disclosed to him in the tribunal
of penance we decree that he shall be not only deposed from the priestly office but that he shall
also be sent into the confinement of a monastery to do perpetual penance"

The sacramental seal is inviolable. It is a crime for a confessor in any way to betray a penitent by
word or in any other manner or for any reason" (No. 2490). A priest, therefore, cannot break the
seal to save his own life, to protect his good name, to refute a false accusation, to save the life of
another, to aid the course of justice (like reporting a crime), or to avert a public calamity. He
cannot be compelled by law to disclose a person's confession or be bound by any oath he takes,
e.g. as a witness in a court trial. A priest cannot reveal the contents of a confession either directly,
by repeating the substance of what has been said, or indirectly, by some sign, suggestion, or
action. A Decree from the Holy Office (Nov. 18, 1682) mandated that confessors are forbidden,
even where there would be no revelation direct or indirect, to make any use of the knowledge
obtained in the confession that would "displease" the penitent or reveal his identity.

What happens if a priest violates the seal of confession? A confessor who directly violates the
seal of confession incurs an automatic excommunication reserved to the Apostolic See (the
POPE); if he does so only indirectly, he is to be punished in accord with the seriousness of the
offense." From the severity of the punishment, we can clearly see how sacred the sacramental
seal of confession is in the eyes of the Church.

Priest/Minister- Penitent Privilege

NOTE!
The privilege extends not only to a confession made by the penitent but also to any
advice given by the minister or priest. (remember: A minister or priest will not only be approached
in the sacrament of confession. They are spiritual advisers. Even if there is no sacrament of
confession in your religion, the privilege still applies because you still go to your spiritual leaders

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for advice) The confession and the advice must have been made or given pursuant to
the course of discipline of the denomination or sect to which the minister or priest belongs. Thus,
the minister or priest must be duly ordained or consecrated by his sect.

Not every communication made to a minister or priest is privileged. The communication

must be made pursuant to confession of sins, as clearly provided in the rule. The advice given as
a result of the confession must be made in the minister’s processional character or in his spiritual
capacity. Accordingly, where the penitent discussed business arrangements with the priest, the
privilege does not apply.

PUBLIC OFFICER PRIVILEGE

(e) 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.

What do you notice? It is a PERPETUAL PRIVILEGE and is one of the most loose exceptions or
privilege because of the last clause, “when the court finds the public interest would suffer by the
disclosure”. Therefore, you have to make prior disclose to the court so that they can determine if
the public interest would suffer.

This is what makes it different from the attorney-client privilege because in the latter, you can
ALWAYS invoke the attorney-client privilege communication. That cannot be revealed even to the
court! Diri, kelangan nimu i-reveal sa sa court bago pa mahibal-an nga public interest will suffer
by the disclosure. So it’s a very lose exception but a perpetual privilege imposed against the
public officer.

REMEMBER: Communications made to the public officer in official confidence are privileged
when the court finds that the disclosure would adversely affect the public interest. It is the interest
of the public that is sought to be protected by the rule. Hence, the disclosure or non-disclosure is
not dependent on the will of the officer but the determination of a competent court. The privilege
may be invoked not only during the term of office of the public officer but also after.

The privileged communications under the Rules of court find no application on matters falling
within the ambit of Constitutional guarantees. The constitution of the phils recognizes the right of
the people to information on matters of public concern, access to official records and documents
and papers pertaining to official acts, transactions or decisions as well as the government
research data used as basis for policy development subject to such limitation as may be
provided by law.

What is ABSOUTELY PRIVILEGED? Matters of National security or state secrets; A society may
not be able to conduct its business with total openness in matters of national interest. Therefore,
it should not be divulged.

What happens if public officer divulges matters affecting national interest or national security? He
can be charged with ESPIONAGE.

PROTECTION TO WHISTLE BLOWERS

There is also a school of thought or notion given the need to PROTECT THE
IDENTITY OF INDIVIDUAL TO PROVIDE INFORMATION TO THE GOVERNMENT. i.e.
government informants. We must remember that witnesses are always reluctant to testify
especially in criminal cases.

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That is why the government must also consider that this is not just a matter of
protecting its own secrets but by requiring confidentiality of information upon public
officers but there should also be information for those people who supply these
information to public officers speciall y in thematter of law enforcement.

However, in the way the rules of court are worded, WALA tay ingana nga privilege afforded to
whistle blowers but there is a provision which allows you to become a STATE WITNESS.

2. TESTIMONIAL PRIVILEGE
SEC. 25. Parental and filial privilege. – No person may be compelled to testify against his
parents, other direct ascendants, children or other direct descendants.

WHO MAY NOT BE COMPELLED TO TESTIFY?

1. Person against his parents or other direct ascendants (FILIAL PRIVILEGE)
2. Person against his children or other direct descendants (PARENTAL PRIVILEGE)

RATIONALE OF THE RULE

To preserve the harmonious relations between parent and child who could
ruptured through testifying in court. Furthermore, perjury may result because the parent
or the child may give false testimony to protect the other.

TESTIMONIAL PRIVILEGE NOT A TESTIMONIAL DISQUALIFICATION

Note that this is a testimonial privilege, not a testimonial disqualification (§22-24

of Rule 130). Here, the witness is the holder of the privilege and has the power to invoke
or waive the privilege. He cannot be compelled but he is not prohibited to testify. The
relative against whom he is testifying cannot invoke nor waive the privilege.

Can a parent testify against a child or a descendant? Yes. But he cannot be compelled.

Can a child testify against his parent or ascendant?Yes. But he cannot be compelled.

Nota Bene: under Art. 215. 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. There seem to be an inconsistency
with this provision right? However, there is an inconsistency between the Rules of court and
Family Code with respect to this privilege. Rules of Court prevail since it took effect in 1989 and is
made by the SC. While the Family Code took effect in 1989, and though substantive is procedural
in character.

INSTANCE WHEN A CHILD CAN BE COMPELLED TO TESTIFY

"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". (Art. 215 Family Code)

Hence, a descendant may be compelled to testify in a criminal case where:

1. the descendant-witness himself is the victim, or
2. the descendant-witness’s parent commits a crime against the descendant-witness’s
other parent.

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and the testimony of the descendant is indispensable. In such cases, the

descendant can be required to testify.

Note that an ascendant may not be compelled to testify even if it is a crime by the descendant
against the ascendant-witness. The ascendant-witness may testify voluntarily though.

“No person may be compelled”—it means you cannot be made to do something against your
will. However, Parental and filial privilege does not prohibit voluntary testimony or compelled
testimony against relatives by affinity or collateral relatives. The rule protects the person from
compelled testimony. It is only when he refuses to do so, that section 25 applies.

That is why for me that this provision is a toothless provision. If the rationale of the rule is to
preserve familial harmony, why is it that there is a qualification to the rule? Why is it that only
compulsion is guard against?

WHO ARE NOT COVERED AND MAY BE COMPELLED TO TESTIFY:

1) Relatives by affinity.
2) Brothers and sisters.
3) Aunts, uncles, nephews, nieces.
4) Cousins of whatever degree.
5) Other collateral relatives.

Parental and filial privilege does not prohibit voluntary testimony or compelled testimony
against relatives by affinity or collateral relatives.

APPLICABILITY OF THE RULE TO ADOPTED AND ADOPTER

It is believed that adopted and adopter are covered by the parental and filial
testimonial privilege rule but only insofar as the parent and child is concerned. It does not
extend to the direct ascendants of the adopter because the adoptive relation is between
the adopter and the adopted only. The reason for this opinion is the rationale behind the
privilege, which is to preserve harmonious relations between parent and child which
could be ruptured through testifying in court. Furthermore, perjury may result because
the parent or the child may give false testimony to protect the other.

3. ADMISSIONS AND CONFESSIONS

SEC. 26. Admissions of a party. – The act, declaration or omission of a party as to a relevant
fact may be given in evidence against him.

ADMISSIONS OF A PARTY

Review: JUDICIAL ADMISSIONS Section 4, Rule 129: An admission, verbal or written, made by
the party in the course of the proceedings in the same case, does not require proof. The
admission may be contradicted only by showing that it was made through palpable mistake or
that no such admission was made.

Judicial admission is defined as deliberate, clear, unequivocal statement by a

party about a concrete fact within that party's knowledge.

It is also called as “admission in judicio”. It must be deliberate because an

admission will not bind the party making it if it was made by mistake. It must be clear and
unequivocal and it must not admit to two or more interpretations.

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It is a formal concession in the pleadings or stipulations that can be

made by counsel or the party that is binding on them. Although a judicial admission is not
itself evidence, it has the effect of withdrawing a fact from contention. Judicial admission
therefore is dispenses proof.

EFFECT EXTRAJUDICIAL ADMISSION (Section 26)

If judicial admission has the effect of dispensing with proof, section 26 on
extrajudicial admissions has no such effect. But the effect immediately is that it may given
in evidence against you in the court of law (so be careful of what you say) this is similar to
the Miranda rights.

PRINCIPLE: An admission is subject to certain weight to be considered by the court if the

admission is AGAINST your interest and not to admit something that will further your own interest.

“ACT, DECLARATION OR OMISSION”

Act-- section 27—in criminal cases, an offer of compromise by the accused may be
received in evidence as an implied admission of guilt.

Declaration—you declare something as a fact. You can say it orally or in writing.

Omission—failure to act or to make a declaration when a person has to make such a

declaration. For example, section 32-- An act or declaration made in the presence and
within the hearing or observation of a party who does or says nothing when the act or
declaration is such as naturally to call for action or comment if not true, and when proper
and possible for him to do so, may be given in evidence against him.

Before we go to the specifics of section 26, let me jump first to section 36. HEARSAY RULE

SEC. 36. Testimony generally confined to personal knowledge; hearsay excluded. –

A witnesses can testify only to those facts which he knows of his personal knowledge;
that is, which are derived from his own perception, except as otherwise provided in these
rules.

HEARSAY EVIDENCE is evidence based on the reports of others the personal knowledge of a
witness and therefore generally not admissible as testimony.

REASON for not allowing it: lack of cross-examination-- The person who is being examined is not
the source of information. To make the information really relevant and admissible, it simply means
that whoever the source of the information is, the person who has personal knowledge of fact
must be the one who is brought to the witness stand to be cross-examined. That is the only way
for you to know the truth or falsity of the allegations.

The witness who testifies on hearsay can always say on cross-examination that what he said is
all he knows and the person who really knows the answer is the declarant.

Technically, an admission when offered as evidence against the party making it violates the
hearsay. Why?

Situation:
A and D are friends. They’re talking. Ana si A nga naa xay utang kay D. C then
files a case against A based on that loan of 50 K but actually, he has no evidence. No
proof nga naay utang. Now D testified against A. A objects based on the hearsay.

Technically, that is really hearsay. It was made out of the courtroom. You are

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testifying not based on your personal knowledge but based only on what was
told to you.

Can D really say that he knows A has an utang to D? NO he cannot. All he can
say is that “A said” nga naa xay utang kay C. he has no knowledge whatsoever as to the
contract between the parties other than the admission.

When that happens, the witness who sponsors the testimony in the witness stand merely
testifies on a recall of a matter of fact. The witness will not really be testifying based on his
personal knowledge. What the rule clearly says, “act, declaration or omission of a party used as
evidence against him”.

Section 26 is actually an exception to the rule that the witness can only testify only to
facts based on his personal knowledge and derived from his own perception. An admission made
out of court by a party can be used as evidence against the said party.

ARE ALL TYPES OF ADMISSIONS ADMISSIBLE AS EVIDENCE AGAINST SUCH PARTY

MAKING IT?

NO, an admission can also be admitted as to testimonies favorable to the party making it.
An admission can be an admission per se, which is the subject of section 26 and a self-serving
admission.

Situation:
A and B are friends. A goes to B and A says nga nakabayad na xa sa iyang
utang. C files a case against A and A wants to present B as witness to say nga nabayaran
na niya iyang utang kay C.

Answer: NO. That is a self-serving admission.

If the rule were otherwise, remember in a criminal case, sometimes the superiority of
witnesses can be a factor for the court to give weight to your testimony. Thefore, applied
in this case, if we rule otherwise, A will not only go to b but he will go to D, E, F, G,etc.
when the creditor C files a case against him, he will present these witnesses to support
his allegation of payment. If the rule were otherwise, you can PLANT EVIDENCE
because it is a self-serving admission.

Therefore, AN OBJECTION MAY BE RAISED AS TO THE ADMISSIBILITY OF ACTS,

OMISSIONS, OR DECLARATIONS FAVORABLE TO THE PARTY MAKING IT ON THE
GROUNDS OF THAT THESE ARE SELF-SERVING AODS. The argument is “Rule 130 Section
26 ONLY allows evidence of acts, omissions and declarations prejudicial to the party making such
declaration.

SELF-SERVING EVIDENCE

Self-serving evidence is evidence made by a party out of court at one time; it

does not include a party's testimony as a witness in court. It is excluded on the same
ground as any hearsay evidence that is the lack of opportunity for cross-examination by
the adverse party and on the consideration that its admission would open the door to
fraud and to fabrication of testimony. On the other hand, a party's testimony in court is
sworn and affords the other party the opportunity for cross-examination.
It is simply an admission favorable to the party making it. (Lichauco v. Atlantic
Gulf & Pacific Co., 84 Phil. 342)

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The concept of self-serving evidence does not include a party’s testimony or

admissions as a witness in court. Whatever you say in court, it does not matter if
whatever you say is self-serving or not.

REQUISITES OF SELF-SERVING EVIDENCE

1. The testimony is favorable to the declarant
2. It is made extrajudicially and
3. It is made or appears to have been made in anticipation of litigation.

How do you know? You can’t prove the state of the mind of the person.

REASONS why self-serving or favorable admissions made out of court not admissible:
1) A man may be safely believed if he declares against his own interest, but not if he
advocates his own interest. (Lichauco v. Atlantic Gulf & Pacific Co., 84 Phil. 342)
2) It is excluded on the same ground as any hearsay evidence, that, the lack of
opportunity for cross-examination by the adverse party. (National Development Co.,
v. Workmen's Compensation Commission, 19 SCRA 865)

SELF-SERVING V. FAVORABLE ADMISSION

Not all favorable admissions can be technically considered self-serving. If it is an

admission, although favorable to the declarant but it is made in open court with full opportunity for
the adverse party to cross-examine the witness, that is not considered self-serving admission
although it may be favorable.

When self-serving or favorable admissions become admissible:

1) If made in open court
2) giving full opportunity to the adverse party
3) to exercise his right of cross-examination.

HEIRS OF CLEMENA V. HEIRS OF BIEN

G.R. No. 155508 September 11, 2006

Petitioners' next proposition, i.e., that Gregorio Clemeña's testimony was self-serving and
therefore an improper basis for the damages awarded to respondents, is just as
unworthy of this Court's favorable consideration.

"Self-serving evidence," perhaps owing to its descriptive formulation, is a concept much

misunderstood. Not infrequently, the term is employed as a weapon to devalue and
discredit a party's testimony favorable to his cause. That, it seems, is the sense in which
petitioners are using it now. This is a grave error. "Self-serving evidence" is not to be
taken literally to mean any evidence that serves its proponent's interest. 29 The term, if
used with any legal sense, refers only to acts or declarations made by a party in his own
interest at some place and time out of court, and it does not include testimony that he
gives as a witness in court. 30 Evidence of this sort is excluded on the same ground as
any hearsay evidence, that is, lack of opportunity for cross-examination by the adverse
party and on the consideration that its admission would open the door to fraud and
fabrication.31 In contrast, a party's testimony in court is sworn and subject to cross-
examination by the other party,32 and therefore, not susceptible to an objection on the
ground that it is self-serving.

At any rate, for all their protestations against the use of Gregorio Clemeña's testimony,
petitioners never once alleged, much less tried to show, that his testimony was
inaccurate or untrue. As already observed, petitioners' objection is founded solely on the
mere fact that he, being a plaintiff, was a witness interested in the outcome of the case.

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Now, it is true that a party's interest may to some extent affect his credibility
as a witness.33 To insist otherwise would be the height of naiveté. Nonetheless, the Court
cannot subscribe to the view, implicit in petitioners' argument, that a party'stestimony
favorable to himself must be disregarded on account solely of his interest in the case.
Our justice system will not survive such a rule for obdurate cynicism on the part of a court
is just as odious to the administration of justice as utter gullibility.

Moreover, this Court held in National Development Company v. Workmen's

Compensation Commission34 that interest alone is not a ground for disregarding a party's
testimony.35 Elsewhere it has been said that the interest of a witness does not ipso
facto deprive his testimony of probative force or require it to be disregarded, and the trier
of facts is entitled to accept as much of the witness' testimony as he finds credible and to
reject the rest.36 To these dicta we give our complete assent. Petitioners' arguments to
the contrary must be rejected.

REQUISITES OF ADMISSIBILITY OF ADMISSIONS

1. It involves matters of act and not law; (you cannot admit law. Law is not subject to
stipulation and therefore, admission must necessarily be limited to admissions on fact;)
2. must be categorical and definite
3. must be Knowingly and voluntarily made and
4. Must be adverse to his interest  example, with respect to admissions, his admissions
must not be self-serving.

Such admission may be received in evidence not only against the party who made it or his
successors-in-interest but also against third persons. (Viacrucis vs. CA, 1986)

The silence of an accused under custody or his failure to deny statements by another
implicating him in a crime cannot be considered as a tacit confession of his participation in
the commission of the crime. (People vs. Alegre, 1979)

DISTINCTION BETWEEN RULE 129 SEC. 4 V. RULE 130 SEC. 26

First is a JUDICIAL ADMISSION, which is conclusive upon the admitter whether in writing
or oral. This applies to civil, criminal cases and even special proceedings.

Second is an EXTRAJUDICIAL ADMISSION. Under this rule, the admission is admissible

only if it is against the interest of the admitter. (otherwise, it is a self-serving statement)

Example: Flight is considered a disserving act, since it is prejudicial to the interest of the
accused. Flight is considered as circumstantial evidence of the guilt of the accused. BUT
non-flight cannot be used as evidence to prove his innocence, because that will be
considered as an act that is favorable to the interest of the accused.

JUDICIAL ADMISSIONS; Formal and informal

Formal judicial admissions are those made in writing in the motions, pleadings
and by virtue of stipulation of facts. Informal judicial admissions are those made orally or
are made in the course of the testimony of the party or his witness or in depositions or
affidavits or statement of counsel.

EXTRAJUDICIAL ADMISSIONS; Express or implied

Express means the admission was made in a definite and unequivocal language.
Admission is implied if it is merely inferred from the act, declaration or silence of the
person.

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Examples of implied extrajudicial admissions:

1. LACHES

Laches has been defined as the failure or neglect, for an unreasonable and
unexplained length of time, to do that which, by exercising due diligence could or should
have been done earlier. It is negligence or omission to assert a right within a reasonable
time, warranting the presumption that the party entitled to assert his right has either
abandoned or declined to assert it.

The doctrine of laches or of "stale demands" is based on grounds of public policy which
requires, for the peace of society, the discouragement of stale claims. Unlike the statute
of limitations, laches is not a mere question of time but is principally a question of the
inequity or unfairness of permitting a stale right or claim to be enforced or asserted
(Bergado vs. Court of Appeals, 173 SCRA 497).

2. FLIGHT

Flight strongly indicates a guilty mind and betrays the existence of a guilty
conscience. (People v. Herrera) Fatetur facinus is qui judicium fugit. He who flees from
trial confesses his guilt.

3. ADMISISON BY SILENCE (Rule 130, section 32)

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

4. OFFER OF COMPROMISE (Rule 130, section 27)

An offer of compromise by the accused may be received in evidence as an implied

admission. This is the general rule under the law. But it actually underscores the
inconsistent position of the law because compromises are encouraged. It will de-clog the
dockets of the courts.

Suppose, napasanginlan ka na nangawat. So ikaw, what you do is that you offer a

settlement. You will offer this much. How does the law treat that? An offer of compromise
by the accused may be received in evidence as an implied admission. So it actually
discourages compromises.

Remember, if you offer a compromise in criminal cases, it has both criminal and civil
aspect. If the civil aspect is subjected to a compromise, in all probability it will not result to
the dismissal of the criminal aspect but actually, by way of effect, it will lead to the same
thing—the dismissal of the case. Why? Because there will be no witnesses anymore. If
you cause the complainant to desist because of the compromise agreement, the judge
will simply say that “the civil aspect of this case is terminated”, but what about the fact of
the criminal aspect? The judge will say, “because of lack of interest of the complainant
and other instrumental witnesses, there will be a failure of the prosecution to establish the
guilt of the accused beyond reasonable doubt and therefore, they cannot prove this case,
the criminal aspect is also hereby dismissed”.

This is NOT a mandatory principle. This is not always the case.

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CASES OF IMPLIED ADMISSION OF GUILT

REPEATED OFFER
US V. TORRES
34 PHIL 994 (1916)

The repeated offer of the conspirator constitutes a strong indication and an implied
admission of guilt of the co-conspirator and the other appellants in this case.

LOVE LETTER; Letter of forgiveness

PEOPLE V. ABADIES
July 11, 2002

Accused-appellant likewise contends that there exists no factual basis for the trial
court to consider his plea of forgiveness in his letter to complainant as an implied
admission of guilt.

The appeal is not impressed with merit.

A cursory reading of the relevant parts of the letter will readily show that accused-
appellant was indeed seeking pardon for his misdeeds. Some of the pertinent portions
read as follows: "I made this letter to ask your 'forgiveness.’ x x x Alam mo bang sobra-
sobra na ang pagsisisi ko sa ginawa kong iyon. x x x Parang awa mo na Ne hirap na
hirap na ako at ang lahat ay buong puso ko ng pinagsisisihan. Patawarin mo na ako
anak. x x x."

There is no iota of doubt that accused-appellant was asking forgiveness for having
committed the acts with which he now stands charged.

Settled is the rule that in criminal cases, except those involving quasi-offenses or those
allowed by law to be settled through mutual concessions, an offer of compromise by the
accused may be received in evidence as an implied admission of guilt.

Evidently, no one would ask for forgiveness unless he had committed some wrong and a
plea for forgiveness may be considered as analogous to an attempt to compromise.
Under the circumstances, accused-appellant’s plea of forgiveness should be received as
an implied admission of guilt.

PLEADING FOR FORGIVENESS

PEOPLE V. ESPANOL
February 13,, 2009

Another piece of evidence against appellant was his silence when his wife’s nephew
asked him why he killed his wife. His silence on this accusation is deemed an admission
under Section 32, Rule 130 of the Rules of Court:
xxxxxxx

In addition, appellant’s act of pleading for his sister-in-law’s forgiveness may be

considered as analogous to an attempt to compromise, which in turn can be received as
an implied admission of guilt

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OFFER OF MARRIAGE IN RAPE CASES

PEOPLE V. BULOS
G.R. No. 123542, June 26, 2001

Although the marriage of the accused in a rape case extinguishes the penal action, an
offer of marriage is, generally speaking, an admission of guilt.

WITHDRAWAL OF APPEAL and ACCEPTANCE OF LOWER PENALTY

PEOPLE V. ARSENIO
G.R. No. L-57025 April 6, 1990

The withdrawal of his appeal and acceptance of the lowered penalty pursuant to the
1987 Constitution which in Our mind is an implied admission of guilt. This is an
admission not of the crime with the lowered penalty but with the crime as charged.

Lesson: if you are the accused, do not show any remorse or regret. 

ATTEMPT TO INFLUENCE WITNESS

This is not an implied admission of guilt or innocence but an admission of the weakness
of the party’s case, whether as a plaintiff or defendant. an attempt to influence witnesses
to testify or not to testify in your behalf but with false testimony, that is an implied
admission of the weakness of the case.

CHANGE IN FINANCIAL CONDITION

A change for the better in the financial condition of a person accused of a crime involving
money, shortly or immediately after the date of the crime may be shown upon the theory
that sudden or unexplained possession of funds has a tendency to connect said person
to the said crime.

SILENCE AS AN ADMISSION OF GUILT

ESTRADA V. DESIERTO
[G.R. Nos. 146710-15. April 3, 2001]

A complete analysis of any hearsay problem requires that we further determine whether
the hearsay evidence is one exempted from the rules of exclusion. A more circumspect
examination of our rules of exclusion will show that they do not cover admissions of a
party and the Angara Diary belongs to this class. Section 26 of Rule 130 provides that
“the act, declaration or omission of a party as to a relevant fact may be given in evidence
against him.” It has long been settled that these admissions are admissible even if they
are hearsay. Retired Justice Oscar Herrera of the Court of Appeals cites the various
authorities who explain why admissions are not covered by the hearsay rule:

“Wigmore, after pointing out that the party’s declaration has generally the probative value
of any other person’s asssertion, argued that it had a special value when offered against
the party. In that circumstance, the admission discredits the party’s statement with the
present claim asserted in pleadings and testimony, much like a witness impeached by
contradictory statements. Moreover, he continued,admissions pass the gauntlet of the
hearsay rule, which requires that extrajudicial assertions be excluded if there was no
opportunity for the opponent to cross-examine because it is the opponent’s own

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declaration, and ‘he does not need to cross examine himself.’ Wigmore then
added that the Hearsay Rule is satisfied since the party now as opponent has the full
opportunity to put himself on the stand and explain his former assertion. (Wigmore on
evidence, Sec. 1048 (Chadbourn Rev. 1972), cited in Sec. 154, McCormick)

According to Morgan: ‘The admissibility of an admission made by the party himself rests
not upon any notion that the circumstances in which it was made furnish the trier means
of evaluating it fairly, but upon the adversary theory of litigation. A party can hardly object
that he had no opportunity to cross-examine himself or that he is unworthy of credence
save when speaking under sanction of an oath.’

A man’s acts, conduct, and declaration, wherever made, if voluntary, are admissible
against him, for the reason that it is fair to presume that they correspond with the truth,
and it is his fault if they do not. (U.S. vs. Ching Po, 23 Phil. 578, 583).”

The Angara Diary contains direct statements of petitioner which can be categorized
as admissions of a party: his proposal for a snap presidential election where he would
not be a candidate; his statement that he only wanted the five-day period promised by
Chief of Staff Angelo Reyes; his statements that he would leave by Monday if the second
envelope would be opened by Monday and “Pagod na pagod na ako. Ayoko na,
masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very
tired. I don’t want any more of this – it’s too painful. I’m tired of the red tape, the
bureaucracy, the intrigue). I just want to clear my name, then I will go.” We noted that
days before, petitioner had repeatedly declared that he would not resign despite the
growing clamor for his resignation. The reason for the meltdown is obvious - - - his will
not to resign has wilted.

It is, however, argued that the Angara Diary is not the diary of the petitioner, hence,
non-binding on him. The argument overlooks the doctrine of adoptive admission. An
adoptive admission is a party’s reaction to a statement or action by another person when
it is reasonable to treat the party’s reaction as an admission of something stated or
implied by the other person. Jones explains that the “basis for admissibility
of admissions made vicariously is that arising from the ratification or adoption by the
party of the statements which the other person had made.” To use the blunt language of
Mueller and Kirkpatrick, “this process of attribution is not mumbo jumbo but common
sense. In the Angara Diary, the options of the petitioner started to dwindle when the
armed forces withdrew its support from him as President and commander-in-chief. Thus,
Executive Secretary Angara had to ask Senate President Pimentel to advise petitioner to
consider the option of “dignified exit or resignation.” Petitioner did not object to the
suggested option but simply said he could never leave the country. Petitioner’s silence
on this and other related suggestions can be taken as an admission by him.

ADMISSIONS; DECLARATION AGAINST INTEREST; JUDICIAL ADMISSION ;

CONFESSIONS

Admissions of a party should not be confused with declarations against interest, judicial
admission and confessions.

Admission distinguished from declaration against interest. – An admission is

distinguishable from a declaration against interest in several respects. The admission is
primary evidence and is receivable, although the declarant is available as a witness; it is
competent only when the declarant, or someone identified in legal interest with him, is a
party to the action; and need not have been considered by the declarant as opposed to
his interest at the time when it was made. The declaration against interest is in the
nature of secondary evidence, receivable only when the declarant is unavailable as a
witness; it is competent in any action to which it is relevant, although the declarant is not

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a party to, or in privity with, any party to the action; and it must have been,
when made, to the knowledge of the declarant, against his obvious and real
interest. (VIII Francisco, Evidence, 304 [1997 ed.])

Admission distinguished from confession.- The term admission is distinguished from that
of confession. The former is applied to civil transactions and to matters of fact in criminal
cases not involving criminal intent, the latter to acknowledgements of guilt in crimnal
cases. (id., p. 303)

Judicial and extra-judicial admission defined.- A judicial admission is one so made in

pleadings filed or in the progress of a trial as to dispense with the introduction of
evidence otherwise necessary to dispense with some rules of practice necessary to be
observed and complied with.

Extra-judicial admission is one made out of court.

The most important distinction between judicial and other admissions, is that strictly,
judicial admissions are conclusive upon the party making them, while other admissions
are, as a rule and where the elements of estoppel are not present, disputable.

SEC. 27. Offer of compromise not admissible. – In civil cases, an offer of compromise is not an
admission of any liability, and is not admissible in evidence against the offerror.
In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by
law to be compromised, an offer of compromise by the accused may be received in evidence as
an implied admission of guilt.
A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to a lesser offense, is not
admissible in evidence against the accused who made the plea or offer.
An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is
not admissible in evidence as proof of civil or criminal liability for the injury.

1st paragraph: in civil cases, an offer of compromise is not an admission of any liability, and is not
admissible in evidence against the offeror.

OFFER OF COMPROMISE IN CIVIL CASES

In civil cases, an offer of compromise is not an admission of any liability, and is

not an admission against the offeror.

Note that the offer of compromise in civil cases is not admissible only as
evidence of liability. If the offer of compromise is offered as evidence on other matters
(e.g. amount of liability), then the evidence is admissible.

OFFER OF COMPROMISE IN CRIMINAL CASES

1. An offer of compromise by the accused may be received in evidence as an implied

admission of guilt. However, the accused may be permitted to prove that such offer was
not made under consciousness of guilt but to avoid the risks of criminal actions against
him (US vs. Maqui, 27 Phil 97).

2. There is no implied admission of guilt if the offer of compromise is in relation to

a. quasi-offenses (criminal negligence); or
b. In those cases allowed by law to be compromised (e.g. BIR can compromise tax
cases. Sec. 204 RA 8424)

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PLEA OF GUILTY LATER WITHDRAWN; UNACCEPTED OFFER OF PLEA OF

GUILTY TO A LESSER OFFENSE

A plea of guilty later withdrawn is not admissible in evidence against the accused that
made the plea and an unaccepted plea of guilty to a lesser offense is not admissible in
evidence against the accused who made the plea or offer. (Cross-reference: Rule 116,
Sec. 1(f), Rule 118, Secs. 1 and 2)

AN OFFER TO PAY OR THE ACTUAL PAYMENT OF MEDICAL, HOSPITAL OR OTHER

EXPENSES

An offer to pay or the payment of medical, hospital or other expenses occasioned by an

injury is not admissible in evidence as proof of civil or criminal liability for the injured
party. Such humanitarian acts or charitable responses should be encouraged and
rewarded, instead of being discouraged or penalized.

Remember: there’s really nothing much here. Just remember when it is admissible or when is it
an implied admission of guilt.

What I am interested is the last paragraph: “…An offer to pay or the payment of medical, hospital
or other expenses occasioned by an injury is not admissible in evidence as proof of civil or
criminal liability for the injury.” (Good Samaritan Rule)

GOOD SAMARITAN RULE

The Good Samaritan Rule: An offer to pay or the payment of medical, hospital or other
expenses occasioned by an injury is not admissible in evidence as proof of civil or
criminal liability for the injury.

Under torts and damages, if you do something like that, immediately after the injury, it will
effectively lessen or mitigate the damages that may be ordered by the court.

The Good Samaritan rule applies both to civil and criminal cases.

CASES

(People vs. Godoy1995)-- It has long been held that in cases of public crimes, the
accused is permitted to show that the offer was not made under a consciousness of guilt
but merely to avoid the inconvenience of imprisonment of for some other reason which
would justify a claim by the accused that the offer was not in truth an admission of his
guilt or an attempt to avoid the legal consequences which would ordinarily ensue
therefrom.

A plea of forgiveness may be considered as analogous to an attempt to compromise.

(People vs. De Guzman, 1996)

An offer to compromise does not require that a criminal complaint be first filed before the
offer can be received as evidence against the offeror. (People vs. Yparriguirre, 1997)

Veradero v. Insular Lumber, 46 Phil. 176 (1924) – evidence on an offer to compromise is

admissible even in civil cases if it is to prove amount of a liability and not the liability
itself.

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US v. Torres, 34 Phil. 994 (1916) – offer of compromise in criminal cases

inadmissible when accused shows that it was made not under a consciousness of guilt,
but merely to avoid inconvenience of imprisonment or for some other reason; in this
case, the law allowed compromise, thus the offer to compromise is not admitted.

People v. Godoy, 250 SCRA 676 (1995) – offer to compromise made by a person other
than the accused is inadmissible if the accused repudiated the actions of such person by
raising the trial court’s admission of evidence of such offer as an error.

People v. de Guzman, 265 SCRA 228 (1996) – the offer to compromise made by a
person other than the accused was admitted in evidence because the accused failed to
repudiate such acts by raising the trial court’s admission of evidence on such offer as an
error.

People v. Yparriguirre, 268 SCRA 35 (1997) – whether a complaint has been filed or not
is irrelevant as to the admissibility of an offer to compromise.

People vs. Amiscua (1971) - In a rape case, an offer to compromise for a monetary
consideration, and not to marry the victim, is an implied admission of guilt.

People vs. Valdez (1987) - An offer of marriage by the accused during the investigation
of the rape case is also an admission of guilt.

MEANING OF COMRPOMISE

Article 2028 of the Civil Code defines a compromise as a contract whereby the parties,
by making reciprocal concessions, avoid litigation or put an end to one already
commenced.

The purpose of compromise is to settle the claims of the parties and bar all future
disputes and controversies.

Article 2034. There may be a compromise upon the civil liability arising from an offense;
but such compromise shall not extinguish the public action for the imposition of the legal
penalty.

CASES WHERE NO COMPROMISE IS ALLOWED

A.M. No. 02-11-10-SC March 4, 2003 Section 16. Prohibited compromise. - The court-shall not
allow compromise on prohibited matters, such as the following:
(a) The civil status of persons;
(b) The validity of a marriage or of a legal separation;
(c) Any ground for legal separation;
(d) Future support; current support is subject to compromise because there is no res
judicata in that case.
(e) The jurisdiction of courts; and
(f) Future legitime—the Sale of future inheritance as well is not subject to compromise.
This is against public policy. Succession opens from the moment death only.

OFFER OF COMRPOMISE IN CRIMINAL CASES:

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“In criminal cases, except those involving quasi-offenses (criminal negligence)

or those allowed by law to be compromised, an offer of compromise by the accused may
be received in evidence as an implied admission of guilt.”

Examples: BIR can compromise tax cases. Sec. 204 RA 8424

The Commissioner may compromise the payment of any internal revenue tax, when:
i. A reasonable doubt as to the validity of the claim against the taxpayer exists; or
ii. The financial position of the taxpayer demonstrates a clear inability to pay the
assessed tax.

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

RES INTER ALIOS ACTA

The expression if fully expressed reads: res inter alios acta alteri nocere non debet which
literally means that “things done to strangers ought not to injure those who are not parties to
them” (Black’s, 5th Ed., 1178).

BRANCHES

The res inter alios acta rule has two branches, namely:
(a) the rights of a party cannot be prejudiced by an act, declaration, or omission or
another (Sec. 28, Rule 130, Rules of Court)
(b) 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; but it may be
received to prove a specific intent or knowledge; identity, plan, system, scheme,
habit, custom or usage, and the like. (Sec. 34, Rule 132, Rules of Court).

The 1st part speak of Statements made or accomplished between parties cannot prejudice a third
party. The same rule applies to contracts. Contracts are binding only between contracting parties,
their heirs, assigns or successors in interest. It does not allow binding a third person with the sole
exception, if this stipulation benefits a 3 rd person or a stipulation pour autrui. The 1 st part of the res
inter alios acta rule actually uses the same formula.

Here it is essential that:

1. The statements made or accomplished between 2 parties must be prejudicial to that third
party.
2. That the rights of a party cannot be prejudiced by an act, declaration, or omission of
another, except as hereinafter provided.

The first branch is a very simple and logical rule which holds that whatever one says or does or
omits to do should only affect him but should not affect or prejudice others. In other words, both
common reason and fairness demand that a man’s actions and declarations should affect him
alone and should not affect others. Thus, if X makes a statement before the media admitting his
participation in a previous murder, his statement is admissible against him under Sec. 26 of Rule
130. The rest of his statement pointing to Y and Z as co-participants in the murder are not
admissible against Y and Z under the first branch of the res inter alios acta rule in Sec. 28 of Rule
130. Under this rule, the statement of X should not affect or prejudice Y and Z.

EXCEPTIONS TO RES INTER ALIOS ACTA:

1) When there is a rational similarity or resemblance between the conditions giving rise to
the fact offered and the circumstances surrounding the issue or fact to be proved. (Cruz,
et al., v. Court of Appeals, et al., G.R. No. 126713, prom. July 27, 1998)

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2) In actions based on fraud and deceit, because it sheds light on the state of mind or
knowledge of a person; it provides insight into such person's motive or intent; it uncovers
a scheme, design or plan; or it reveals a mistake. (Cruz, supra)

3) (VICARIOUS ADMISSIONS)- The rights of a party may be prejudiced by the act,

declaration or omission of another when between the party making the admission and
against whom it is offered there exists a relation of:
a) Partnership;(section 29)
b) Agency; (section 29)
c) Joint interest; (section 29)
d) Conspiracy; or (section 30)
e) Privity (section 31)
CASES

People v. Tena
215 SCRA 43 (1992)

Facts: Accused was convicted of robbery with homicide on the basis of an extra-judicial
confession of another admitting his participation in the offense. Held: This is not a co-
conspirator’s statement because there was no evidence of conspiracy independent of the
extra-judicial confession. Furthermore, the confession was executed long after the
supposed conspiracy had ended.

Escolin: Had the co-conspirator taken the witness stand and pointed to his co-accused,
the testimony would have been admissible. In this case, what was presented was a
merely his affidavit.

People v. Alegre, 94 SCRA 109 (1979) – absent independent evidence of conspiracy, extra-
judicial confession of the accused is not admissible against others

People v. Raquel, 265 SCRA 248 (1996) – extra-judicial confession of accused can not be used
to implicate co-accused unless repeated in open court.

People vs. Valero

(1982)

Facts: Michael and Annabel, children of Ceferino Velasco, died of poisoning after eating
bread containing endrin, a commercial insecticide. Their sister Imelda would have also
died if not for the timely medical assistance given to her. At about the same time, 3
puppies of Velasco under the balcony where the children ate the bread also died of
poisoning. Earlier that morning, Velasco was seen throwing poisoned rats in the river
near his house.

The evidence of the prosecution shows that the poisoned bread was given to the children
by Alfonso Valero alias Pipe, deaf-mute brother of accused Lucila Valero, and that it was
Lucila who gave Alfonso the bread to be delivered to the children. Lucila denies the
allegation. The evidence of the defense tends to show that the children might have eaten
one of the sliced poisoned bread used by their father in poisoning the rats.

3/9 witnesses for the prosecution:

1. Rodolfo Quilang – testified that he saw Lucila deliver something wrapped in a piece
of paper to Alfonso and instructed him by sign language to deliver the same to the
Velasco children. He never saw what was inside the piece of paper. His testimony as

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to WON he saw the parcel delivered to the children was a series of contradictions.
He is what the defense counsel calls and “eleventh-hour witness
2. Federico Jaime and Ceferino Velasco – did not see Lucila deliver to Alfonso the
alleged parcel, as well as the alleged instruction. Both claimed that they learned the
information from Pipe after interviewing him by means of sign language. Testimony of
Jaime was confusing. There is nothing in the testimony of Velasco indicating that
Alfonso pointed to Lucila as the source of the poisoned bread.

Issue: WON the testimonies of Jaime and Velasco may be admitted

Held: No. The evidence is pure hearsay. It violates the principle of res inter alios acta.
Alfonso, who was the source of the information, was never presented as a witness either
for the defense or the prosecution. Testimony of Velasco cannot be considered as part of
res gestae because when the information was allegedly obtained by Velasco from
Alfonso, nobody was poisoned yet. With regard to the testimony of Jaime, there is no
showing that the revelation was made by Alfonso under the influence of a startling
occurrence.

The failure of the defense counsel to object to the presentation of incompetent evidence
does not give such evidence probative value. The lack of objection may make any
incompetent evidence admissible. But admissibility of evidence should not be equated
with weight of evidence. Hearsay evidence whether objected to or not has no probative
value

----------------------------o0o0---------------------
The first branch of the rule admits of certain exception, to wit:

(a) Admission by a co-partner or agent (Sec. 29, Rule 130);

(b) Admission by a co-conspirator (Sec. 30, Rule 130; and
(c) Admission by privies (Sec. 31, Rule 130).

NOTE: Note that all the exceptions to res inter alios acta require that the relationship be proven
by evidence independent of the act or declaration sought to be admitted.

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

Remember: for this rule to apply, you have to prove the EXISTENCE of a partnership or agency
FIRST! You cannot prove it by that same act or declaration; it has to be another act or
declaration. Prove the partnership first before you are allowed to prove the admission!

partner or agent – establish partnership by fact other than the admission of the partner such as
the certificate of registration of partnership, document (agreement/contract stating such
partnership [ex. Bank loan]), or testimony (as to its dealings); partner acting within scope of
authority; and during the existence of the relationship. Take note of those requisites as they more
or less apply to the rest, save for certain words.

Agency – agency must be established by facts other than the admission. How constituted?
Through a GPA (admi), specific/ownership (SPA). Show authority. Act was made during the
existence of the agent-principal relationship. Same as in joint debtor, interest, owner (they have
commonality of interest in all)

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Agent – unity of interest because he affirms and confirms principal’s acts; during
agency’s existence and within the scope of his authority (otherwise, ultra vires; subject to
ratification subsequent to the act)

RULE ON ADMISSION BY CO-PARTNER OR AGENT:

1) The act or declaration of a partner or

2) agent within the scope of his authority and during the existence of the partnership or
agency,
3) may be given in evidence against such party
4) after the partnership or agency
a) is shown by evidence [(testimonial or documentary, which may be 2ndary evidence)]
b) other than such act or declaration.

5) The same rule applies to the act or declaration of a joint owner, joint debtor, or other
person jointly interested with the party. (Sec. 29, Rule 130, ROC arrangement and
numbering supplied)

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

Same rule: prove the conspiracy first.

RULE ON ADMISSION BY CONSPIRATOR

1) The act or declaration of a conspirator
2) relating to the conspiracy and during its existence,
3) may be given in evidence against the co-conspirator
4) after the conspiracy
a) is shown by evidence (Circumstantial Evidence- cannot be proven by documentary
evidence, since conspirators do not normally reduce their agreement in writing)
b) other than such act or declaration. (Sec. 30, Rule 130)

*This refers to extrajudicial acts and declarations of a conspirator and not to his testimony as a
witness in the trial. (People v. Atencio, L-222518, Jan. 17, 1968)

HOW TO PROVE CONSPIRACY

Conspiracy cannot be proven by written evidence. It is shown by circumstantial evidence

or by the conduct of the accused.

Direct proof is not essential to prove conspiracy. 19 A conspiracy may be inferred without
need of showing that the parties actually came together and agreed in express terms to
enter into and pursue a common design.

The doctrine is well settled that conspiracy need not be proved by direct evidence of prior
agreement to commit the crime, Very seldom would such prior agreement be
demonstrable since, in the nature of things, criminal undertakings are only rarely
documented by agreements in writing.

GENERAL RULE: extrajudicial statements of an accused implicating a co-accused may not be

utilized against the latter

EXCEPTIONS to the rule that extrajudicial statements of an accused implicating a co-accused

may not be utilized against the latter:

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(1) the co-accused impliedly acquiesced in or adopted the confession by not

questioning its truthfulness;
(2) the accused persons voluntarily and independently executed identical confessions
without collusion and without contradiction by the others present;
(3) the accused admitted the facts after being apprised of the confession;
(4) if they are charged as co-conspirators of the crime which was confessed by 1 of the
accused and the confession is used only as a corroborating evidence;
(5) the confession is used as circumstantial evidence to show the probability of participation
by the co-conspirator;
(6) the confessant testified for his co-defendant;
(7) the co-conspirator’s extrajudicial confession is corroborated by other evidence on record.
(People vs. Raquel, 1996)

When does conspiracy exist?

Conspiracy exists when two or more persons come to an agreement concerning the commission
of a felony and decide to commit it (Art. 8, RPC). Once conspiracy is proven, the act of one is the
act of all. The statement therefore of one may be admitted against the other co-conspirators as
an exception to the rule of res inter alios acta.

Requisites for admissibility

For the exception to apply, the following requisites must concur:
(a) The declaration or act be made or done during the existence of the conspiracy;
(b) The declaration or act must relate to the conspiracy; and
(c) The conspiracy must be shown by evidence other than the declaration or act.

Cases
People vs. Serrano
This rule applies only to extrajudicial acts or statements and not to testimony given on the witness
stand at the trial where the party adversely affected thereby has the opportunity to cross-examine
the declarant.

An admission by a conspirator is admissible against his co-conspirator if:

1. Such conspiracy is shown by evidence aliunde
2. Admission was made during the existence of the conspiracy
3. Admission relates to the conspiracy itself

These are not required in admissions during the trial as the co-accused can examine the
declarant.
 Judicial admissions - admissions after the conspiracy has ended
 Existence of conspiracy may be inferred from
1. Acts of the accused
2. Confessions of the accused
3. By prima facie proof thereof

People vs. Alegre (1976): Where there is no independent evidence of the alleged conspiracy,
the extrajudicial confession of an accused cannot be used against his co-accused as the res inter
alios rule applies to both extrajudicial confessions and admissions

Extrajudicial admission made by a conspirator after the conspiracy has ended and even before
trial – not admissible against co-conspirator

Except:
1. If made in the presence of the co-conspirator who expressly or impliedly (tacit admission,
Rule 130.32) agreed therein

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2. Where the facts stated in the said admissions are confirmed in the individual
extrajudicial confessions made by the co-conspirators after their apprehension
3. As a circumstance to determine the credibility of a witness
4. As circumstantial evidence to show the probability of the co-conspirator’s participation in
the offense

People vs. Ola (1987: In order that the extrajudicial statements of a co-accused may be taken
into consideration in judging the testimony of a witness, it is necessary that the statements are
made by several accused, the same are in all material respects identical, and there could have
been no collusion among said co-accused in making such statements.

People v. Cabrera, 57 SCRA 715 (1974): Facts: Accused was convicted based on the extra-
judicial confession of his co-accused.
Held: The statement was made after, not during, the conspiracy, hence it was inadmissible.

People v. Yatco, 97 Phil. 941 (1955) – confession regarding conspiracy may be used against
confessor (multiple admissibility); confession regarding conspiracy should be conditionally
admitted until conspiracy is proved; statements must be made during the conpiracy and in
furtherance of its object to be admissible.

People v. Chaw Yaw Shun, 23 SCRA 127 (1968) – conspiracy must be proved by independent
evidence other than the confession; reiterated “in furtherance”

People v. Serrano, 105 Phil. 531 (1959) – requirement that conspiracy must be shown 1 st other
than confession applies only to extra-judicial confessions not to testimony in open court.

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

RULE ON 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

Example: X, father of Z, while the former was alive, openly told his acquaintances, that
the land where his house stood had already been sold to Y. Here, the declaration by X is not
admissible against Z, the sole heir of Y, because the statement was made after X held title to the
land.

SECOND PART OF INTER ALIOS ACTA RULE (Similar acts as evidence) Rule 130, Secs. 34

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

REASON FOR THE RULE

It is clear that evidence of other crimes compels the defendant to meet charges of which
the indictment gives him no information, confuses him in his defense, raises a variety of issue,
and thus diverts the attention of the court from the charge immediately before it. The rule may be
said to be an application of the principle that the evidence must be confined to the point in issue
in the case on trial. In other words, evidence of collateral offenses must not be received as
substantive evidence of the offenses on trial

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APPLICABILITY:
Sec. 34 is the second branch of the rule of res inter alios acta (Rule 130, Sec. 28) and
applies to both civil and criminal cases.

CASES
US v. Evangelista 24 Phil 453 (1913): In a trial for arson, the prosecution may prove that the
accused had attempted to set fire to the house on the day previous to the burning alleged in the
information, for the purpose of showing the intent of the accused in subsequently setting fire to
the house. Where a person is charged wit the commission of a specific crime, testimony may be
received of the other similar acts committed about the same time, only for the purpose
of establishing the criminal intent of the accused.

US v. Pineda 37 Phil 457 (1918): Facts: A druggist filled a prescription for protassium chlorate
with barium chlorate, a poison, causing the death of two horses. After analyzing the packages,
two chemists went to the drug store of the defendant and bought potassium chlorate, which when
analyzed was found to be barium chlorate.

Held: The testimony of the chemist was admissible in order to demonstrate defendant's motive
and negligence. It is permissible to ascertain defendant's knowledge and intent and to fix his
negligence. If the defendant has on more than one occasion performed similar acts, accident in
good faith is possibly excluded, negligence is intensified, and fraudulent intent may even be
established. There is no better evidence of negligence than the frequency of accidents. Evidence
is admissible in a criminal action which tends to show motive, although it tends to prove the
commission of another offense by the defendant.

People v. Irang 64 Phil 285 (1937): Facts: After barging into her home, a man ordered
Maximiniana Vicente to bring out her money and jewelry. As she turned over the items, she
looked at the man's face and saw that he had pockmarks and a scar on his left eyelid. Irang was
identified by Maximiana from a police line-up and was charged. During the trial, Maximiana’s
neighbor, Juana de la Cruz, testified that on the night in question, her house was assaulted by
malefactors. de la Cruz noticed that one of them had pockmarks and a scar on the left eyelid. She
identified that man to be Irang.

Held: The testimony of Juana de la Cruz indirectly corroborates Maximiniana’s testimony that the
man of the same description was the one who went to her house and demanded delivery of her
money and jewelry. While evidence of another crime is, as a rule, not admissible in a prosecution
for robbery, it is admissible when it is otherwise relevant, as where it tends to identify defendant
as the perpetrator of the robbery charged, or tends to show his presence at the scene or in the
vicinity of the crime at the time charged, or when it is evidence of a circumstance connected with
the crime.

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

REQUISITES FOR ADMISSIBILITY

To be admissible against a party as an admission by silence, the following requisites must concur:

1. hearing and understanding-- He must have heard or observed the act or declaration of
the other person; and he must have understood the statement;
2. He must have had the opportunity and the necessity to deny it;
3. The statement must refer to a matter affecting the parties’ rights.
4. The facts are within his knowledge; and

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5. The fact admitted or the inference to be drawn from his silence is material to
the issue.

ADMISSION BY SILENCE

Admission by silence has been traditionally received even in common law as admissible
evidence. The usual pattern for its admissibility involves a statement by a person in the presence
of a party to the action, criminal or civil. The statement contains assertions against the party,
which, if untrue would be sufficient cause for the party to deny. His failure to speak against the
statement is admissible as an admission.

Suppose a policeman, upon approaching a group of bystanders, points to one of them

and accuses him to be the killer of a man found dead the night before. The man pointed at does
not respond. He does not deny the accusation. His failure to respond may be given in evidence
against him. The idea of the rule on admission by silence is that if an accusation is made, and a
reasonable person would have denied the same if it were false, the failure to deny the accusation
by the person accused is an implied admission of the truth of the accusation.

RULE APPLICABLE BOTH TO CRIMINAL AND CIVIL CASES

The rule on admission by silence applies to both criminal and civil cases although must
be received with caution because not every silence is an admission. For instance, the silence of a
person under investigation for the commission of an offense should not be construed as an
admission by silence because of constitutional reasons (Sec. 2(b), R.A. 7438).

Not every silence of a party is admissible. It is necessary that: (a) that he heard and
understood the statement; (b) that he was at liberty to make a denial; (c) that the statement was
about a matter affecting his rights or in which he was interested and which naturally calls for a
response; (d) that the facts were within his knowledge, and; (e) that the fact admitted from his
silence is material to the issue (People vs. Paragsa, 84 SCRA 105).

Thus, in one case, despite the many opportunities given to the respondent, he refused to
comment and present his side. The gravity of the charges and the weight of the evidence against
him would have prompted an innocent man to come out and clear his name. However, he opted
to maintain his silence. His silence can easily be interpreted as an admission of guilt (Ortiz vs. De
Guzman, A.M. No. P-03-1708, February 26, 2005; OCA vs. Bernardino, 450 SCRA 88, January
31, 2005).

EXCEPTIONS TO THE RULE ON ADMISSION BY SILENCE OR INSTANCES WHERE THERE

IS NO ADMISSION BY SILENCE:

1) Where no good reason exists for the party to comment on the act or declaration (Veil v.
Strong, 10 Vt. 455), as when the act or declaration was not specifically directed to the
party who remained silent. (80 A.L.R., Anno., 1272)

2) When the party had no opportunity to comment on the act or declaration. (People v.
Ranario, 49 Phil. 220)

3) Where the act or declaration was made in the course of an official investigation. (People
v. Tia Fong, 98 Phil. 609)

4) When silence is upon advice of counsel. (People v. Kozlowski, 115 A.L.R. 1505)

PEOPLE V. ALEGRE

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94 SCRA 109 (1979)

The silence of the accused or his failure to deny statements by another implicating him in
a crime cannot be considered as an admission of his tacit participation in the commission
of the crime.

 Keep in mind that a person under investigation for the commission of a crime has the
right to remain silent and to be informed of that right
 Rule applies to adverse statements in writing if the party was carrying on a mutual
correspondence with the declarant. If no such mutual correspondence, rule is relaxed. A
prompt response can generally not be expected if the party still has to resort to a written
reply, as opposed to a statement orally made.

DOCTRINE OF ADOPTIVE ADMISSION (VIP CASE)

ESTRADA V. DESIERTO
[G.R. Nos. 146710-15. April 3, 2001]

ISSUE: WHETHER THE ANGARA DIARY IS INADMISSIBLE FOR BEING VIOLATIVE OF THE
FOLLOWING RULES ON EVIDENCE: HEARSAY, BEST EVIDENCE, AUTHENTICATION,
ADMISSIONS AND RES INTER ALIOS ACTA;

Petitioner devotes a large part of his arguments on the alleged improper use by this Court of
the Angara Diary. It is urged that the use of the Angara Diary to determine the state of mind of
the petitioner on the issue of his resignation violates the rule against the admission of hearsay
evidence.

We are unpersuaded. To begin with, the Angara diary is not an out of court
statement. The Angara Diary is part of the pleadings in the cases at bar. Petitioner cannot
complain he was not furnished a copy of the Angara Diary. Nor can he feign surprise on its
use. To be sure, the said Diary was frequently referred to by the parties in their pleadings. The
three parts of the Diary published in the PDI from February 4-6, 2001 were attached as Annexes
A-C, respectively, of the Memorandum of private respondents Romeo T. Capulong, et al., dated
February 20, 2001. The second and third parts of the Diary were earlier also attached as
Annexes 12 and 13 of the Comment of private respondents Capulong, et al., dated February 12,
2001. In fact, petitioner even cited in his Second Supplemental Reply Memorandum both the
second part of the diary, published on February 5, 2001, [4] and the third part, published on
February 6, 2001.[5] It was also extensively used by Secretary of Justice Hernando Perez in his
oral arguments. Thus, petitioner had all the opportunity to contest the use of the Diary but
unfortunately failed to do so.

Even assuming arguendo that the Angara Diary was an out of court statement, still its use is
not covered by the hearsay rule. [6]Evidence is called hearsay when its probative force depends, in
whole or in part, on the competency and credibility of some persons other than the witness by
whom it is sought to produce it. [7] There are three reasons for excluding hearsay evidence: (1)
absence of cross examination; (2) absence of demeanor evidence, and (3) absence of the oath.
[8]
Not at all hearsay evidence, however, is inadmissible as evidence. Over the years, a huge
body of hearsay evidence has been admitted by courts due to their relevance, trustworthiness
and necessity.[9] The emergence of these exceptions and their wide spread acceptance is well-
explained by Weinstein, Mansfield, Abrams and Berger as follows:
“x x x

On the other hand, we all make decisions in our everyday lives on the basis of other persons’
accounts of what happened, and verdicts are usually sustained and affirmed even if they are
based on hearsay erroneously admitted, or admitted because no objection was made. See

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Shepp v. Uehlinger, 775 F 2d 452, 454-455 (1st Cir. 1985) (hearsay evidence alone
can support a verdict). Although volumes have been written suggesting ways to revise the
hearsay rule, no one advocates a rule that would bar all hearsay evidence. Indeed, the decided
historical trend has been to exclude categories of highly probative statements from the
definition of hearsay (sections 2 and 3, infra), and to develop more class exceptions to the
hearsay rule (sections 4-11, infra). Furthermore, many states have added to their rules the
residual, or catch-all, exceptions first pioneered by the Federal Rules which authorize the
admission of hearsay that does not satisfy a class exception, provided it is adequately
trustworthy and probative (section 12, infra).

Moreover, some commentators believe that the hearsay rule should be abolished
altogether instead of being loosened. See, e.g., Note, The Theoretical Foundation of the
Hearsay Rules, 93 Harv.L.Rev. 1786, 1804-1805, 1815 (1980) (footnotes omitted):

The Federal Rules of Evidence provide that ‘[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice.’ Under this structure, exclusion is justified by fears of how the jury will be
influenced by the evidence. However, it is not traditional to think of hearsay as merely a
subdivision of this structure, and the Federal Rules do not conceive of hearsay in that
manner. Prejudice refers to the jury’s use of evidence for inferences other than those for
which the evidence is legally relevant; by contrast, the rule against hearsay questions the
jury’s ability to evaluate the strength of a legitimate inference to be drawn from the
evidence. For example, were a judge to exclude testimony because a witness was
particularly smooth or convincing, there would be no doubt as to the usurpation of the
jury’s function. Thus, unlike prejudices recognized by the evidence rules, such as those
stemming from racial or religious biases or from the introduction of photographs of a
victim’s final state, the exclusion of hearsay on the basis of misperception strikes at the
root of the jury’s function by usurping its power to process quite ordinary evidence, the
type of information routinely encountered by jurors in their everyday lives.
…
Since virtually all criteria seeking to distinguish between good and bad hearsay are either
incoherent, inconsistent, or indeterminate, the only altenative to a general rule of
admission would be an absolute rule of exclusion, which is surely inferior. More
important, the assumptions necessary to justify a rule against hearsay … seem
insupportable and, in any event, are inconsistent with accepted notions of the function of
the jury. Therefore, the hearsay rules should be abolished.

Some support for this view can be found in the limited empirical research now available – which
is, however, derived from simulations – that suggests that admitting hearsay has little effect on
trial outcomes because jurors discount the value of hearsay evidence. See Rakos &
Landsman, Researching the Hearsay Rule: Emerging Findings, General Issues, and Future
Directions, 76 Minn.L.Rev. 655 (1992); Miene, Park, & Borgidas, Jury Decision Making and the
Evaluation of Hearsay Evidence, 76 Minn.L.Rev. 683 (1992); Kovera, Park, & Penrod, Jurors’
Perceptions of Eyewitness and Hearsay Evidence, 76 Minn.L.Rev. 703 (1992); Landsman &
Rakos, Research Essay: A Preliminary Empirical Enquiry Concerning the prohibition of Hearsay
Evidence in American Courts, 15 Law & Psychol. Rev. 65 (1991).

Others, even if they concede that restrictions on hearsay have some utility, question
whether the benefits outweigh the cost:
The cost of maintaining the rule is not just a function of its contribution to justice. It also
includes the time spent on litigating the rule. And of course this is not just a cost voluntarily
borne by the parties, for in our system virtually all the cost of the court – salaries,
administrative costs, and capital costs – are borne by the public. As expensive as litigation
is for the parties, it is supported by an enormous public subsidy. Each time a hearsay
question is litigated, the public pays. The rule imposes other costs as well. Enormous
time is spent teaching and writing about the hearsay rule, which are both costly

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enterprises. In some law schools, students spend over half their time in
evidence classes learning the intricacies of the hearsay rule, and … enormous academic
resources are expended on the rule.

A complete analysis of any hearsay problem requires that we further determine whether
the hearsay evidence is one exempted from the rules of exclusion. A more circumspect
examination of our rules of exclusion will show that they do not cover admissions of a
party and the Angara Diary belongs to this class. Section 26 of Rule 130 provides that “the
act, declaration or omission of a party as to a relevant fact may be given in evidence against
him.” It has long been settled that these admissions are admissible even if they are
hearsay. Retired Justice Oscar Herrera of the Court of Appeals cites the various authorities who
explain why admissions are not covered by the hearsay rule:

“Wigmore, after pointing out that the party’s declaration has generally the probative value
of any other person’s assertion, argued that it had a special value when offered against
the party. In that circumstance, the admission discredits the party’s statement with the
present claim asserted in pleadings and testimony, much like a witness impeached by
contradictory statements. Moreover, he continued admissions pass the gauntlet of the
hearsay rule, which requires that extrajudicial assertions be excluded if there was no
opportunity for the opponent to cross-examine because it is the opponent’s own declaration,
and ‘he does not need to cross examine himself.’ Wigmore then added that the Hearsay
Rule is satisfied since the party now as opponent has the full opportunity to put himself on
the stand and explain his former assertion. (Wigmore on evidence, Sec. 1048
(Chadbourn Rev. 1972), cited in Sec. 154, McCormick)
According to Morgan: ‘The admissibility of an admission made by the party himself rests
not upon any notion that the circumstances in which it was made furnish the trier means of
evaluating it fairly, but upon the adversary theory of litigation. A party can hardly object
that he had no opportunity to cross-examine himself or that he is unworthy of
credence save when speaking under sanction of an oath.’

A man’s acts, conduct, and declaration, wherever made, if voluntary, are admissible against
him, for the reason that it is fair to presume that they correspond with the truth, and it is his
fault if they do not. (U.S. vs. Ching Po, 23 Phil. 578, 583).”

The Angara Diary contains direct statements of petitioner which can be categorized
as admissions of a party: his proposal for a snap presidential election where he would not be a
candidate; his statement that he only wanted the five-day period promised by Chief of Staff
Angelo Reyes; his statements that he would leave by Monday if the second envelope would be
opened by Monday and “Pagod na pagod na ako. Ayoko na, masyado nang masakit. Pagod na
ako sa red tape, bureaucracy, intriga. (I am very tired. I don’t want any more of this – it’s too
painful. I’m tired of the red tape, the bureaucracy, the intrigue). I just want to clear my name,
then I will go.” We noted that days before, petitioner had repeatedly declared that he would not
resign despite the growing clamor for his resignation. The reason for the meltdown is obvious - -
- his will not to resign has wilted.

ADOPTIVE ADMISSION:

It is, however, argued that the Angara Diary is not the diary of the petitioner, hence,
non-binding on him. The argument overlooks the doctrine of ADOPTIVE ADMISSION. An
adoptive admission is a party’s reaction to a statement or action by another person when
it is reasonable to treat the party’s reaction as an admission of something stated or
implied by the other person. Jones explains that the “basis for admissibility of admissions
made vicariously is that arising from the ratification or adoption by the party of the statements
which the other person had made.” To use the blunt language of Mueller and Kirkpatrick, “this
process of attribution is not mumbo jumbo but common sense.” In the Angara Diary, the
options of the petitioner started to dwindle when the armed forces withdrew its support from him

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as President and commander-in-chief. Thus, Executive Secretary Angara had to ask

Senate President Pimentel to advise petitioner to consider the option of “dignified exit or
resignation.” Petitioner did not object to the suggested option but simply said he could never
leave the country. Petitioner’s silence on this and other related suggestions can be taken as an
admission by him.

Petitioner further contends that the use of the Angara diary against him violated the rule
on res inter alios acta. The rule is expressed in section 28 of Rule 130 of the Rules of Court,
viz: “The rights of a party cannot be prejudiced by an act, declaration, or omission of
another, except as hereinafter provided.”

Again, petitioner errs in his contention. The res inter alios acta rule has several
exceptions. One of them is provided in section 29 of Rule 130 with respect to admissions by a
co-partner or agent.

Executive Secretary Angara as such was an alter ego of the petitioner. He was the Little
President. Indeed, he was authorized by the petitioner to act for him in the critical hours
and days before he abandoned Malacañang Palace. Thus, according to theAngara Diary, the
petitioner told Secretary Angara: “Mula umpisa pa lang ng kampanya, Ed, ikaw na lang
pinakikinggan ko. At hanggang sa huli, ikaw pa rin.” (Since the start of the campaign, Ed, you
have been the only one I’ve listened to. And now at the end, you still are.)” [17] This statement of
full trust was made by the petitioner after Secretary Angara briefed him about the progress
of the first negotiation. True to this trust, the petitioner had to ask Secretary Angara if he would
already leave Malacañang after taking their final lunch on January 20, 2001 at about 1:00
p.m. The Angara Diary quotes the petitioner as saying to Secretary Angara: “ed, kailangan ko
na bang umalis? (Do I have to leave now?)” Secretary Angara told him to go and he
did. Petitioner cannot deny that Secretary Angara headed his team of negotiators that met with
the team of the respondent Arroyo to discuss the peaceful and orderly transfer of power after his
relinquishment of the powers of the presidency. The Diary shows that petitioner was always
briefed by Secretary Angara on the progress of their negotiations. Secretary Angara acted for
and in behalf of the petitioner in the crucial days before respondent Arroyo took her oath as
President. Consequently, petitioner is bound by the acts and declarations of Secretary
Angara.

Under our rules of evidence, admissions of an agent (Secretary Angara) are binding
on the principal (petitioner). Jones very well explains the reasons for the rule, viz: “What is
done, by agent, is done by the principal through him, as through a mere instrument. So,
whatever is said by an agent, either in making a contract for his principal, or at the time and
accompanying the performance of any act within the scope of his authority, having relation to,
and connected with, and in the course of the particular contract or transaction in which he is then
engaged, or in the language of the old writers, dum fervet opus is, in legal effect, said by his
principal and admissible in evidence against such principal.”

Moreover, the ban on hearsay evidence does not cover independently relevant
statements. These are statements which are relevant independently of whether they are
true or not. They belong to two (2) classes: (1) those statements which are the very facts in
issue, and (2) those statements which are circumstantial evidence of the facts in issue. The
second class includes the following[
a. Statement of a person showing his state of mind, that is, his mental condition,
knowledge, belief, intention, ill will and other emotions;
b. Statements of a person which show his physical condition, as illness and the like;
c. Statements of a person from which an inference may be made as to the state of
mind of another, that is, the knowledge, belief, motive, good or bad faith, etc. of the
latter;
d. Statements which may identify the date, place and person in question; and
e. Statements showing the lack of credibility of a witness.

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Again, Jones tells us why these independently relevant statements are not covered by
the prohibition against hearsay evidence:[

Ҥ 1088. Mental State or Condition РProof of Knowledge.- There are a number of comon
issues, forming a general class, in proof of which hearsay is so obviously necessary that it is
not customary to refer to its admissibility as by virtue of any exception to the general
exclusionary rule. Admissibility, in such cases, is as of course. For example, where any
mental state or condition is in issue, such as motive, malice, knowledge, intent, assent or
dissent, unless direct testimony of the particular person is to be taken as conclusive of his
state of mind, the only method of proof available is testimony of others to the acts or
statements of such person. Where his acts or statements are against his interest, they
are plainly admissible within the rules hereinabove announced as to admissions against
interest. And even where not against interest, if they are so closely connected with the
event or transaction in issue as to constitute one of the very facts in controversy, they
become admissible of necessity.”

As aforediscussed, The Angara Diary contains statements of the petitioner which reflect his
state of mind and are circumstantial evidence of his intent to resign. It also contains statements
of Secretary Angara from which we can reasonably deduce petitioner’s intent to resign. They are
admissible and they are not covered by the rule on hearsay. This has long been a quiet area of
our law on evidence and petitioner’s attempt to foment a belated tempest cannot receive our
imprimatur.

CASES

People v. Paragsa, 84 SCRA 105 (1978) Failure by a supposed rape victim to rebut sweetheart
defense based on testimonial evidence may be taken against her. Requirements for admission by
silence: 1) heard and understood, 2) at liberty to deny, 3) affects his rights, 4) within his
knowledge, and 5) material to the issue

People v. Alegre, 94 SCRA 109 (1979) – silence of accused in custody during investigation
cannot be used as evidence against him

Griffin v. California, 380 U.S. 853 (1965) – court may not comment on accused’s failure to testify
regarding facts within his knowledge

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

BASIS: Rule 130, Sec. 133; Rule 115 (e); Art. III, Sec. 17, 1987 Constitution

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.

General rule on admissibility of confession: A confession is admissible only against the

accused who made it and not against his co-accused, for as against the latter, the confession
would be hearsay and res inter alios acta. (People v. Talledo, 85 Phil. 533)

Exceptions: when a confession is admissible against co-accused:

1) When the confession of an accused implicating his co-accused is made judicially at a
joint trial (U.S. v. Macamay, 36 Phil. 893) or when the extrajudicial statements implicating
a co-accused are repeated in open court (People v. Ola, G.R. No. L-47147, July 3, 1987),
because the co-accused as a chance to cross-examine.

2) When the offer in evidence of an extrajudicial confession against a co-accused is not

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objected to. (People v. Atienza, 86 Phil. 576)

3) When the co-accused against whom an extrajudicial confession is offered had, by his
acts, conducts and declarations adopted he confession as his own. (People v. Atienza,
supra; People v. Orencia, 47 Phil. 970)

4) Where several accused, without collusion, made extrajudicial confessions which are
identical in essential details and corroborated by other evidence, such confession is
admissible against the others. (People v. Pelonia, L-14624, July 24, 1960)

5) The confession of a conspirator is admissible against his co-conspirator provided it was

made during the existence of the conspiracy. (Sec. 30, Rule 130, ROC; People v.
Ramirez, L-5875, May 15, 1953)

6) When the recitals in the extrajudicial confession of an accused are corroborated in its
important details by other proofs in the record, it may be admitted against the other
accused. (People v. Villanueva, L-12687, July 31, 1962)

CONFESSION IS EVIDENCE OF HIGH ORDER:

1) There is no evidence of a higher quality than a confession. It represents the outward

manifestation of a man. Unless, therefore, the confession is nullified by evidence of
duress, the same is admissible as an evidence of guilt of a high quality. (People v.
Garcia, 54 Phil. 329, 358)

2) If a confession be true and voluntary, the deliberate act of the accused with a full
comprehension of its significance, there is no impediment to its admission as evidence
and it then becomes evidence of a high order, since it is supported by the presumption, a
very strong one, that no person of normal mind will deliberately and knowingly confess
himself to be the perpetrator of a crime, especially if it be a serious crime, unless
prompted by truth and conscience. (People v. Zea, et al., 130 SCRA 87, 88)

DIFFERENTIATE AN ADMISSION FROM A CONFESSION

Admission Confession
Definition Statement of fact which does not Declaration acknowledging one’s
involve an acknowledgment of guiltguilt of the offense charged
or liability
Form May be express or tacit Must be express
Made by Party or 3rd person (The admissions Party himself
made by a 3rd person will affect the
party to the accused if it falls under
the exceptions to the res inter alios
acta rule)
Cases in which Both criminal and civil cases Usually criminal cases
applicable

DIFFERENTIATE AN ADMISSION AND CONFESSION IN CRIMINAL CASES.

Admission Confession
Definition Statement by the accused, direct or Acknowledgment in express terms by
implied, of facts pertinent to the issue a party in a criminal case of his guilt of
and tending, in connection with proof the crime charged

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of other facts, to prove his guilt

Sufficiency to Insufficient. Tends only to establish Sufficient

authorize a the ultimate fact of guilt.
conviction

DIFFERENTIATE THE EFFECTS OF JUDICIAL AND EXTRAJUDICIAL CONFESSIONS.

A judicial confession is sufficient in itself to sustain a conviction, even in capital

offenses. On the other hand, an extrajudicial confession is insufficient in itself to sustain
a conviction. It must be corroborated by evidence of the corpus delicti

What is meant by corpus delicti?

a. It refers to a particular crime and signifies that the specific offense had been actually
committed by someone, being composed of two elements:
1) certain results were produced, and
2) Someone is criminally responsible. (People v. Marquez, 77 Phil. 83)

b. It also means actual commission of the crime charged. (People v. Madrid, 88 Phil. 1;
People v. Sanchez, 89 Phil. 423), or the specific fact of loss or injury. (People v. Garcia,
99 Phil. 381)

Examples of corpus delicti:

a. 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).

Conviction for murder proper even if victim’s body is not produced: In all crimes against
persons in which the death of the victim is an essential element of the offense, there must
be satisfactory evidence of the fact of death and the identity of the victim that a crime has
been committed which is what corpus delicti really means.

The failure of the prosecution to produce the body of the victim does not imply the
absence of corpus delicti for the term does not refer to the body of the murdered person.
(People v. Centeno, et al., 130 SCRA 209)

b. In robbery or theft, the fact of loss. (People v. Niem, 75 Phil. 668)

c. In arson, the fact of burning, (People v. Marquez, 77 Phil. 83; People v. Mones, 58 Phil.
46)

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)

What about confession in ABS-CBN? By itself, the extrajudicial confession is not enough to
sustain a conviction. It still has to be corroborated by the corpus delicti. The prosecution still has
the burden of proof that such accused has committed the crime charged.

REQUISITES FOR THE ADMISSIBILITY OF EXTRAJUDICIAL CONFESSIONS

(1) Must involve an express and categorical acknowledgment of guilt (US v. Corales);
(2) The facts admitted must be constitutive of a criminal offense (US v. Flores);

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(3) Must have been given voluntarily (People v. Nishishima);

(4) Must have been made intelligently (Bilaan v. Cusi)
(5) Must have been made with the assistance of competent and independent counsel (Art III,
Sec. 12, 1987 Constitution)

PROBATIVE VALUE OF RECANTATIONS

They are looked upon with disfavor as recantations are usually secured through
intimidation or for a monetary consideration. (Molina v. People, 259 SCRA 138)

INTERLOCKING CONFESSIONS

Extrajudicial confessions identical in material respects (also known as

INTERLOCKING CONFESSIONS) admissible against all declarants:

1) As circumstantial evidence. Extrajudicial confessions independently made without

collusion and are identical with each other in their material respects and confirmatory of
the other are admissible as circumstantial evidence against co-accused implicated
therein to show the probability of the latter's actual participation in the commission of the
crime. (People v. Encipido, et al., 146 SCRA 492)

2) As corroborative evidence. They are admissible as corroborative evidence against the

other accused, if it is clear from other facts and circumstances presented that persons
other than the declarants themselves participated in the commission of the crime charged
and proved. (Ibid.)

They are what is commonly known as interlocking confession and constitute an exception to
the general rule that extrajudicial confessions/admissions are admissible in evidence only against
the declarants thereof. (Ibid.)

INVOCATION OF AMNESTY

The invocation of amnesty is in the nature of a plea of confession and avoidance,

which means that the pleader admits the allegations against him, but disclaims liability
therefore on account of intervening facts which, if proved, would bring the crime charged
within the scope of the amnesty proclamation. (People v. Salig, et al., 133 SCRA 69
citing Vera v. People, 7 SCRA 153)

RIGHT AGAINST SELF-INCRIMINATION

Sec. 17, art III – no person shall be compelled to be a witness against himself
The operative act in determining whether the right against self-incrimination
has been violated is when the police investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a particular suspect who has been taken into
custody by the police to carry out a process of interrogation that lends itself to eliciting
incriminatory statements and not the signing by the suspect of his supposed extrajudicial
confession. (People vs. Compil, 1995)

By affixing their signatures on the boxes, accused in effect made a tacit admission of the
crime charged. These signatures are tantamount to an extrajudicial confession made
without the assistance of counsel, which is not sanctioned by the Bill of Rights. (People
vs. Wong Chuen Ming, 1996)

Any confession, including a re-enactment without admonition of the right to silence and to
counsel, and without counsel chosen by the accused is inadmissible in evidence.

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The declaration of an accused expressly acknowledging his guilt of the

offense may be given in evidence against him and any person, otherwise competent to
testify as a witness who heard the confession is competent to testify as to the substance
of what he heard if he heard and understood it. (People vs. Maqueda, 1995)

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

Article 1176 provides that after a valid tender of payment "the debtor shall be released from the
responsibility by the consignation of the thing or sum due." As a compliment, article 1180 says
that "after the consignation has been duly made, the debtor may petition the judge to order the
cancellation of the obligation." All of which patently indicate that consignation must follow,
supplement or complete the tender of payment if discharge of the obligation is to be obtained.

In this provision, gusto ka mubayad pero gi-refusan ka. What is an accepted offer? That there is
an offer in writing to pay money or delivery of written instrument or specific thing. If the same was
rejected what is the effect? The effect is production or tender of money, property or instrument.

Atty. Espejo: this provision is a bit faulty in its wordings because you are actually equating a mere
offer to the actual payment or delivery of the money, instrument or property. Malay mo bluff lang
diay na imung offer2x.

Section 36. Testimony generally confined to personal knowledge; hearsay excluded. - A

witness can testify only to those facts which he knows of his personal knowledge; that is,
which are derived from his own perception, except as otherwise provided in these rules.
(30a)

DEFINITION
Hearsay is a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.

Hearsay evidence is evidence given by a witness based on information passed to that

person by others rather than evidence experienced at first hand by the witness.

Hearsay evidence is defined as "evidence not of what the witness knows himself but of
what he has heard from others."

MARISSA R. UNCHUAN vs. ANTONIO J.P. LOZADA, ET AL.

G.R. No. 172671, April 16, 2009

Evidence is hearsay when its probative force depends, in whole or in part, on the
competency and credibility of some persons other than the witness by whom it is sought to be
produced.

REASONS FOR EXCLUDING HEARSAY EVIDENCE

There are three reasons for excluding hearsay evidence:

(1) ABSENCE OF CROSS-EXAMINATION;

It is required that a witness must be subjected to cross-examination by opposing

counsel to test the perception, memory, veracity and articulateness of the out-of-court
declarant or actor upon whose reliability on which the worth of the out-of-court statement
depends.

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The right to cross-examine the adverse party's witnesses is essential in the

administration of justice for it is the only means of testing the credibility of witnesses and
their testimony, and this right is not available in respect of hearsay evidence since the
declarant is not in court. (Donnelly v. U.S., 228 U.S. 243)

(2) ABSENCE OF DEMEANOR EVIDENCE; and

Demeanor means the outward physical behavior and appearance of a person.
Demeanor is not merely what someone says but the manner in which it is said. Factors
that contribute to an individual's demeanor include tone of voice, facial expressions,
gestures, and carriage.
The term demeanor is most often applied to a witness during a trial. Demeanor
evidence is quite valuable in shedding light on the credibility of a witness, which is one of
the reasons why personal presence at trial is considered to be of paramount importance
and has great significance concerning the hearsay rule. To aid a jury in its determination
of whether or not it should believe or disbelieve particular testimony, it should be provided
with the opportunity to hear statements directly from a witness in court whenever
possible.

(3) ABSENCE OF OATH.

An oath or affirmation is necessary for the witness to recognize the duty to tell the
truth. The oath of a witness signifies that he is swearing to the Creator "to tell the truth
and nothing but the truth" and that if he does not, he will later on answer for the falsehood
told. A lie thus told on the witness stand subjects the witness to perjury.

TWO CONCEPTS OF HEARSAY EVIDENCE

There are 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. For example, Plaintiff presents witness A. A
testifies in court on matters personally known to him. After direct examination, court tells
that defendant can cross examine on next scheduled hearing. On the next scheduled
hearing witness A no longer appears and could no longer be located. The remedy here
now is to ask that the testimony of witness A be stricken out since it now becomes
hearsay.

REQUISITES OF HEARSAY EVIDENCE (UNDER THE FIRST CONCEPT)

A statement will be considered hearsay if it is:
1. AN ASSERTIVE STATEMENT
2. MADE BY AN OUT-OF-COURT DECLARANT
3. OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED THEREIN.

An "assertive statement" is generally defined as the intentional communication of fact.

An assertive statement can be oral, written, or non-verbal conduct if it was intended to be an
assertion. However, any verbal or non-verbal conduct that was not intended to communicate a
fact will not be considered an assertive statement.

In order for the statement to satisfy the "out-of-court declarant" element of hearsay,
very simply stated, the statement must have been made outside of the courtroom that the present
proceeding is taking place in -- meaning that if the statement was made in another courtroom, it is
still made by an "out-of-court" declarant.

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Lastly, if a statement is being offered for its truth -- meaning that its
relevance depends upon the tribunal believing the substance of the statement -- then it is being
offered to prove the truth of the matter asserted therein. If a statement is relevant for any other
purpose other than proving the truth of the matter asserted therein, then the statement will not be
considered hearsay.

HEARSAY: WAIVED BY FAILURE TO OBJECT

The hearsay evidence rule is a rule of exclusion. Any statement that does not qualify
under Section 36 is deemed inadmissible. As in the case of other exclusionary rules, the hearsay
character of evidence may be waived by failure to object. However, admissibility is not the same
as evidentiary weight or probative value. Thus:

PHIL. REALTY HOLDINGS CORP. vs. FIREMATIC PHIL., INC.

G.R. No. 156251, April 27, 2007

While hearsay evidence may be admitted because of lack of objection by the adverse
party’s counsel, it is nonetheless without probative value. Stated differently, the declarants of
written statements pertaining to disputed facts must be presented at the trial for cross-
examination. The lack of objection may make an incompetent evidence admissible, but
admissibility of evidence should not be equated with weight of evidence. Indeed, hearsay
evidence whether objected to or not has no probative value.

HEARSAY EVIDENCE MAY BE ORAL, WRITTEN OR NON-VERBAL CONDUCT

The rule excluding hearsay is not limited to oral testimonies. It also applies equally well to
written evidence (such as affidavits, letters, sworn statements) as well as to non-verbal-conduct
(such as gestures and actions).

WRITTEN EVIDENCE CONSIDERED HEARSAY

AFFIDAVITS

The constitutional right to confrontation precludes reliance on affidavits. Such a

constitutional safeguard cannot be satisfied unless the opportunity is given to the accused to test
the credibility of any person, who, by affidavit or deposition would impute the commission of an
offense to him. It would be to disregard one of the most valuable guarantees of a person
accused if solely on the affidavits presented, his guilt could be predicated. (People v. Santos, et
al., 139 SCRA 586-587 citing People v. Lavarez, 23 SCRA 1301)

MARISSA R. UNCHUAN vs. ANTONIO J.P. LOZADA, ET AL.

G.R. No. 172671, April 16, 2009

It is a hornbook doctrine that an affidavit is merely hearsay evidence where its maker did
not take the witness stand. Verily, the sworn statement of Anita was of this kind because she did
not appear in court to affirm her averments therein.

EXCEPTIONS: WHEN AFFIDAVITS ARE GIVEN WEIGHT

1) Where said affidavits are overwhelming, uncontroverted by competent evidence and not
inherently improbable. (Top-Weld Manufacturing, Inc. v. ECED, S.A., et al., 138 SCRA
132)

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2) Under the Rule on Summary Procedure for civil cases;

3) 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
hat the matter be heard wholly or partly on oral testimony or depositions. (Sec. 7, Rule
133, ROC)

4) In proceedings before tribunals not strictly bound by the Rules of Evidence;

ORIENTAL SHIPMANAGEMENT CO., INC. vs. BASTOL

G.R. No. 186289, June 29, 2010

The holding of a formal hearing or trial is discretionary with the Labor Arbiter and is
something that the parties cannot demand as a matter of right. The requirements of due process
are satisfied when the parties are given the opportunity to submit position papers wherein they
are supposed to attach all the documents that would prove their claim in case it be decided that
no hearing should be conducted or was necessary.

In sum, it can be properly said that the proceedings before the Labor Arbiter are non-
litigious in nature and the technicalities of law and procedure, and the rules obtaining in the
courts of law are not applicable. Thus, the rules allow the admission of affidavits by the Labor
Arbiter as evidence despite the fact that the affiants were not presented for cross-examination by
the counsel for the adverse party. To require otherwise would be to negate the rationale and
purpose of the summary nature of the administrative proceedings and to make mandatory the
application of the technical rules of evidence. What the other party should do is to present
counter-affidavits instead of merely objecting on the ground that the affidavits are hearsay.

HOWEVER:

In proceedings before the Department of Labor and Employment (i.e., union certification,
cancellation of EBA status or decertification), affidavits must be reaffirmed to be admissible.

EAGLE RIDGE GOLF & COUNTRY CLUB vs. CA and EAGLE RIDGE EMPLOYEES UNION
G.R. No. 178989, March 18, 2010

In the more meaty issue of the affidavits of retraction executed by six union members, we
hold that the probative value of these affidavits cannot overcome those of the supporting
affidavits of 12 union members and their counsel as to the proceedings and the conduct of the
organizational meeting on December 6, 2005. The DOLE Regional Director and the BLR OIC
Director obviously erred in giving credence to the affidavits of retraction, but not according the
same treatment to the supporting affidavits.

The six affiants of the affidavits of retraction were not presented in a hearing before the
Hearing Officer (DOLE Regional Director), as required under the Rules Implementing Book V of
the Labor Code covering Labor Relations. Said Rules is embodied in Department Order No. (DO)
40-03 which was issued on February 17, 2003 and took effect on March 15, 2003 to replace DO
9 of 1997. Sec. 11, Rule XI of DO 40-03 specifically requires:

Section 11. Affirmation of testimonial evidence. – Any affidavit submitted by a

party to prove his/her claims or defenses shall be re-affirmed by the presentation of the
affiant before the Med-Arbiter or Hearing Officer, as the case may be. Any affidavit
submitted without the re-affirmation of the affiant during a scheduled hearing shall not be
admitted in evidence, except when the party against whom the affidavit is being offered
admits all allegations therein and waives the examination of the affiant.

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It is settled that affidavits partake the nature of hearsay evidence, since they
are not generally prepared by the affiant but by another who uses his own language in writing the
affiant’s statement, which may thus be either omitted or misunderstood by the one writing
them.51 The above rule affirms the general requirement in adversarial proceedings for the
examination of the affiant by the party against whom the affidavit is offered. In the instant case, it
is required for affiants to re-affirm the contents of their affidavits during the hearing of the instant
case for them to be examined by the opposing party, i.e., the Union.

For their non-presentation and consonant to the above-quoted rule, the six affidavits of
retraction are inadmissible as evidence against the Union in the instant case. Moreover, the
affidavit and joint-affidavits presented by the Union before the DOLE Regional Director were duly
re-affirmed in the hearing of March 20, 2006 by the affiants. Thus, a reversible error was
committed by the DOLE Regional Director and the BLR OIC Director in giving credence to the
inadmissible affidavits of retraction presented by Eagle Ridge while not giving credence to the
duly re-affirmed affidavits presented by the Union.

Evidently, the allegations in the six affidavits of retraction have no probative value and at
the very least cannot outweigh the rebutting attestations of the duly re-affirmed affidavits
presented by the Union.

OTHER HEARSAY WRITTEN EVIDENCE

1. A letter offered in evidence to establish the facts in issue is (Pastor v. Gaspar, 2 Phil. 592;
People v. Carlos, 47 Phil. 626);

2. A medical certificate to the extent of the injuries found by the doctor on the offended
party's body. (De Guia v. Meralco, 40 Phil. 706);

3. A resolution of the municipal council of a certain municipality as to the character of an

accused in a criminal case. (U.S. v. Tanjuatco, 1 Phil. 374);

4. Newspaper articles, which are considered to be DOUBLE DECK HEARSAY or DOUBLE

HEARSAY;

Double Deck Hearsay – it is hearsay within hearsay. It is when a witness

testifies as to an assertion by an out-of-court declarant which in turn is merely
second hand information. Double hearsay is actually mere third hand information.

DUTCH BOY PHILIPPINES, INC. vs. RONALD SENIEL

G.R. No. 170008, January 19, 2009

An unverified and unidentified private document cannot be accorded probative value. It

must be rejected because the party against whom it is presented is deprived of the right and
opportunity to cross-examine the person to whom the statements or writings are attributed. Its
executor or author should be presented as a witness to provide the other party the opportunity to
question its contents. The petitioner’s failure to present the author of the letter renders its
contents suspect and of no probative value.

ALLIED BANKING CORPORATION vs. SOUTH PACIFIC SUGAR CORPORATION

G.R. No. 163692, February 4, 2008

The alleged content of the document, which was not identified nor formally offered in
evidence, is technically pure hearsay. It cannot be admitted or considered as the proof of
petitioner’s contention.

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EXCEPTIONS TO THE HEARSAY RULE

Under Title 6, Rule 130, the following are the exceptions to the hearsay rule:

1. DYING DECLARATION;
2. DECLARATION AGAINST INTEREST;
3. ACT OR DECLARATION ABOUT PEDIGREE;
4. FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE;
5. COMMON REPUTATION;
6. PART OF THE RES GESTAE;
7. ENTRIES IN THE COURSE OF BUSINESS;
8. ENTRIES IN OFFICIAL RECORDS;
9. COMMERCIAL LISTS AND THE LIKE;
10. LEARNED TREATISES; AND
11. TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING.

However, there are quite a few more exceptions that are not found in the said Title,
including:

1. Section 26. Admission of a party. - The act, declaration or omission of a party as to a

relevant fact may be given in evidence against him.

MARISSA R. UNCHUAN vs. ANTONIO J.P. LOZADA, ET AL.

G.R. No. 172671, April 16, 2009

It is a hornbook doctrine that an affidavit is merely hearsay evidence where its maker did
not take the witness stand. Verily, the sworn statement of Anita was of this kind because she did
not appear in court to affirm her averments therein. Yet, a more circumspect examination of our
rules of exclusion will show that they do not cover admissions of a party; the videotaped
statement of Anita appears to belong to this class. Section 26 of Rule 130 provides that "the act,
declaration or omission of a party as to a relevant fact may be given in evidence against him. It
has long been settled that these admissions are admissible even if they are hearsay. Indeed,
there is a vital distinction between admissions against interest and declaration against interest.
Admissions against interest are those made by a party to a litigation or by one in privity with or
identified in legal interest with such party, and are admissible whether or not the declarant is
available as a witness. Declaration against interest are those made by a person who is neither a
party nor in privity with a party to the suit, are secondary evidence and constitute an exception to
the hearsay rule. They are admissible only when the declarant is unavailable as a witness. Thus,
a man’s acts, conduct, and declaration, wherever made, if voluntary, are admissible against him,
for the reason that it is fair to presume that they correspond with the truth, and it is his fault if they
do not. However, as a further qualification, object evidence, such as the videotape in this case,
must be authenticated by a special testimony showing that it was a faithful reproduction.

2. Rule 132, Section 11. Impeachment of adverse party's witness. - A witness may be
impeached by the party against whom he was called, by contradictory evidence, by
evidence that his general reputation for truth, honestly, or integrity is bad, or by evidence
that he has made at other times statements inconsistent with his present testimony, but
not by evidence of particular wrongful acts, except that it may be shown by the
examination of the witness, or the record of the judgment, that he has been convicted of
an offense.

3. Section 28 of the Rule on Examination of a Child Witness states:

SEC. 28. 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

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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.

4. Relaxation of the Hearsay Exclusion in Writ of Amparo cases.

GEN. AVELINO I. RAZON, JR., ET AL. vs. MARY JEAN B. TAGITIS

G.R. No. 182498, December 3, 2009

FACTS: Engineer Morced N. Tagitis, a consultant for the World Bank and the Senior Honorary
Counselor for the Islamic Development Bank (IDB) Scholarship Programme, was last seen in
Jolo, Sulu. Two months after his disappearance, his wife file a petition fo r issuance of a writ of
amparo against the officials of the PNP and the AFP based on information from persons in the
military who do not want to be identified that Engr. Tagitis is in the hands of the uniformed men.
According to this information from unrevealed informants, Engr. Tagitis is in the custody of police
intelligence operatives, specifically with the CIDG, PNP Zamboanga City, being held against his
will in an earnest attempt of the police to involve and connect Engr. Tagitis with the different
terrorist groups.
The respondent testified that she sought the assistance of her former boss in Davao City, Land
Bank Bajada Branch Manager Rudy Salvador, who told her that "PNP CIDG is holding [her
husband], Engineer Morced Tagitis." The respondent recounted that she went to Camp Katitipan
in Davao City where she met Col. Julasirim Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read
to her and her friends (who were then with her) a "highly confidential report" that contained the
"alleged activities of Engineer Tagitis" and informed her that her husband was abducted because
"he is under custodial investigation" for being a liaison for "J.I.” or Jema’ah Islamiah.

Col. Kasim testified that the information he gave the respondent was given to him by his
informant, who was a "civilian asset," through a letter which he considered as "unofficial." Col.
Kasim stressed that the letter was only meant for his "consumption" and not for reading by others.
He testified further that he destroyed the letter right after he read it to the respondent and her
companions because "it was not important to him" and also because the information it contained
had no importance in relation with the abduction of Tagitis. He explained that he did not keep the
letter because it did not contain any information regarding the whereabouts of Tagitis and the
person(s) responsible for his abduction.

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On March 7, 2008, the CA issued its decision confirming that the disappearance of
Tagitis was an "enforced disappearance". The CA held that "raw reports" from an "asset" carried
"great weight" in the intelligence world. Based on these considerations, the CA thus extended the
privilege of the writ to Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane
Pante, PNP Chief Avelino I. Razon, Task Force Tagitis heads Gen. Joel Goltiao and Col. Ahiron
Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert extraordinary diligence and efforts
to protect the life, liberty and security of Tagitis, with the obligation to provide monthly reports of
their actions to the CA. At the same time, the CA dismissed the petition against the then
respondents from the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael, based on the
finding that it was PNP-CIDG, not the military, that was involved.

ISSUE: Admissibility and weight of the evidence

RULING: Flexibility is necessary under the unique circumstances that enforced disappearance
cases pose to the courts; to have an effective remedy, the standard of evidence must be
responsive to the evidentiary difficulties faced. On the one hand, we cannot be arbitrary in the
admission and appreciation of evidence, as arbitrariness entails violation of rights and cannot be
used as an effective counter-measure; we only compound the problem if a wrong is addressed by
the commission of another wrong. On the other hand, we cannot be very strict in our evidentiary
rules and cannot consider evidence the way we do in the usual criminal and civil cases; precisely,
the proceedings before us are administrative in nature where, as a rule, technical rules of
evidence are not strictly observed. Thus, while we must follow the substantial evidence rule, we
must observe flexibility in considering the evidence we shall take into account.

The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their
totality, and to consider any evidence otherwise inadmissible under our usual rules to be
admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our
rules to the most basic test of reason – i.e., to the relevance of the evidence to the issue at hand
and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can
be admitted if it satisfies this basic minimum test.

We note in this regard that the use of flexibility in the consideration of evidence is not at all novel
in the Philippine legal system. In child abuse cases, Section 28 of the Rule on Examination of a
Child Witness is expressly recognized as an exception to the hearsay rule.

5. The Doctrine of Independently Relevant Statements.

THE DOCTRINE OF INDEPENDENTLY RELEVANT STATEMENTS

PEOPLE vs. ROLANDO MALIBIRAN

G.R. No. 178301, April 24, 2009

The law, however, provides for specific exceptions to the hearsay rule. One is the
doctrine of independently relevant statements, where only the fact that such statements were
made is relevant, and the truth or falsity thereof is immaterial. The hearsay rule does not apply;
hence, the statements are admissible as evidence. Evidence as to the making of such statement
is not secondary but primary, for the statement itself may constitute a fact in issue or be
circumstantially relevant as to the existence of such a fact. The witness who testifies thereto is
competent because he heard the same, as this is a matter of fact derived from his own
perception, and the purpose is to prove either that the statement was made or the tenor thereof.

What is tenor? The testimony of a witness is made to prove the mere fact that something
was said to him by someone and not the truth of what was said.

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A declarant's statement may have relevance to an issue in a case from the

mere fact that the words were spoken or written, irrespective of the truth or falsity of the assertion.
They are called "independently relevant statements" because the statements are admissible for
some relevant reason independent of their truth or falsity.

REASONS FOR ADMISSIBILITY OF INDEPENDENTLY RELEVANT STATEMENTS

They are relevant because the statement itself is:

1. Either the very fact in issue; or
2. Circumstantial evidence of a fact in issue.

THE STATEMENT IS THE VERY FACT IN ISSUE

Consider an action for oral defamation where the following exchange took place between
the prosecutor and his witness:
Prosecutor: What did you hear the accused say?
Defense: Objection, Your Honor. Question calls for hearsay testimony!
Court: Not so fast! Witness may answer.
Witness: The accused said while pointing to the victim: "You are a thief. You stole
my money! You are a liar!"

The testimony is not hearsay. It is not offered to prove that the complaining witness is a
"thief' or a "liar." It is offered to prove the tenor of the statement, i.e., that the statement was
made. What is significant is the making of the statement. Beyond the mere fact that the words
were uttered, the statement proves nothing as to its averments because the outof-court
declaration's relevance is independent of the truth of its assertions. In a prosecution for
defamation, an important issue is whether or not the words constituting the offense were uttered.
There is no other inference required. Once there is proof that the words were uttered then the
legal consequences of the mere making of the statement will follow.

CIRCUMSTANTIAL EVIDENCE OF A FACT IN ISSUE

A popular example of an out-of-court statement offered for a non-hearsay purpose is one

which demonstrates by inference from the tenor of the statement the state of mind of the speaker
or the declarant. Here the significance of the statement is not whether its assertion is true or
false. Its significance rests on the mere fact that it was uttered and by extension, on the
conclusion which may reasonably be drawn from the statement.

Let us assume we have a special proceeding in court. Let us say it is the probate of a
testator's will. Some heirs who felt aggrieved by the dispositions in the will have raised the issue
of the testator's sanity. The will was purportedly executed on January 3 of the previous year. A
witness for the oppositor is on the stand to testify on the testator's alleged incapacity.

The will was purportedly executed on January 3 of the previous year. A witness for the
oppositor is on the stand to testify on the testator's alleged incapacity.
Q: How long have you known the testator?
A: For twenty (20) years by the time he died, Sir.
Q: How did you come to know him?
A: I was her nurse for twenty (20) years, Sir.
Q: On January 3, 2004, what did you hear the testator say?
Objection, Your Honor! Hearsay! (Opposing counsel objects.)
Court: Not so fast, Witness may answer!
A: In the morning of January 3, he said, "I am Fernando Poe. Jr. Ako ang Panday!"

Are the statements of the testator offered to prove the truth of the assertions therein?
Certainly not. Obviously, the out-of-court statements of the testator are not offered to prove that

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he is a fictional character. They are offered for a non-hearsay purpose which is to

prove by inference through the statement that the testator on the day the will was executed, was
incapacitated by reason of a mental condition. From experience we know that a person's state of
mind may be revealed "by his actions or by what he says. The declarant's words or con duct
constitute circumstantial evidences of his state of mind.

In this case it is not the truth or falsity of the conduct or words which matter. It is the fact
that the statement was made which is relevant. A testimony by the hearer that such statement
was made is not hearsay. Why? The hearer will be testifying as to his personal knowledge that
the statement was uttered. He may therefore, be cross-examined as to what he heard, when it
was heard, how it was said and the circumstances surrounding the making of the statement. The
hearer's veracity and sincerity can well be tested under a cross examination because he will not
be testifying as to the veracity of the assertion or as to its falsity which are totally irrrelevant.
.
Statements relating to the state of mind of the de clarant is one of those admissible out-of-
court statements if offered for non-hearsay purposes (29 Am Jur 2d, 708, 709).

There are other kinds of out-of-court statements that have been considered admissible
because they were offered for a non-hearsay purpose like statements relating to the state of mind
of the listener. Words uttered in this regard merely constitute circumstantial evidence of an
assertion and where the making of the statement is the significant fact because it either gives rise
to the inference about the declarant's state of mind or indicates its effect on the hearer. The truth
of the statement is not in issue here. A statement by an out-of-court declarant may be offered not
for the veracity of what is asserted but merely to impeach the declarant's credibility. A threat
against a witness may be offered in evidence to show its impact on the witness and where the
reasonableness of a person's conduct is an issue, an out-of-court declaration may be offered to
explain the person's reactions to the declaration.

OUT-OF-COURT-STATEMENT OFFERED TO PROVE

ITS EFFECT ON THE LISTENER OR HEARER

An out-of-court statement may be offered not only to prove the state of mind of the
declarant. It may also be used to show the state of mind of the hearer or listener. This state of
mind of the listener is oftentimes described in terms of the effect of the declarant's statement on
the hearer and why the listener acted in a particular manner. As in our previous illustration, the
statement here although out of court is presented not to prove the truth of the statement and
hence, non-hearsay.

Consider a prosecution for arbitrary detention. The accused is a police officer who
chanced upon the crime scene and arrested the complaining witness after he was fingered by a
witness to the felony. He is on the stand to testify on the circumstances surrounding the arrest.
Let us see whether or not a hearsay objection can be sustained.

Q: Sir, what were you doing on such and such place?

A: I was on a routine patrol.
Q: What happened on such and such date on such and such time?
A: I saw people milling around something in the corner of ABC and XYZ Sts.
Q: What if any did you do?
A: I got out of my patrol car to see what was happening.
Q: What if any did you see?
A: I saw a man lying face downward on the side of the street with blood all over his back.
Q: What happened next?
A: A man whispered to me. "This happened barely two minutes ago and that guy sitting
there pretending to be an onlooker is the culprit."

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The testimony, "This happened barely two minutes ago and that guy sitting
there pretending to be an onlooker is the culprit," is not offered to prove that (a) the incident
occurred two minutes ago, or (b) that the guy sitting and pretending to be an onlooker was the
culprit. The testimony is to prove that an arrest was made as a consequence of the out of court
statement's effect on the hearer. This effect was the reason for the arrest. This effect is relevant to
justify the apprehension of the complaining witness. "Words offered to prove the effect on the
hearer are admissible when they are offered to show their effect on one whose conduct is at
issue. This is an important category of non-hearsay evidence worth remembering. The statement
offered in evidence is not hearsay because it is the hearer's reaction to the statement which is
sought to be proved. It is his reaction to the statement that is relevant, not the truth of the
assertion in the statement. Since the hearer is present in court, he can be cross examined on
whether or not he heard the statement accurately, believed the statement to be true and whether
or not he really acted in conformity with his belief.

PEOPLE vs. ROLANDO MALIBIRAN

G.R. No. 178301, April 24, 2009

In this case, Oswaldo's testimony that he overhead a conversation between Rolando and
appellant that they would fetch a man in Bulacan who knew how to place a bomb in a vehicle is
admissible, if only to establish the fact that such statement was made and the tenor thereof.
Likewise, Janet may testify on matters not only uttered in her presence, since these may be
considered as independently relevant statements, but also personally conveyed to her by
appellant and Rolando.

OTHER EXCEPTIONS TO THE HEARSAY RULE

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

A dying declaration is one of the oldest exceptions to the hearsay rule. In fact, as early as
1928, the Supreme Court ruled anent the object of dying declarations that:

PEOPLE OF THE PHIL. vs. EUGENIO TOLEDO, ET AL.

G.R. No. L-28655, August 6, 1928

A dying declaration is admitted of necessity in order, as the Supreme Court of Mississippi

states, "to reach those man slayers who perpetrate their crimes when there are no other
eyewitnesses."

Other names given to dying declarations are ANTE MORTEM STATEMENT OR

STATEMENTS IN ARTICULO MORTIS.

One popular example of a dying declaration was in the movie “The Fugitive”. Dr. Richard
Kimble (Harrison Ford), a successful vascular surgeon in Chicago, comes home one night to find
his wife Helen fatally wounded by a man with a prosthetic arm, and though he attempts to subdue
the killer, the man escapes. The lack of evidence of a break-in, fingerprints being found on the
gun and the bullets, and Helen's misunderstood 911 call lead the Chicago Police Department to
charge Kimble with murder, and he is sentenced to death by lethal injection.

REASONS BEHIND EXCEPTION

PEOPLE OF THE PHILIPPINES vs. RENATO BAUTISTA

G.R. No. 111149, September 5, 1997

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There are two (2) obvious reasons for the admissibility of a dying declaration: (A)
NECESSITY and (B) TRUSTWORTHINESS. Necessity, because the declarant's death renders
impossible his taking the witness stand. And trustworthiness, since the declaration is "made in
extremity, when the party is at the point of death and every hope of this world is gone; when
every motive to falsehood is silenced, and the mind is induced by the most powerful
consideration to speak the truth. A situation so solemn and awful is considered by the law as
creating an obligation equal to that which is imposed by an oath administered in court."

CELESTINO MARTURILLAS VS. PEOPLE OF THE PHILIPPINES

G.R. No. 163217, April 18, 2006

Generally, witnesses can testify only to those facts derived from their own perception. A
recognized exception, though, is a report in open court of a dying person’s declaration made
under the consciousness of an impending death that is the subject of inquiry in the case.

Statements identifying the assailant, if uttered by a victim on the verge of death, are
entitled to the highest degree of credence and respect. Persons aware of an impending death
have been known to be genuinely truthful in their words and extremely scrupulous in their
accusations. The dying declaration is given credence, on the premise that no one who knows of
one’s impending death will make a careless and false accusation. Hence, not infrequently,
pronouncements of guilt have been allowed to rest solely on the dying declaration of the
deceased victim.

PROBATIVE VALUE OF DYING DECLARATIONS

PEOPLE OF THE PHILIPPINES vs. MAJOR EMILIO COMILING, ET AL.

G.R. No. 140405, March 4, 2004

An ante-mortem statement is evidence of the highest order. It is doctrinal that, when a

person is at the point of death, every motive of falsehood is silenced. The mind is induced by the
strongest of reasons to speak the truth – the declarant's impending meeting with his Creator.

REQUISITES

JESUS GERALDO and AMADO ARIATE vs. PEOPLE OF THE PHILIPPINES

G.R. No. 173608, November 20, 2008

A dying declaration is admissible as evidence if the following circumstances are present:

(a) it concerns the cause and the surrounding circumstances of the declarant's death;
(b) it is made when death appears to be imminent and the declarant is under a
consciousness of impending death;
(c) the declarant would have been competent to testify had he or she survived; and
(d) the dying declaration is offered in a case in which the subject of inquiry involves the
declarant's death.

APPLICATION OF THE REQUISITES

PEOPLE OF THE PHILIPPINES vs. SERENAS AND LABAD

G.R. No. 188124, June 29, 2010

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As an exception to the rule against hearsay evidence, a dying declaration or

ante mortem statement is evidence of the highest order and is entitled to utmost credence since
no person aware of his impending death would make a careless and false accusation.

In order for a dying declaration to be held admissible, four requisites must concur: first,
the declaration must concern the cause and surrounding circumstances of the declarant's death;
second, at the time the declaration was made, the declarant must be under the consciousness of
an impending death; third, the declarant is competent as a witness; and fourth, the declaration
must be offered in a criminal case for homicide, murder, or parricide, in which the declarant is the
victim.

Niño’s ante mortem statement was relayed to his brother Cesar, in this wise:

Q Cesar, will you please tell this Honorable court where were you on the night of
December 8, 2002 at about 9:30?
A I was near the crime scene, sir.
Q Where is this place?
A In N. Domingo, La Huerta, Parañaque City, sir.
Q At that time, what did you notice?
A There was a commotion on top of the bridge, sir.
Q So, what did you do?
A We verified it, sir.
Q After that, what did you do?
A I saw my brother coming, sir.
Q Who is this brother of yours that you saw?
A Niño Noel Ramos, sir.
Q When you saw Niño Noel approaching, what did you do?
A I asked him what the commotion was all about, sir.
Q What did he answer?
A He told me that he was stabbed, sir.
Q What else did he tell you?
A I asked him who stabbed him, sir.
Q What was his answer?
A He answered [to] me that it was Joe-an, sir.
Q What else did he tell you?
A He asked me to bring him to the hospital, sir.
Q What did you do when he asked you to bring him to the hospital?
A I held him up and brought him to the hospital, sir.
Q Why? What was the condition of your brother at that time?
A He was bloodied, sir.

All requisites for a dying declaration were sufficiently met by the statement of the victim
communicated to Cesar. First, the statement pertained to Niño being stabbed, particularly pin-
pointing Joe-An as the perpetrator. Second, Niño must have been fully aware that he was on the
brink of death considering his bloodied condition when Cesar met him near the bridge. Third, the
competence of Niño is unquestionable had he survived the stabbing incident. Fourth, Niño’s
statement was being offered in a criminal prosecution for his murder.

IT CONCERNS THE CAUSE AND THE SURROUNDING

CIRCUMSTANCES OF THE DECLARANT'S DEATH

For example. the husband was shot and wife was stabbed. The wife died instantly. The
husband was brought to the hospital and made a statement that it was X who stab his wife. The
husband then died. Is this a dying declaration?

The statement is not a dying declaration because it pertains to the cause and

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surrounding circumstances of the wife’s death and not of the declarant’s OWN death.

As another example, the father, who is suffering from a terminal disease, a few moments
before his death, told his son that since he is able to die, he will tell the son a secret. He then tells
his son that his brother, Homer, is not really his brother. The latter’s birth and filiation were
simulated. The father died. In a case later filed to settle the estate, the son seeks to exclude his
brother on the ground that he is not really an heir. Can the father’s revelation be considered a
dying declaration? Again, the answer is no. The fact of Homer’s legitimacy and filiation does not
pertain to the cause and surrounding circumstances of the declarant’s death.

The term “cause and the surrounding circumstances of the declarant's death” is easy
enough to understand. More often than not, it refers to the inquiry of who killed the declarant but it
does not preclude information as to the motive and other conditions that attended the killing of the
declarant.

IT IS MADE WHEN DEATH APPEARS TO BE IMMINENT

AND THE DECLARANT IS UNDER A CONSCIOUSNESS OF IMPENDING DEATH

This means that the declarant must have known that he would meet his death soon when
he made the declaration. It is a statement made in extemis. Consider the following example:

A was shot but he can still walk and talk. He went home to his house, cleaned up
his own wounds and went out to go to the hospital. Along the way, he rode a taxi. The
driver was a childhood friend, Fern. So Fern asked him what happened to him. He
answered that Dianne shot him but that he was okay. It was only a flesh wound. At the
hospital, A died after a couple of hours because of sepsis as one of his vital organs was
hit by the bullet.

Is the statement of A to Fern a dying declaration? No, because A made the statement
without having thought that he is already dying. He made the statement thinking that it was a
flesh wound and that he would survive it. In order to be admissible, the declarant must have
thought that he was about to die because it is the fact that the declaration is "made in extremity,
when the party is at the point of death and every hope of this world is gone; when every motive to
falsehood is silenced, and the mind is induced by the most powerful consideration to speak the
truth” that makes the declaration trustworthy.

CONSCIOUSNESS OF IMPENDING DEATH NEED NOT BE

EXPLICITLY STATED BUT MAY BE ESTABLISHED BY
CIRCUMSTANTIAL EVIDENCE

CELESTINO MARTURILLAS VS. PEOPLE OF THE PHILIPPINES

G.R. No. 163217, April 18, 2006

True, he made no express statement showing that he was conscious of his impending
death. The law, however, does not require the declarant to state explicitly a perception of the
inevitability of death. The perception may be established from surrounding circumstances, such
as the nature of the declarant’s injury and conduct that would justify a conclusion that there was a
consciousness of impending death. Even if the declarant did not make an explicit statement of
that realization, the degree and seriousness of the words and the fact that death occurred shortly
afterwards may be considered as sufficient evidence that the declaration was made by the victim
with full consciousness of being in a dying condition.

The victim need not state that he has lost all hope of recovery. It is sufficient that
circumstances are such as to inevitably lead to the conclusion that at the time the declaration was
made, the declarant would not expect to survive the injury from which he actually died.

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The degree and seriousness of the wounds and the fact that death supervened thereafter
constitute substantial evidence of the victim's consciousness of his impending death. (People v.
Tanaman, et al., G.R. No. 71768, July 28, 1987)

Dying declaration has weight even if declarant did not die immediately after his
declaration: The fact that the declarant died four (4) hours after his statement does not diminish
the probative value of the dying declaration since it is not indispensable that the a declarant
expires immediately thereafter.

It is the belief of impending death and not the rapid succession of death that renders the
dying declaration admissible. (People v. Bautista, G.R. No. 111149, September 5, 1997)

THE DECLARANT WOULD HAVE BEEN COMPETENT TO TESTIFY

HAD HE OR SHE SURVIVED

As with all testimony, the dying declaration will be inadmissible unless it is based on the
declarant's actual knowledge.

Suppose, for example, Homer bought a cup of coffee at the airport, and was stricken with
food poisoning. If his dying last words were that "the supplier of the coffee mix must have used
expired ingredients", that statement would be inadmissible despite the hearsay exception
because Homer had no way of knowing anything about the conditions in which the coffee was
made.

COMPETENCE here would also mean that the declarant was stating a matter of fact and
not a mere opinion of who caused the injury that later led to his death.

It also presupposes that, had he survived, he would qualify as a witness under Sections
20 and 21, to wit:
Section 20. Witnesses; their qualifications. - Except as provided in the next
succeeding section, all persons who can perceive, and perceiving, can make their known
perception to others, may be witnesses.

Religious or political belief, interest in the outcome of the case, or conviction of a

crime unless otherwise provided by law, shall not be ground for disqualification. (18a)

Section 21. Disqualification by reason of mental incapacity or immaturity. - The

following persons cannot be witnesses:
(a) Those whose mental condition, at the time of their production for examination,
is such that they are incapable of intelligently making known their perception to others;
(b) Children whose mental maturity is such as to render them incapable of
perceiving the facts respecting which they are examined and of relating them truthfully.
(19a)

COMPETENCE ALSO MEANS OPPORTUNITY TO SEE ASSAILANT

JESUS GERALDO and AMADO ARIATE vs. PEOPLE OF THE PHILIPPINES

G.R. No. 173608, November 20, 2008

It has not been established, however, that the victim would have been competent to
testify had he survived the attack. There is no showing that he had the opportunity to see his
assailant. Among other things, there is no indication whether he was shot in front, the post-

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mortem examination report having merely stated that the points of entry of the
wounds were at the "right lumbar area" and the "right iliac area." "Lumbar" may refer to "the loins"
or "the group of vertebrae lying between the thoracic vertebrae and the sacrum," or to "the region
of the abdomen lying on either side of the umbilical region and above the corresponding iguinal."
"Iliac" relates to the "ilium," which is "one of the three bones composing either lateral half of the
pelvis being in man broad and expanded above and narrower below where it joins with the
ischium and pubis to form part of the actabulum."

At all events, even if the victim's dying declaration were admissible in evidence, it must
identify the assailant with certainty; otherwise it loses its significance.

COMPETENCE ALSO MEANS THAT THE STATEMENT WAS UNCOERCED

CELESTINO MARTURILLAS VS. PEOPLE OF THE PHILIPPINES

G.R. No. 163217, April 18, 2006

Also, the statement was made freely and voluntarily, without coercion or suggestion, and
was offered as evidence in a criminal case for homicide. In this case, the declarant was the victim
who, at the time he uttered the dying declaration, was competent as a witness.

THE DYING DECLARATION IS OFFERED IN A CASE

IN WHICH THE SUBJECT OF INQUIRY INVOLVES THE DECLARANT'S DEATH.

IN ANY CASE

Under common law, which, as previously commented, is the precursor of our own
remedial law, limited the applicability of the exception of criminal cases involving homicide.
However, the Federal Rules of Evidence, cited often as the basis of our own rules, refused to
adopt the restrictive application of dying declarations in common law. Our own Rules, as
amended, clearly indicate that it is applicable “in any case” where the subject of inquiry involves
the declarant’s death which include both criminal and civil cases.

CRIMINAL CASES

Examples would be homicide, murder, parricide, robbery with homicide, rape with
homicide.

CIVIL CASES

This may apply in civil cases when the prosecution of the civil aspect is separately
instituted.

To my mind, it may also apply in cases of quasi-delicts such as in “hit-and-run” incidents.

A dying declaration may thus be introduced in evidence in such cases as to the cause of death
(bumping) and the surrounding circumstances (the victim was crossing the highway, the driver
was driving negligently).

DOES IT APPLY TO PROBATE CASES?

At first blush, it appears that the exception finds no applicability in probate cases where
the subject of inquiry is usually limited to the determination of whether or not the will meets all the

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statutory requirements for extrinsic validity as well as the testamentary capacity of the
testator.

However, take note that a testator may disinherit an heir. Under Article 919 of the Civil
Code:

Art. 919. The following shall be sufficient causes for the disinheritance of children
and descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an attempt against the
life of the testator, his or her spouse, descendants, or ascendants XXX

For example, the testator, before he died, said to his daughter that he had disinherited his
son because the son was the one who slowly poisoned him. The reason for the disinheritance
was stated in the will as required by law. During the probate proceedings, the son objected to the
disinheritance because according to him, the cause was not true. The daughter then testified
about what her father told her. Let us suppose that all the requisites of a dying declaration are
present, will the testimony of the daughter be admitted? To my mind yes, because the dying
declaration is circumstantial evidence of a fact in issue in the case, the disinheritance of the son.

THE DECLARANT MUST NOT HAVE SURVIVED

The requirement of the Rules is that the statement is offered in a case where the
declarant’s death is the subject of inquiry. This means actual death and does not apply to cases
of mere unavailability such as when the patient is in a comatose condition or merely “brain” dead.
There is no dying declaration in cases of homicide or murder in their attempted or frustrated
stage.

DOES THE REQUIREMENT OF DEATH INCLUDE

PRESUMPTIVE DEATH?

Anent this issue, the first question to be asked is: CAN A PROSECUTION FOR
UNLAWFUL KILLING BE MADE WITHOUT THE VICTIM BEING FOUND? The answer is yes, as
enunciated by the Supreme Court in the case of:

PEOPLE OF THE PHIL. vs. ABUNDIO ROLUNA

G.R. No. 101797 March 24, 1994

Corpus delicti has been defined as the body or substance of the crime and, in its primary
sense, refers to the fact that a crime has been actually committed. As applied to a particular
offense, it means the actual commission by someone of the particular crime charged. The
corpus delicti is a compound fact made up of two (2) things, viz: the existence of a certain act or
result forming the basis of the criminal charge, and the existence of a criminal agency as the
cause of this act or result.

Insofar as the death of Moronia is concerned, the fact that he was last seen on May 27,
1984 with his hands tied at the back and accompanied by eight (8) armed men undoubtedly
shows that his life was then in danger or peril. Coupled with the fact that Moronia has been
absent and unheard from since that time until the trial of this case (or a total of six years), a
presumption of death was sufficiently raised. This is in consonance with Section 5 (x) (3), Rule
131 of the Rules of Court, viz.:

The following shall be presumed dead for all purposes, including the division of
the estate among the heirs:
xxx xxx xxx

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(3) A person who has been in danger of death under other

circumstances and his existence has not been known for four (4) years.

In the early case of People v. Sasota, the Court affirmed the conviction of the accused for
murder although the body of the victim was not found or recovered. In said case, we ruled that in
case of murder or homicide, it is not necessary to recover the body of the victim or show where it
can be found. It is enough that the death and the criminal agency causing death is proven. The
Court recognized that there are cases where the death and intervention of the criminal agency
that caused it may be presumed or established by circumstantial evidence.

The next question to ask is, can there be a situation where a dying declaration can be
made in circumstances where there is presumptive death? Yes. Consider the following example:

A, B and C crash-landed in a deserted island. Before they were actually rescued,

A saw B clutching his stomach and saw that he appeared to be stabbed several times.
He then asked B what happened and B said that C stabbed him repeatedly with a jungle
knife. As he was saying this, a boat appeared at the horizon. Hoping for rescue, B swam
towards the direction of the boat. A few moments later, B disappeared at the deeper part
of the sea and was never found again. After 4 years, C was prosecuted for murder. Can
the statement made by B to A prior to his disappearance be considered a dying
declaration? It is submitted that it can be admitted as such. An analysis of the requisites
actually show that all the elements of a dying declaration are present.

WHAT IS THE EFFECT IF THE VICTIM SURVIVES?

If the victim survives but is unable to testify, the declaration can no longer be considered
a dying declaration. However, the declaration may still be admitted as part of the res gestae.

DYING DECLARATION MAY ALSO BE ADMITTED

IN FAVOR OF THE ACCUSED

A dying declaration may also be admitted in favor of the accused although it is often used
against the accused. In fact, the first use of the dying declaration exception in American law was
in the 1770 murder trial of the British soldiers responsible for the Boston Massacre. One of the
victims, Patrick Carr, told his doctor before he died that the soldiers had been provoked. The
doctor's testimony helped defense attorney John Adams to secure acquittals for some of the
defendants and reduced charges for the rest.

It may thus be used as proof of a justifying circumstance or as proof that another person
committed the killing other than the accused.

FORM OF DYING DECLARATIONS

A dying declaration may be made orally or in writing. It may be in writing as in the case of
PEOPLE OF THE PHILIPPINES vs. MAJOR EMILIO COMILING, ET AL., G.R. No. 140405,
March 4, 2004, where the dying declaration was made with the police investigators writing down
the statement and thumbmarked later by the deceased when he was still alive. It may be in the
form of an affidavit for as long as the requisites are present.

PEOPLE OF THE PHIL. vs. ALEX PADRONES

G.R. No. 85823 September 13, 1990

The victim's alleged antemortem statement is not in fact, an antemortem statement. It

was executed on August 13, 1986, when the deceased died on August 21, 1986. A dying

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declaration, to be one, must have been "under the consciousness of an impending

death. At the time he rendered it, he could not say that he was on the pangs of death, based on
his actual condition at that time, and that he believed that death was soon at hand.

It bears to stress that a mere cursory examination of the three signatures appearing on
the three-page statement, in bold and clear strokes with two of them occupying four inches of the
page, and in grand flourishes, pronounced and considered by the trial judge as a dying
declaration, precludes any indication that the signer thereof was under an impending death.
Further, if the deceased were truly on the point of death, he could not have had the strength to
affix three signatures as above described.

That being the case, Exhibit "D" constitutes hearsay evidence and is accordingly,
inadmissible.

CAN NON-VERBAL ACTS BE USED AS DYING DECLARATIONS?

As a general rule, no. A non-verbal act hardly qualifies as a dying declaration.

The mere gesture of a dying victim is inconclusive. The gesture of a dying woman in
pointing to a direction, when asked for the identity of her assailant, is too vague to be given such
probative value in determining the culpability of the accused.

Unlike an oral or a written declaration, a simple gesture of the hand unaccompanied by

words, is open to various interpretations by the witness who testifies to its existence. Thus, the
evidence comes to the court couched in the witness' second hand perception and possibly,
imbued with his personal meanings and biases. This is what makes hearsay evidence
objectionable. The second hand evidence is placed before the court without the benefit of cross-
examination by the party against whom it is brought, nor of any other means of assessing the
competence and credibility of the source. (People v. Ola, G.R. No. L-47147, July 3, 1987)

ADMISSIBILITY IS DIFFERENT FROM WEIGHT

What the law merely assures is admissibility. There is no assurance that the dying
declaration is automatically believed. If it is controverted by other competent evidence, the dying
declaration may be set aside.

DOCTRINE OF COMPLETENESS

A dying declaration is complete when it is a full expression of all that the declarant
wanted to say with regard to the circumstances of his death (PEOPLE OF THE PHILIPPINES vs.
MAJOR EMILIO COMILING, ET AL., G.R. No. 140405, March 4, 2004).

PEOPLE OF THE PHIL. vs. PIOQUINTO C. DE JOYA

G.R. No. 75028, November 8, 1991

It has been held that a dying declaration to be admissible must be complete in itself. To
be complete in itself does not mean that the declarant must recite everything that constituted the
res gestae of the subject of his statement, but that his statement of any given fact should be a full
expression of all that he intended to say as conveying his meaning in respect of such fact. The
doctrine of completeness has also been expressed in the following terms in Prof. Wigmore's
classic work:

The application of the doctrine of completeness is here peculiar. The statement

as offered must not be merely apart of the whole as it was expressed by the declarant; it
must be complete as far it goes. But it is immaterial how much of the whole affair of the

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death is related, provided the statement includes all that the declarant wished
or intended to include in it. Thus, if an interruption (by death or by an intruder) cuts short
a statement which thus remains clearly less than that which the dying person wished to
make, the fragmentary statement is not receivable, because the intended whole is not
there, and the whole might be of a very different effect from that of the fragment; yet if the
dying person finishes the statement he wishes to make, it is no objection that he has told
only a portion of what he might have been able to tell.

PEOPLE OF THE PHILIPPINES vs. EDUARDO MEDINA

G.R. No. 155256, July 30, 2004

Henry Aniversario’s positive identification of Eduardo was further corroborated by

Nelson’s dying declaration, as relayed to Nilda, identifying Eduardo as the person responsible for
the crime. As testified by Nilda, his brother Nelson identified Eduardo as his assailant. Nelson’s
declaration, uttered after he was shot and at the point of death, constituted a dying declaration.
While, generally, a witness can testify only to those facts which are derived from his own
perception, a recognized exception thereto is the reportage in open court of the declaration of a
dying person made under the consciousness of an impending death where that person’s death is
the subject of inquiry in the case.

To be admissible, a dying declaration must (1) refer to the cause and circumstances
surrounding the declarant’s death; (2) be made under the consciousness of an impending death;
(3) be made freely and voluntarily without coercion or suggestions of improper influence; (4) be
offered in a criminal case in which the death of the declarant is the subject of inquiry; and (5) the
declarant must have been competent to testify as a witness had he been called upon to testify.

These requisites were sufficiently met in this case. Nelson, having been shot and hit on
the chest and thigh, was already weak when he reached the doorstep of their house. Upon
reaching their doorstep, Nelson wasted no time in uttering to his sister, Nilda, dalhin mo ako sa
ospital. Nadali ako ni Eddie Boy Fluid. May kinalaman si Gerry Conti dahil kanya ang baril. (Nilda,
bring me to a hospital. Eddie Boy Fluid got me. Gerry Conti has something to do with it as he
owns the gun.) Feeling the weariness caused by his wounds and loss of blood, he uttered those
words to his sister Nilda, asking to be brought to the hospital and informing her as to who is
responsible for the crime at the same time. His consciousness of the seriousness of his condition
was shown by his desire to be given immediate medical attention and his statement on the
identity of the perpetrator of the crime, evidently out of fear that failing to do so could be too late.
Indeed, Nelson shortly expired thereafter, thirty (30) minutes from arriving at the hospital due to
exsanguination or severe loss of blood.

Moreover, Eduardo did not repudiate the testimony of Nilda regarding Nelson’s dying
declaration but merely alleged that he could not have been the Eddie Boy Fluid referred to by
Nelson. While he admitted that he is known as Eddie Boy Fluid, Eduardo alleged that Eduardo
Viñas, another neighbor, is also known by that name. Both the prosecution and the defense
witnesses acknowledged that there is another person known as Eddie Boy Fluid in their
neighborhood. However, the victim’s dying declaration not only identified Eddie Boy Fluid as the
assailant but also indicated that the same Eddie Boy Fluid is associated with Gerardo Conti.
Eduardo’s close association with Gerardo Conti was affirmed by both himself and Gerardo Conti.
While there appears to be no basis for the victim’s declaration of Gerardo Conti’s involvement in
the crime, Eddie Boy Fluid’s association to Gerardo Conti supports the conclusion that the Eddie
Boy Fluid referred to by Nelson was no other than Eduardo.

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

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against third persons. (32a

BASIS AND REQUISITES

ALEJANDRO FUENTES, JR. vs. COURT OF APPEALS

G.R. No. 111692, February 9, 1996

One of the recognized exceptions to the hearsay rule is that pertaining to declarations
made against interest. Sec. 38 of Rule 130 of the Rules of Court provides that "(t)he declaration
made by a person deceased, or unable to testify, against the interest of the declarant, if the fact
asserted in the declaration was at the time it was made so far contrary to declarant's own
interest, that a reasonable man in his position would not have made the declaration unless he
believed it to be true, may be received in evidence against himself or his successors in interest
and against third persons." The admissibility in evidence of such declaration is grounded on
necessity and trustworthiness.

There are three (3) essential requisites for the admissibility of a declaration against
interest: (a) the declarant must not be available to testify; (b) the declaration must concern a fact
cognizable by the declarant; and (c) the circumstances must render it improbable that a motive to
falsify existed.

DISTINGUISHED FROM ADMISSION AGAINST INTEREST

MARISSA R. UNCHUAN vs. ANTONIO J.P. LOZADA, ET AL.

G.R. No. 172671, April 16, 2009
ALEJANDRA S. LAZARO, ET AL. vs. MODESTA AGUSTIN
G.R. No. 152364, April 15, 2010

It has long been settled that these admissions are admissible even if they are hearsay.
Indeed, there is a vital distinction between admissions against interest and declaration against
interest. Admissions against interest are those made by a party to a litigation or by one in privity
with or identified in legal interest with such party, and are admissible whether or not the declarant
is available as a witness. Declaration against interest are those made by a person who is neither
a party nor in privity with a party to the suit, are secondary evidence and constitute an exception
to the hearsay rule. They are admissible only when the declarant is unavailable as a witness.
Thus, a man’s acts, conduct, and declaration, wherever made, if voluntary, are admissible against
him, for the reason that it is fair to presume that they correspond with the truth, and it is his fault if
they do not.

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

MARIA JEANETTE C. TECSON, ET AL. vs. COMELEC, FPJ, ET AL.

G.R. Nos. 161434, 161634 & 161824, March 3, 2004

The proof of filiation or paternity for purposes of determining his citizenship status should
thus be deemed independent from and not inextricably tied up with that prescribed for civil law
purposes. The Civil Code or Family Code provisions on proof of filiation or paternity, although

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good law, do not have preclusive effects on matters alien to personal and family
relations. The ordinary rules on evidence could well and should govern. For instance, the matter
about pedigree is not necessarily precluded from being applicable by the Civil Code or Family
Code provisions.

Section 39, Rule 130, of the Rules of Court provides –

"Act or Declaration about pedigree. The act or declaration of a person deceased,

or unable to testify, in respect to the pedigree of another person related to him by birth or
marriage, may be received in evidence where it occurred before the controversy, and the
relationship between the two persons is shown by evidence other than such act or
declaration. The word `pedigree’ includes relationship, family genealogy, birth, marriage,
death, the dates when and the places where these facts occurred, and the names of the
relatives. It embraces also facts of family history intimately connected with pedigree."

For the above rule to apply, it would be necessary that (a) the declarant is already dead
or unable to testify, (b) the pedigree of a person must be at issue, (c) the declarant must be a
relative of the person whose pedigree is in question, (d) declaration must be made before the
controversy has occurred, and (e) the relationship between the declarant and the person whose
pedigree is in question must be shown by evidence other than such act or declaration.

Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of Bessie
Kelley Poe submitted as Exhibit 20 before the COMELEC, might be accepted to prove the acts of
Allan F. Poe, recognizing his own paternal relationship with FPJ, i.e, living together with Bessie
Kelley and his children (including respondent FPJ) in one house, and as one family.

TISON vs. COURT OF APPEALS

G.R. No. 121027, July 31, 1997

Petitioners' evidence, as earlier explained, consists mainly of the testimony of Corazon

Dezoller Tison, the baptismal, death and marriage certificates, the various certifications from the
civil registrar, a family picture, and several joint affidavits executed by third persons all of which
she identified and explained in the course and as part of her testimony.

The primary proof to be considered in ascertaining the relationship between the parties
concerned is the testimony of Corazon Dezoller Tison to the effect that Teodora Dezoller
Guerrero in her lifetime, or sometime in 1946, categorically declared that the former is Teodora's
niece. Such a statement is considered a declaration about pedigree which is admissible, as an
exception to the hearsay rule, under Section 39, Rule 130 of the Rules of Court, subject to the
following conditions: (1) that the declarant is dead or unable to testify; (2) that the declarant be
related to the person whose pedigree is the subject of inquiry; (3) that such relationship be shown
by evidence other than the declaration; and (4) that the declaration was made ante litem motam,
that is, not only before the commencement of the suit involving the subject matter of the
declaration, but before any controversy has arisen thereon.

There is no dispute with respect to the first, second and fourth elements. What remains
for analysis is the third element, that is, whether or not the other documents offered in evidence
sufficiently corroborated the declaration made by Teodora Dezoller Guerrero in her lifetime
regarding the pedigree of petitioner Corazon Dezoller Tison or, if at all, it is necessary to present
evidence other than such declaration.

American jurisdiction has it that a distinction must be made as to when the relationship of
the declarant may be proved by the very declaration itself, or by other declarations of said
declarant, and when it must be supported by evidence aliunde. The rule is stated thus:

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One situation to be noted is that where one seeks to set up a claim

through, but not from, the declarant and to establish the admissibility of a declaration
regarding claimant's pedigree, he may not do by declarant's own statements as to
declarant's relationship to the particular family. The reason is that declarant's declaration
of his own relationship is of a self-serving nature. Accordingly there must be precedent
proof from other sources that declarant is what he claimed to be, namely, a member of
the particular family; otherwise the requirement to admissibility that declarant's
relationship to the common family must appear is not met. But when the party claiming
seeks to establish relationship in order to claim directly from the declarant or the
declarant's estate, the situation and the policy of the law applicable are quite different. In
such case the declaration of the decedent, whose estate is in controversy, that he was
related to the one who claims his estate, is admissible without other proof of the fact of
relationship. While the nature of the declaration is then disserving, that is not the real
ground for its admission. Such declarations do not derive their evidential value from that
consideration, although it is a useful, if not an artificial, aid in determining the class to
which the declarations belong. The distinction we have note is sufficiently apparent; in
the one case the declarations are self-serving, in the other they are competent from
reasons of necessity.

The general rule, therefore, is that where the party claiming seeks recovery against a
relative common to both claimant and declarant, but not from the declarant himself or the
declarant's estate, the relationship of the declarant to the common relative may not be proved by
the declaration itself. There must be some independent proof of this fact. As an exception, the
requirement that there be other proof than the declarations of the declarant as to the relationship,
does not apply where it is sought to reach the estate of the declarant himself and not merely to
establish a right through his declarations to the property of some other member of the family.

We are sufficiently convinced, and so hold, that the present case is one instance where
the general requirement on evidence aliunde may be relaxed. Petitioners are claiming a right to
part of the estate of the declarant herself. Conformably, the declaration made by Teodora
Dezoller Guerrero that petitioner Corazon is her niece, is admissible and constitutes sufficient
proof of such relationship, notwithstanding the fact that there was no other preliminary evidence
thereof, the reason being such declaration is rendered competent by virtue of the necessity of
receiving such evidence to avoid a failure of justice. More importantly, there is in the present case
an absolute failure by all and sundry to refute that declaration made by the decedent.

From the foregoing disquisitions, it may thus be safely concluded, on the sole basis of
the decedent's declaration and without need for further proof thereof, that petitioners are the
niece and nephew of Teodora Dezoller Guerrero. As held in one case, where the subject of the
declaration is the declarant's own relationship to another person, it seems absurb to require, as a
foundation for the admission of the declaration, proof of the very fact which the declaration is
offered to establish. The preliminary proof would render the main evidence unnecessary.

Applying the general rule in the present case would nonetheless produce the same
result. For while the documentary evidence submitted by petitioners do not strictly conform to the
rules on their admissibility, we are however of the considered opinion that the same may be
admitted by reason of private respondent's failure to interpose any timely objection thereto at the
time they were being offered in evidence. It is elementary that an objection shall
be made at the time when an alleged inadmissible document is offered in evidence, otherwise,
the objection shall be treated as waived, since the right to object is merely a privilege which the
party may waive.

As explained in Abrenica vs. Gonda, et al., it has been repeatedly laid down as a rule of
evidence that a protest or objection against the admission of any evidence must be made at the
proper time, otherwise it will be deemed to have been waived. The proper time is when from the

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question addressed to the witness, or from the answer thereto, or from the
presentation of the proof, the inadmissibility of the evidence is, or may be inferred.

Thus, a failure to except to the evidence because it does not conform with the statute is a
waiver if the provisions of the law. That objection to a question put to a witness must be made at
the time the question is asked. An objection to the admission of evidence on the ground of
incompetency, taken after the testimony has been given, is too late. Thus, for instance, failure to
object to parol evidence given on the stand, where the party is in a position to object, is a waiver
of any objections thereto.

The situation is aggravated by the fact that counsel for private respondent unreservedly
cross-examined petitioners, as the lone witness, on the documentary evidence that were offered.
At no time was the issue of the supposed inadmissibility thereof, or the possible basis for
objection thereto, ever raised. Instead, private respondent's counsel elicited answers from the
witness on the circumstances and regularity of her obtention of said documents: The
observations later made by private respondent in her comment to petitioners' offer of exhibits,
although the grounds therefor were already apparent at the time these documents were being
adduced in evidence during the testimony of Corazon Dezoller Tison but which objections were
not timely raised therein, may no longer serve to rectify the legal consequences which resulted
therefrom. Hence, even assuming ex gratia argumenti that these documents are inadmissible for
being hearsay, but on account of herein private respondent's failure to object thereto, the same
may be admitted and considered as sufficient to prove the facts therein asserted.
Accordingly, the Certificate of Marriage (Exhibit S) wherein it is indicated that the parents
of Teodora Dezoller are Isabelo Dezoller and Cecilia Calpo, as well as the Certificates of Baptism
of Teodora Dezoller (Exhibit H) and Hermogenes Dezoller (Exhibit J) which both reflect the
names of their parents as Isabelo Dezoller and Cecilia Calpo, to show that Hermogenes Dezoller
is the brother of Teodora Dezoller Guerrero; and the Death Certificate of Hermogenes Dezoller
(Exhibit K) the entries wherein were made by petitioner Corazon Dezoller Tison as his daughter,
together with the Joint Affidavits of Pablo Verzosa and Meliton Sitjar (Exhibits N and P), to prove
that herein petitioners are the children of Hermogenes Dezoller — these can be deemed to have
sufficiently established the relationship between the declarant and herein petitioners. This is in
consonance with the rule that a prima facie showing is sufficient and that only slight proof of the
relationship is required. Finally, it may not be amiss to consider as in the nature of circumstantial
evidence the fact that both the declarant and the claimants, who are the subject of the
declaration, bear the surname Dezoller.

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

SCOPE
FRANCISCO L. JISON vs. COURT OF APPEALS
G.R. No. 124853 February 24, 1998

Rule 130, Section 40, provides:

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

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It is evident that this provision may be divided into two (2) parts: the portion
containing the first underscored clause which pertains to testimonial evidence, under which the
documents in question may not be admitted as the authors thereof did not take the witness stand;
and the section containing the second underscored phrase. What must then be ascertained is
whether Exhibits S to V, as private documents, fall within the scope of the clause "and the like" as
qualified by the preceding phrase "[e]ntries in family bibles or other family books or charts,
engravings on rights [and] family portraits,"

We hold that the scope of the enumeration contained in the second portion of this
provision, in light of the rule of ejusdem generis, is limited to objects which are commonly known
as "family possessions," or those articles which represent, in effect, a family's joint statement of
its belief as to the pedigree of a person. These have been described as objects "openly exhibited
and well known to the family," or those "which, if preserved in a family, may be regarded as giving
a family tradition." Other examples of these objects which are regarded as reflective of a family's
reputation or tradition regarding pedigree are inscriptions on tombstones, monuments or coffin
plates.

PEOPLE OF THE PHILIPPINES vs. FELINO LLANITA y OPIANA

G.R. No. 134101, September 5, 2001

Article 336 of the Revised Penal Code, as amended by Section 11 of R.A. 7659, insofar
as applicable, reads:

"The death penalty shall also be imposed if the crime of rape is committed with
any of the following attendant circumstances:

xxx xxx xxx

4. when the victim is a religious or a child below seven (7) years old." (Emphasis
supplied)

The prosecution is tasked with the burden of proving the age of the victim beyond
reasonable doubt in order to appreciate age as a qualifying circumstance.

In the present case, although the only evidence presented by the prosecution to establish
that CATHERINE was below seven (7) years old at the time of the commission of the rape was
her own testimony, there is no reason to doubt the sufficiency of the said evidence. Her testimony
as to her age was never questioned by the accused-appellant in the lower court and remained
unrebutted at the trial. And such testimony regarding her age is admissible although hearsay, for
she can have no personal knowledge of the date of her birth, as all knowledge as to one's age is
acquired from whatever is told by the parents or relatives and such testimony constitutes an
assertion of family tradition. It is admissible under Section 40 of Rule 130 of the Rules of Court
(Revised Rules on Evidence) which reads:

"SECTION 40. Family reputation or tradition regarding pedigree — The

reputation or tradition existing in a family previous to the controversy, in respect to the
pedigree of any of its members, may be received in evidence if the witness testifying
thereon be also a member of the family, either by consanguinity or affinity. x x x"

The above provision contains three requisites for its admissibility, namely: 1.) that there is
a controversy in respect to the pedigree of any of the members of a family; 2.) that the reputation
or tradition of the pedigree existed previous to the controversy; and 3.) that the witness testifying
to the reputation or tradition regarding the pedigree of the person must be a member of the family
of said person. The word "pedigree" under Section 39 of the same Rule includes relationship,
family genealogy, birth, marriage, death, the dates when and places where these facts occurred
and the names of relatives. All three requisites are present in the case at bar.

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Admittedly, there have recently been cases where the court applied a more
rigid rule requiring that the prosecution present the birth certificate or other documentary
evidence when testimonial evidence is insufficient or unreliable to prove the age of the victim.
Thus, in People vs. Javier, People vs. Tipay, and People vs. Cula, it was ruled that independent
proof other than testimonial evidence is required to prove the victim's age in cases when the age
of the victim is alleged to fall within fifteen (15) to eighteen (18) years old. We ratiocinated that "in
this age of modernism, there is hardly a difference between a 16-year old girl and an 18-year old
one insofar as physical features and attributes are concerned" and that "the crucial years pertain
to the ages of fifteen to seventeen where minority may seem dubitable due to one's physical
appearance". In People vs. Brigildo, the testimonies of the prosecution witnesses respecting the
age of the victim were deemed insufficient considering that the records were unclear as to the
victim's exact age. The Informations therein alleged that the victim was eleven (11) years old
when she was raped yet, when the victim testified a year later, she stated that she was still
eleven (11) years old. Moreover, the testimony of her mother was to the effect that the victim was
already fifteen (15) years old at the time she was raped. Given that the true age of the victim was
put in doubt, the court considered the evidence presented insufficient to prove her age.

This Court has also pronounced that the presentation of the birth certificate or any other
official document is no longer necessary to prove minority. Thus, when as in this case, the age of
the victim was never put in doubt and was in fact sufficiently established, there is no
corresponding obligation on the part of the prosecution to present other evidence if the testimony
of the witness who is competent to testify is sufficient to prove the age of the victim. The
presentation of the birth certificate would merely be corroborative of the evidence already,
presented. In his testimony, the accused-appellant himself, who claimed that CATHERINE was
his niece as her mother was his first cousin, admitted that CATHERINE was "five years old last
1996". Had the accused-appellant indeed doubted the age of the victim, he could have presented
her birth certificate. We also note that the certified true copy of CATHERINE's birth certificate
which was submitted to this Court pursuant to our Resolution dated October 10, 2000 confirms
that CATHERINE was born on June 19, 1990 and was thus only five years old at the time she
was raped.

Section 41. Common reputation. - Common reputation existing previous to the

controversy, respecting facts of public or general interest more than thirty years old, or
respecting marriage or moral character, may be given in evidence. Monuments and
inscriptions in public places may be received as evidence of common reputation. (35

COMMON REPUTATION REGARDING MORAL CHARACTER

CIVIL SERVICE COMMISSION vs. ALLYSON BELAGAN

G.R. No. 132164, October 19, 2004

Credibility means the disposition and intention to tell the truth in the testimony given. It
refers to a person’s integrity, and to the fact that he is worthy of belief. A witness may be
discredited by evidence attacking his general reputation for truth, honesty or integrity. Section 11,
Rule 132 of the same Revised Rules on Evidence reads:

"SEC. 11. Impeachment of adverse party’s witness. –A witness may be

impeached by the party against whom he was called, by contradictory evidence, by
evidence that his general reputation for truth, honesty, or integrity is bad, or by evidence
that he has made at other times statements inconsistent with his present testimony, but
not by evidence of particular wrongful acts, except that it may be shown by the
examination of the witness, or the record of the judgment, that he has been convicted of
an offense."
Although she is the offended party, Magdalena, by testifying in her own behalf, opened
herself to character or reputation attack pursuant to the principle that a party who becomes a

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witness in his own behalf places himself in the same position as any other witness,
and may be impeached by an attack on his character or reputation.

With the foregoing disquisition, the Court of Appeals is correct in holding that the
character or reputation of a complaining witness in a sexual charge is a proper subject of inquiry.
This leads us to the ultimate question – is Magdalena’s derogatory record sufficient to discredit
her credibility?

A careful review of the record yields a negative answer.

First, most of the twenty-two (22) cases filed with the MTC of Baguio City relate to acts
committed in the 80’s, particularly, 1985 and 1986. With respect to the complaints filed with the
Chairmen of Barangay Gabriela Silang and Barangay Hillside, the acts complained of took place
in 1978 to 1979. In the instant administrative case, the offense was committed in 1994. Surely,
those cases and complaints are no longer reliable proofs of Magdalena’s character or reputation.
The Court of Appeals, therefore, erred in according much weight to such evidence. Settled is the
principle that evidence of one’s character or reputation must be confined to a time not too remote
from the time in question. In other words, what is to be determined is the character or reputation
of the person at the time of the trial and prior thereto, but not at a period remote from the
commencement of the suit. Hence, to say that Magdalena’s credibility is diminished by proofs of
tarnished reputation existing almost a decade ago is unreasonable. It is unfair to presume that a
person who has wandered from the path of moral righteousness can never retrace his steps
again. Certainly, every person is capable to change or reform.

PEOPLE OF THE PHILIPPINES vs. ELEUTERIO ADONIS

G.R. No. 98196 January 31, 1995

The testimony of the Barangay Captain was given neither credence nor weight by the
trial court. While the accused may prove the bad moral character of the victim, the proof must be
of his general reputation in the community and not merely of isolated and specific acts. Thus, the
mere allegation that a complaint for theft had been filed against the victim cannot establish his
general reputation. Besides, there was no showing that Basas was ever convicted of that charge,
assuming it had ever been filed.

COMMON REPUTATION REGARDING MARRIAGE

Attendance in weddings and baptisms where a man and a woman purport themselves to
be husband and wife is evidence of common reputation regarding marriage (ARTURIO
TRINIDAD vs. COURT OF APPEALS, G.R. No. 118904, April 20, 1998).

Section 42. Part of res gestae. - Statements made by a person while a starting occurrence
is taking place or immediately prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as part of res gestae. So, also,
statements accompanying an equivocal act material to the issue, and giving it a legal
significance, may be received as part of the res gestae.

BASIS OF RES GESTAE

Res gestae is based on the belief that because certain statements are made naturally,
spontaneously and without deliberation during the course of an event, they leave little room for
misunderstanding or misinterpretation upon hearing by someone else (i.e. by the witness who will
later repeat the statement to the court) and thus the courts believe that such statements carry a
high degree of credibility. Under Federal Rules, statements which can be admitted into evidence
as res gestae fall into three headings:
1. Words or phrases which either form part of, or explain, a physical act,
2. Exclamations which are so spontaneous as to belie concoction, and

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3. Statements which are evidence as to someone's state of mind.

In some jurisdictions, the res gestae exception has also been used to admit police sketches.

DEFINITION BY THE SUPREME COURT

Res gestae refers to statements made by the participants or the victims of, or the
spectators to, a crime immediately before, during, or after its commission. These statements are
a spontaneous reaction or utterance inspired by the excitement of the occasion, without any
opportunity for the declarant to fabricate a false statement. An important consideration is whether
there intervened, between the occurrence and the statement, any circumstance calculated to
divert the mind and thus restore the mental balance of the declarant; and afford an opportunity for
deliberation.

This is also known as an EXCITED UTTERANCE which is a statement made by a person

in response to a startling or shocking event or condition. The statement must be spontaneously
made by the person (the declarant) while still under the stress of excitement from the event or
condition. The subject matter and content of the statement must "relate to" event or condition.
The statement could be a description or explanation (as required for present sense impression),
or an opinion or inference. Examples include: "Look out! We're going to crash!" or "I think he's
crazy. He's shooting at us!" The basis for this hearsay exception is the belief that a statement
made under the stress is likely to be trustworthy and unlikely to be premeditated falsehoods.
Compared to present sense impression, excited utterance is broader in scope for permitting a
longer time lapse between event and statement, and a wider range of content in the statement.

Under the Federal Rules of Evidence, an excited utterance is a hearsay exception, and is
admissible to prove the truth of the statement itself (e.g., in the case of the first quotation above,
to prove that the vehicle the declarant was riding in was, in fact, about to crash). To prove the
truth of the statement means to persuade the finder of fact to believe the affirmative sense of the
statement. "Truth" here does not mean truth from the subjective point of view of the declarant or
from the objective point of view of a reasonably prudent person. It simply refers to the affirmative
assertion of the statement.

WHY ARE PARTS OF THE RES GESTAE ADMITTED AS EXCEPTIONS?

The justification is the same as in dying declarations: NECESSITY AND

TRUSTWORTHINESS.

There is necessity because, due to the unavailability of the declarant, there is otherwise no way
to know the existence and condition of the declarant. There is trustworthiness because this
exception presupposes a declaration made out of instinct and spontaneity and the lack of
opportunity to contrive or concoct a story.

WHAT ARE ADMISSIBLE AS PART OF THE RES GESTAE?

1. Statements made by a person while a starting occurrence is taking place or immediately

prior or subsequent thereto with respect to the circumstances thereof;
2. Statements accompanying an equivocal act material to the issue and giving it legal
significance.

TWO CONCEPTS

A. Spontaneous Statements

SPONTANEOUS STATEMENT: X barged into the house of Y, tied her to a chair and

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robbed her. X brought Y’s maid to a bedroom and raped her. Y could hear the maid
crying: “Huwag! Maawa ka sa akin!”. When X fled, Y with the maid rushed to the police station
and told the police what happened. The maid told the police that despite her pleas X still raped
her. The police noticed that the maid was hysterical and on the verge of collapse. X was charged
with robbery with rape. During the trial the maid could no longer be located. The prosecution
presents the policeman to testify on what the maid told him. [The testimony would be hearsay but
as an exception to the hearsay rule. The statements made by the maid fall within the res gestae
rule]

REQUISITES TO BE CONSIDERED A SPONTANEOUS STATEMENT

A declaration is deemed part of the res gestae and admissible in evidence as an

exception to the hearsay rule, when the following requisites concur: 1) the principal act, the res
gestae, is a startling occurrence; 2) the statements were made before the declarant had time to
contrive or devise; and 3) the statements concerned the occurrence in question and its
immediately attending circumstances.
B. Statements accompanying Equivocal Acts- Equivocal means ambiguous; capable of different
interpretations.

EQUIVOCAL/VERBAL ACTS: A witness testifies on the stand for the plaintiff in a

collection case where the defendant denies having borrowed P10,000 from the plaintiff. The debt
is not evidenced by a promissory note because plaintiff claims that defendant had orally borrowed
money from him in the past and had always paid. This time he refuses to pay. The witness
testifies that one year ago he saw the plaintiff give money to the defendant. And that he heart the
plaintiff said that: “Here’s the money you are borrowing from me.” Further, he said that he heard
the defendant say: “Thank you, I will pay one year after.” [Here the equivocal act of handing the
money was given significance by the statement of the plaintiff

SPONTANEOUS EXCLAMATION VERBAL ACT

Principal fact is a startling occurrence.
Statement may preceded, accompany or
succeed the startling occurrence.
Statement need not explain the principal fact.
Principal fact is an equivocal act.
Statement must accompany the equivocal act
Statement must explain the principal fact and
give it legal significance

ANOTHER EXCEPTION IN RELATION TO RES GESTAE

6. PRESENT SENSE IMPRESSION.

A present sense impression, in the law of evidence, is a statement made by a person (the
declarant) that conveys his or her sense of the state of an event or the condition of something.
The statement must be spontaneously made while the person was perceiving (i.e.
contemporaneous with) the event or condition, or "immediately thereafter." The permissible time
lapse between event and statement may range from seconds to minutes, but probably not hours.
The subject matter and content of the statement are limited to descriptions or explanations of the
event or condition, therefore opinions, inferences, or conclusions about the event or condition are
not present sense impressions. An example of present sense impression is of a person saying,
"it's cold" or "we're going really fast".

Under the Federal Rules of Evidence, a statement of present sense impression is an

exception to the prohibition on use of hearsay as evidence at a trial or hearing, and is therefore
admissible to prove the truth of the statement itself (i.e. to prove that it was in fact cold at the time
the person was speaking, or to prove that the person was indeed traveling very fast). The basis

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for this exception is the belief that the statement is likely reliable and true, as there is
no time for reflection, distortion, or fabrication.

The witness testifying about the statement need not be the declarant who, with firsthand
knowledge about the event and condition, would normally make a better witness. The witness
must have personal knowledge of declarant's making of the statement, but need not have
personal knowledge of the event or the content of the statement. For example, a policeman
observed from a distance that a reporter was dictating into a voice-recorder while a shooting was
going on, but could not hear what the reporter was dictating. The reporter is unavailable to testify.
The policeman testifies that he saw the reporter make the dictation. Upon proper authentication,
that portion of the audio-recording containing descriptions or explanations of the shooting is
admissible as present sense impression.

In order to fall under this exception, the following factors must exist:

1. Immediacy: The present-sense-impression exception applies only if virtually no time

passes between the event being perceived and the declarant’s statement about it.

2. Must describe or explain: The present sense impression must describe or explain the
event that the declarant has perceived.

LOZANO vs. PEOPLE OF THE PHILIPPINES

G.R. No. 165582, July 9, 2010

The record showed that barangay tanod Jose Lazaro, Jr. personally saw appellant and
his co-accused Lorenzo Remeses Tubis load the tires onto their vehicle. Few moments after his
witness called his fellow barangay tanods to intercept the vehicle, he was informed that the
appellant and his criminal associates had been arrested and the tires were recovered from their
possession. Immediately thereafter, the recovered tires were confirmed by Ms. Gonzales herself
as the very tires stolen from her car. In the words of Lazaro, Jr.’s Sinumpaang Salaysay:

"Na ilang sandali ay may tumawag sa akin na nakuha na ang naturang sasakyan
at naroon nga ang dalawang gulong at ipinatawag ang complainant na si Paz Gonzales
at Novo Gabriel (na biktima ng naturang kaso) at pagdating ay nakita ang kotse at ng
ipakita ang gulong ay positibong nakilala ni Novo Gabriel at pinatibay ni Paz Gonzales na
iyon ay nakakabit sa Nissan Sentra UGJ 952 nila."

The connection among these details is too close and too obvious: the stolen tires were
found in the possession of appellant and his co-accused.

Moreover, the information conveyed to Lazaro, Jr. by one of his fellow tanods regarding
the arrest of appellant and his cohorts and the recovery of the tires is admissible to prove that the
stolen tires were actually found in the possession of appellant and his partners. While said
information may have consisted of out-of-court statements by an out-of-court declarant (Lazaro,
Jr.), this person could have testified thereon (as he in fact did), as a ‘present sense impression.’

A statement describing or explaining an event or condition made while the declarant was
perceiving the event or condition, or immediately thereafter, is not barred by the rule against
hearsay. The rationale for the ‘present sense impression’ exception is that (1) There is no
substantial danger that defects in the declarant’s memory will affect the value of the statement;
(2) the declarant would not have had much time to fabricate before making the statement; and (3)
in many cases, the person to whom the statement was addressed would have been in a position
to check its accuracy; hence, the declarant could speak with care.

In the present case, there is no doubt that the barangay tanod who reported the arrest
and recovery to Lazaro, Jr. did not have the opportunity to fabricate his statement as he instantly

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transmitted the information to Lazaro, Jr. who verified the correctness and truthfulness
of such account.

DYING DECLARATION vs. RES GESTAE

Time when statements made:

DYING DECLARATION- statements must be made after the injury has been inflicted upon the
applicant.

RES GESTAE- in so far as startling occurrence is concerned, the statements could be made prior
or simultaneous with or after the startling occurrence.

Death of declarant:

DYING DECLARATION- declarant must die

RES GESTAE- no need for declarant to die

Declarant:

DYING DECLARATION- must be the victim

RES GESTAE- anybody

Take note that a statement may both qualify as a dying declaration and as [art of the res
gestae. This is under the concept of multiple admissibility of evidence.

PEOPLE vs. CLOUD (265 SCRA 472)

Concept of independently relevant statements and res gestae applied simultaneously.

[N.B. dying declaration may likewise be applied simultaneously with independently relevant
statement]

Josephine Aguilar was at the emergency room of a hospital to have some stitches
removed from her daughter’s head when she saw a boy being carried by a man, followed by an
old woman who was shouting hysterically. The boy’s face was swollen and bruised and his body
covered with dry blood. The old woman, apparently the boy’s grandmother, cried and repeatedly
screamed. “Pinatay siya ng sariling ama!”. The old woman told the people inside the emergency
room that the boy’s father had beaten him up, tied his hands, and stabbed him.

Ruling of SC: Insofar as the statements of Rufina Alconyes(old woman) are concerned,
they are admissible as part of the res gestae, they having been caused by and did result from the
startling, if not gruesome, occurrence that she witnessed; and these were shortly thereafter
uttered by her with spontaneity, without prior opportunity to contrive the same.

The report made thereof by Josephine Aguilar is not hearsay since she was actually
there and personally heard the statements of Alconyes which she recounted in court. Her account
of said statements of Alconyes are admissible under the doctrine of independently relevant
statements, with respect to the tenor and not the truth thereof, since independent of the truth or
falsity of the same they are relevant to the issue on the cause of the death of the victim.

CELESTINO MARTURILLAS VS. PEOPLE OF THE PHILIPPINES

G.R. No. 163217, April 18, 2006

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The fact that the victim’s statement constituted a dying declaration does not
preclude it from being admitted as part of the res gestae, if the elements of both are present.
Section 42 of Rule 130 of the Rules of Court provides:
"Part of the res gestae. -- Statements made by a person while a startling occurrence is
taking place or immediately prior or subsequent thereto with respect to the circumstances
thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying
an equivocal act material to the issue, and giving it a legal significance, may be received as part
of the res gestae."

Res gestae refers to statements made by the participants or the victims of, or the
spectators to, a crime immediately before, during, or after its commission. These statements are
a spontaneous reaction or utterance inspired by the excitement of the occasion, without any
opportunity for the declarant to fabricate a false statement. An important consideration is whether
there intervened, between the occurrence and the statement, any circumstance calculated to
divert the mind and thus restore the mental balance of the declarant; and afford an opportunity for
deliberation.51

A declaration is deemed part of the res gestae and admissible in evidence as an

exception to the hearsay rule, when the following requisites concur: 1) the principal act, the res
gestae, is a startling occurrence; 2) the statements were made before the declarant had time to
contrive or devise; and 3) the statements concerned the occurrence in question and its
immediately attending circumstances.

All these requisites are present in this case. The principal act, the shooting, was a
startling occurrence. Immediately after, while he was still under the exciting influence of the
startling occurrence, the victim made the declaration without any prior opportunity to contrive a
story implicating petitioner. Also, the declaration concerned the one who shot the victim. Thus,
the latter’s statement was correctly appreciated as part of the res gestae.

Aside from the victim’s statement, which is part of the res gestae, that of Ernita --
"Kapitan, ngano nimo gipatay ang akong bana?" ("Captain, why did you shoot my husband?") --
may be considered to be in the same category. Her statement was about the same startling
occurrence; it was uttered spontaneously, right after the shooting, while she had no opportunity to
concoct a story against petitioner; and it related to the circumstances of the shooting.

THE ELEMENT OF SPONTANEITY

It goes without saying that the element of spontaneity is critical. The following factors are
then considered in determining whether statements offered in evidence as part of the res gestae
have been made spontaneously, viz., (1) the time that lapsed between the occurrence of the act
or transaction and the making of the statement; (2) the place where the statement was made; (3)
the condition of the declarant when he made the statement; (4) the presence or absence of
intervening events between the occurrence and the statement relative thereto; and (5) the nature
and circumstances of the statement itself.

Spontaneity of the declarant is a key to admissibilty. An excited utterance does not have
to be made at time of the startling event, but must be made while the declarant is still in a state of
surprise or shock from the incident. The declarant's reflective powers must be stilled, meaning
that, while making the statement, the declarant would not have had a chance to reflect upon the
startling event, fabricate a purposefully false statement, and then say it. If the declarant is
believed to have had time to reflect on the situation before making the statement, the statement
would not be spontaneous and thus not an excited utterance. However, under certain
circumstances, it is possible for days to have passed before the declarant fully reflects on the
event, and "unstills" his or her reflective powers.

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Spontaneity is established by the declarant's demeanor, time lapse, and

content of the statement. Declarant's appearance of calmness at time statement lessens
admissibility. Time lapse between the startling event and the statement is a factor for both
admissibility and weight. A statement made long after the event may be deemed less
spontaneous than one made contemporaneously or shortly after. Outer limit of the permissible
time lapse can only be determined from the circumstances of a particular case.

For example, if a declarant made a statement six days after a car crash due to the extent
of his injuries, admissibility of the statement is diminished because of the significant passage of
time. However, if evidence shows that he was continuously distraught and did not yet have a
chance to reflect upon the crash, the statement could be admissible but may have less weight
than if the statement had been made one hour after the crash. A complete and detailed statement
may infer the lack of spontaneity, as a narrative of a past completed event would require the
declarant's reflection and organization.

DBP POOL OF ACCREDITED INSURANCE COMPANIES vs. RADIO MINDANAO NETWORK

G.R. No. 147039, January 27, 2006

Res gestae, as an exception to the hearsay rule, refers to those exclamations and
statements made by either the participants, victims, or spectators to a crime immediately before,
during, or after the commission of the crime, when the circumstances are such that the
statements were made as a spontaneous reaction or utterance inspired by the excitement of the
occasion and there was no opportunity for the declarant to deliberate and to fabricate a false
statement.

The rule in res gestae applies when the declarant himself did not testify and provided that
the testimony of the witness who heard the declarant complies with the following requisites: (1)
that the principal act, the res gestae, be a startling occurrence; (2) the statements were made
before the declarant had the time to contrive or devise a falsehood; and (3) that the statements
must concern the occurrence in question and its immediate attending circumstances.

The Court is not convinced to accept the declarations as part of res gestae. While it may
concede that these statements were made by the bystanders during a startling occurrence, it
cannot be said however, that these utterances were made spontaneously by the bystanders and
before they had the time to contrive or devise a falsehood. Both SFO III Rochar and Lt. Col.
Torres received the bystanders’ statements while they were making their investigations during
and after the fire.

It is reasonable to assume that when these statements were noted down, the bystanders
already had enough time and opportunity to mill around, talk to one another and exchange
information, not to mention theories and speculations, as is the usual experience in disquieting
situations where hysteria is likely to take place. It cannot therefore be ascertained whether these
utterances were the products of truth. That the utterances may be mere idle talk is not remote.

At best, the testimonies of SFO III Rochar and Lt. Col. Torres that these statements were
made may be considered as independently relevant statements gathered in the course of their
investigation, and are admissible not as to the veracity thereof but to the fact that they had been
thus uttered.

PEOPLE OF THE PHILIPPINES vs. ALFREDO PASCUAL

G. R. No. 172326, January 19, 2009

Furthermore, the statements of accused-appellant’s wife, Divina, immediately after the

fateful incident all the more convince the Court as to accused-appellant’s guilt. Part of the res

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gestae and admissible in evidence as an exception to the hearsay rule were Divina’s
utterances to Gorospe after seeing the dead and raped body of the victim, i.e., “May nagyari sa
itaas at galing doon si Boyet,” and her subsequent narration of seeing the accused-appellant
going out of the victim’s room and running away therefrom.

In People v Cantonjos, the Court held that:

Res gestae utterances refer to those exclamations and statements made by either the
participants, victims, or spectators to a crime immediately before, during, or after the commission
of the crime, when the circumstances are such that the statements were made as a spontaneous
reaction or utterance inspired by the excitement of the occasion and there was no opportunity for
the declarant to deliberate and to fabricate a false statement. A declaration is deemed part of the
res gestae and thus admissible in evidence as an exception to the hearsay rule when the
following requisites concur: (1) the principal act, the res gestae, is a startling occurrence; (2) the
statements were made before the declarant had time to contrive or devise; and (3) the
statements must concern the occurrence in question and its immediately attending
circumstances.

The aforementioned requisites are present in this case. The res gestae or the startling
event is the rape and death of the victim. The statements of Divina to Gorospe were made
spontaneously and before she had the time to contrive or devise such declarations, and said
statements all concerned the occurrence in question or the immediately attending circumstances
thereof.

RES GESTAE IN A CIVIL CASE FOR REPLEVIN

GOLDEN (ILOILO) DELTA SALES CORP vs. PRE-STRESS INT’L CORPORATION

G.R. No. 176768, January 12, 2009

FACTS: Golden Delta is engaged in selling hardware and construction materials. Cembrano is its
Vice-President and General Manager. Pre-Stress International Corporation (PSI) is engaged in
the fabrication of pre-stress concrete pipes and pre-case concrete, while respondents Jerry
Jardiolin and Zeñon Setias are officers of PSI. Sometime in 1990, Cembrano was introduced by
Jardiolin to the PSI Board of Directors, among whom was Setias. Since then, Golden Delta
supplied PSI with its construction materials on credit and at times helped finance the latter’s
construction projects through Golden Delta’s sister financing company.

Sometime in March 2000, for convenience of both parties, the officers of PSI allegedly offered
Golden Delta to store its construction materials at the PSI compound in Pavia, Iloilo. At that time,
Golden Delta’s warehouse in Dungon A, Jaro, Iloilo City, was being rented by Wewins Bakeshop.
Consequently, Golden Delta accepted the proposal and began utilizing a portion of the PSI
compound as its warehouse and bodega, stacking and storing its construction materials there.

Golden Delta alleged that its stocks coming from Luzon and Cebu were delivered directly to the
PSI compound and stored there. Golden Delta also placed there trucks, forklifts and other
equipment necessary for loading and unloading the materials. It likewise assigned there its own
personnel to manage and attend to the receipts and withdrawal of materials by its buyers.
Golden Delta claimed that the procedure in the withdrawal of materials by its customers in the
PSI compound was to first purchase the materials from its main office in Iloilo City; the customer
would then be issued a withdrawal slip describing the materials and their quantities; the
withdrawal slip would then be presented to Golden Delta’s personnel stationed at the PSI
compound and the latter would record it and release the materials to the customer. Golden Delta
claimed that the arrangement went smoothly from March 2000 to December 2001.

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Before December 5, 2001, the lessee of Golden Delta’s warehouse in Dungon A, Jaro,
Iloilo City, terminated its lease agreement with Golden Delta. Hence, Golden Delta decided to
resume its operations at its own warehouse. Thereafter, Golden Delta started to retrieve and
transfer its alleged stocks from the PSI compound to its own warehouse in Dungon A. Golden
Delta’s employees were able to load three out of four trucks with assorted construction materials,
but were only able to bring out two loaded trucks from the PSI compound to its warehouse in
Dungon A. When Golden Delta’s people returned to retrieve the remaining materials, they were
prevented from doing so by the guards of PSI, allegedly upon the instructions of Jardiolin.
Despite numerous telephone calls by Golden Delta to the officers and personnel of PSI, the latter
allegedly refused to allow Golden Delta to withdraw its remaining stocks.

On December 7, 2001, PSI purportedly called Golden Delta’s office to inform the latter that it may
retrieve the two trucks that were left at the PSI compound. Golden Delta, however, found two
empty trucks along the highway outside the PSI compound. It appears that one of the trucks
which were loaded with materials earlier was emptied of its cargo. At that time, according to
Golden Delta, the drivers who retrieved the trucks saw Golden Delta’s materials still inside the
PSI compound. On December 8, 2001, Golden Delta sent a Letter addressed to Setias, the
General Manager of PSI, demanding the release of the construction materials. PSI allegedly
refused to release or allow Golden Delta to enter the compound and withdraw the materials.

Consequently, Golden Delta filed on January 8, 2002 a Complaint for Recovery of Personal
Property with Prayer for Replevin with Damages before the Regional Trial Court (RTC), Iloilo City,
against PSI, Jardiolin and Setias, later docketed as Civil Case No. 02-27020. In its complaint,
Golden Delta averred that respondents’ refusal to allow it to withdraw the construction materials
inside the PSI compound, in effect, constitutes unlawful taking of possession of personal
properties. Golden Delta prayed that the trial court issue a writ of replevin ordering the seizure
and delivery of the subject personal properties in accordance with law

RULING: The CA’s findings that these inventory lists that were testified to by petitioner’s
witnesses were not signed or acknowledged by any of respondents’ personnel do not militate
against their evidentiary value. As correctly pointed out by petitioner, the withdrawal slips and
inventory lists do not bear the signature of any PSI officer/personnel because, as admitted by PSI
and Setias in their Answer, they do not interfere with the affairs and activities of Golden Delta and
Jardiolin as their operations do not interfere with their company’s operation and that although
Golden Delta delivers construction materials to Jardiolin, the transaction is purely between the
two of them and that they have no participation in their transactions whatsoever.

Nor can it be contended that the inventory lists are self-serving simply because they were
prepared by petitioner’s employees. These documents were prepared ante litem motam, and
without anticipation that any litigation between the parties may ensue in the future.

In Philippine Airlines, Inc. v. Ramos, this Court held that a writing or document made
contemporaneously with a transaction which evidenced facts pertinent to the issue, when
adduced as proof of those facts, is ordinarily regarded as more reliable proof and of greater
probative force than the oral testimony of a witness as to such facts based upon memory and
recollection. Statements, acts or conducts accompanying or so nearly connected with the main
transaction as to form part of it, and which illustrate, elucidate, qualify or characterize the act, are
admissible as part of the res gestae.

In the present case, the withdrawal slips and inventory lists were prepared by the petitioner’s
employees who were detailed at the PSI compound, in the regularcourse of its business, made
contemporaneously with the transaction, and in the performance of their regular duties without
anticipation of any future litigation which may arise between petitioner and PSI. They should
have been afforded great weight and credence as evidence

THE RES GESTAE STATEMENT MAY COME

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FROM THE ACCUSED HIMSELF

PEOPLE OF THE PHILIPPINES vs. TIRSO SACE

G.R. No. 178063, April 5, 2010

Also, the facts in this case clearly show that appellant admitted the commission of the
crime to the prosecution’s witnesses. According to their testimonies, appellant admitted having
raped and killed AAA. Their testimonies were not rebutted by the defense. Appellant’s statements
infront of the prosecution witnesses are admissible for being part of the res gestae. Under the
Revised Rules on Evidence, a declaration is deemed part of the res gestae and admissible in
evidence as an exception to the hearsay rule when the following requisites concur: (1) the
principal act, the res gestae, is a startling occurrence; (2) the statements were made before the
declarant had time to contrive or devise; and (3) the statements must concern the occurrence in
question and its immediately attending circumstances. All these requisites are present in this
case. Appellant had just been through a startling and gruesome occurrence, AAA’s death. His
admission was made while he was still under the influence of said startling occurrence and
before he had an opportunity to concoct or contrive a story. In addition, he was still under the
influence of alcohol at that time, having engaged in a drinking spree from 1:00 p.m. to 7:00 p.m.
that day. His confession concerned the rape and killing of AAA. Appellant’s spontaneous
statements made to private persons, not agents of the State or law enforcers, are not covered by
the constitutional safeguards on custodial investigation and, as res gestae, admissible in
evidence against him.

CASE:
PEOPLE OF THE PHILIPPINES vs. ESOY
G.R. No. 185849, April 7, 2010

Res gestae refers to those exclamations and statements made by either the participants,
the victim or spectator to a crime immediately before, during or immediately after the commission
of the crime, when the circumstances are such that the statements were made as a spontaneous
reaction or utterance inspired by excitement of the occasion and there was no opportunity for the
declarant to deliberate and to fabricate a false statement. In the instant case, all the elements of
res gestae are sufficiently established insofar as the aforequoted spontaneous utterance is
concerned: (1) the principal act (res gestae) – the robbery and stabbing of the victim – is a
startling occurrence; (2) the statements were made before the declarant had time to contrive or
devise, that is, within minutes after the victim was stabbed and his cellular phone was snatched;
and (3) the statement concerns the occurrence in question and its immediately attending
circumstances – his cellular phone was stolen during the startling occurrence. The testimony
being an exception to the hearsay rule, the trial court did not err in admitting the same.

Section 43. Entries in the course of business. - Entries made at, or near the time of
transactions to which they refer, by a person deceased, or unable to testify, who was in a
position to know the facts therein stated, may be received as prima facie evidence, if such
person made the entries in his professional capacity or in the performance of duty and in
the ordinary or regular course of business or duty. (37a)

COMMENT

In American jurisprudence, this is also known as the “BUSINESS RECORDS

EXCEPTION”.

REQUISITES
SECURITY BANK & TRUST CO. VS. ERIC GAN
G.R. No. 150464, June 27, 2006

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Neither can we accept petitioner’s argument that the entries made by

Mercado in the ledger were competent evidence to prove how and when the negative balance
was incurred. Petitioner invokes Section 43 of Rule 130. XXX

Under this exception to the hearsay rule, the admission in evidence of entries in
corporate books required the satisfaction of the following conditions:

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 transactions 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; and
5. the entries were made in the ordinary or regular course of business or duty.

The ledger entries did not meet the first and third requisites.

Mercado, petitioner’s bookkeeper who prepared the entries, was presented to testify on
the transactions pertaining to the account of respondent. It was in the course of his testimony that
the ledger entries were presented. There was, therefore, neither justification nor necessity for the
presentation of the entries as the person who made them was available to testify in court.
Moreover, Mercado had no personal knowledge of the facts constituting the entries, particularly
those entries which resulted in the negative balance. He had no knowledge of the truth or falsity
of these entries.

MEANS OF PROVING FILIATION

CROSS-REFERENCE TO PEDIGREE

REPUBLIC OF THE PHILIPPINES vs. MANGOTARA

G.R. No. 170375, July 7, 2010

Under Art. 172 of the Family Code, the filiation of legitimate children shall be proved by
any other means allowed by the Rules of Court and special laws, in the absence of a record of
birth or a parent’s admission of such legitimate filiation in a public or private document duly
signed by the parent. Such other proof of one’s filiation may be a baptismal certificate, a judicial
admission, a family Bible in which his name has been entered, common reputation respecting his
pedigree, admission by silence, the testimonies of witnesses and other kinds of proof admissible
under Rule 130 of the Rules of Court. By analogy, this method of proving filiation may also be
utilized in the instant case.
xxxx
The admissibility of baptismal certificates offered by Lydia S. Reyes, absent the
testimony of the officiating priest or the official recorder, was settled in People v. Ritter, citing U.S.
v. de Vera (28 Phil. 105 [1914]), thus –
x x x the entries made in the Registry Book may be considered as entries made
in the course of the business under Section 43 of Rule 130, which is an exception to the
hearsay rule. The baptisms administered by the church are one of its transactions in the
exercise of ecclesiastical duties and recorded in the book of the church during the course
of its business.

It may be argued that baptismal certificates are evidence only of the administration of the
sacrament, but in this case, there were four (4) baptismal certificates which, when taken together,
uniformly show that Lourdes, Josefina, Remedios and Luis had the same set of parents, as
indicated therein. Corroborated by the undisputed testimony of Adelaida Sampayo that with the
demise of Lourdes and her brothers Manuel, Luis and sister Remedios, the only sibling left was
Josefina Sampayo Reyes, such baptismal certificates have acquired evidentiary weight to prove
filiation.

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Section 44. Entries in official records. - Entries in official records made in the performance
of his duty by a public officer of the Philippines, or by a person in the performance of a
duty specially enjoined by law, are prima facie evidence of the facts therein stated. (38)

PEOPLE OF THE PHILIPPINES vs. FILOMENO MAYINGQUE

G.R. No. 179709, July 6, 2010

The testimony of Dr. Salen as regards the Anatomical Sketch, and Medico Legal Report,
among other things, prepared by Dr. Aranas falls under the exception to the hearsay rule
because the said sketch and report are entries in official records made by Dr. Aranas in the
performance of his duty as a Medico Legal Officer of the WPD Crime Laboratory. Dr. Aranas had
personal knowledge of the facts stated by him the said sketch and report relative to the nature
and number of wounds sustained by Tusi because he was the one who performed the autopsy on
the cadaver of Tusi. Dr. Salen acquired such facts from the sketch and report made by his
predecessor, Dr. Aranas, who had a legal duty to turn over the same to him as his successor.
Such entries were duly entered in a regular manner in the official records, hence, the entries in
said sketch and report are prima facie evidence of the facts therein stated and are admissible
under Section 44, Rule 130 of the Rules of Court.

Section 45. Commercial lists and the like. - Evidence of statements of matters of interest to
persons engaged in an occupation contained in a list, register, periodical, or other
published compilation is admissible as tending to prove the truth of any relevant matter so
stated if that compilation is published for use by persons engaged in that occupation and
is generally used and relied upon by them therein. (39)

REQUISITES

PNOC SHIPPING AND TRANSPORT CORPORATION vs. COURT OF APPEALS

G.R. No. 107518, October 8, 1998

It is true that one of the exceptions to the hearsay rule pertains to "commercial lists and
the like" under Section 45, Rule 130 of the Revised Rules on Evidence. In this respect, the Court
of Appeals considered private respondent's exhibits as "commercial lists." It added, however, that
these exhibits should be admitted in evidence "until such time as the Supreme Court categorically
rules on the admissibility or inadmissibility of this class of evidence" because "the reception of
these documentary exhibits (price quotations) as evidence rests on the sound discretion of the
trial court." Reference to Section 45, Rule 130, however, would show that the conclusion of the
Court of Appeals on the matter was arbitrarily arrived at. This rule states:

Commercial lists and the like. — Evidence of statements of matters of interest to

persons engaged in an occupation contained in a list, register, periodical, or other
published compilation is admissible as tending to prove the truth of any relevant matter
so stated if that compilation is published for use by persons engaged in that occupation
and is generally used and relied upon by them there.

Under Section 45 of the aforesaid Rule, a document is a commercial list if: (1) it is a
statement of matters of interest to persons engaged in an occupation; (2) such statement is
contained in a list, register, periodical or other published compilation; (3) said compilation is
published for the use of persons engaged in that occupation, and (4) it is generally used and
relied upon by persons in the same occupation.

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Based on the above requisites, it is our considered view that Exhibits B, C, D,

E, F and H are not "commercial lists" for these do not belong to the category of "other published
compilations" under Section 45 aforequoted. Under the principle of ejusdem generis, "(w)here
general words follow an enumeration of persons or things, by words of a particular and specific
meaning, such general words are not to be construed in their widest extent, but are to be held as
applying only to persons or things of the same kind or class as those specifically mentioned."

The exhibits mentioned are mere price quotations issued personally to Del Rosario who
requested for them from dealers of equipment similar to the ones lost at the collision of the two
vessels. These are not published in any list, register, periodical or other compilation on the
relevant subject matter. Neither are these "market reports or quotations" within the purview of
"commercial lists" as these are not "standard handbooks or periodicals, containing data of
everyday professional need and relied upon in the work of the occupation." These are simply
letters responding to the queries of Del Rosario.

MERALCO vs. SECRETARY OF LABOR

G.R. No. 127598, February 22, 2000

Petitioner warns that if the wage increase of P2,200.00 per month as ordered by the
Secretary is allowed, it would simply pass the cost covering such increase to the consumers
through an increase in the rate of electricity. This is a non sequitur. The Court cannot be
threatened with such a misleading argument. An increase in the prices of electric current needs
the approval of the appropriate regulatory government agency and does not automatically result
from a mere increase in the wages of petitioner's employees. Besides, this argument
presupposes that petitioner is capable of meeting a wage increase. The All Asia Capital report
upon which the Union relies to support its position regarding the wage issue cannot be an
accurate basis and conclusive determinant of the rate of wage increase. Section 45 of Rule 130
Rules of Evidence provides:

Commercial lists and the like. — Evidence of statements of matters of interest to

persons engaged in an occupation contained in a list, register, periodical, or other
published compilation is admissible as tending to prove the truth of any relevant matter
so stated if that compilation is published for use by persons engaged in that occupation
and is generally used and relied upon by them therein.

Under the afore-quoted rule, statement of matters contained in a periodical, may be

admitted only "if that compilation is published for use by persons engaged in that occupation and
is generally used and relied upon by them therein." As correctly held in our Decision dated
January 27, 1999, the cited report is a mere newspaper account and not even a commercial list.
At most, it is but an analysis or opinion which carries no persuasive weight for purposes of this
case as no sufficient figures to support it were presented.

Neither did anybody testify to its accuracy. It cannot be said that businessmen generally
rely on news items such as this in their occupation. Besides, no evidence was presented that the
publication was regularly prepared by a person in touch with the market and that it is generally
regarded as trustworthy and reliable. Absent extrinsic proof of their accuracy, these reports are
not admissible.6 In the same manner, newspapers containing stock quotations are not admissible
in evidence when the source of the reports is available.7 With more reason, mere analyses or
projections of such reports cannot be admitted. In particular, the source of the report in this case
can be easily made available considering that the same is necessary for compliance with certain
governmental requirements.

Section 46. Learned treatises. - A published treatise, periodical or pamphlet on a subject of

history, law, science, or art is admissible as tending to prove the truth of a matter stated

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therein if the court takes judicial notice, or a witness expert in the subject
testifies, that the writer of the statement in the treatise, periodical or pamphlet is
recognized in his profession or calling as expert in the subject. (40a)

Section 47. Testimony or deposition at a former proceeding. - The testimony or deposition

of a witness deceased or unable to testify, given in a former case or proceeding, judicial or
administrative, involving the same parties and subject matter, may be given in evidence
against the adverse party who had the opportunity to cross-examine him. (41a)

AUGUSTO R. SAMALIO vs. COURT OF APPEALS

G. R. No. 140079, March 31, 2005 (EN BANC)

For Section 47, Rule 130 to apply, the following requisites must be satisfied: (a) the
witness is dead or unable to testify; (b) 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; (c) the former case involved the same subject as that in the present case, although on
different causes of action; (d) the issue testified to by the witness in the former trial is the same
issue involved in the present case and (e) the adverse party had an opportunity to cross-examine
the witness in the former case.

SECTION 47 AND THE RIGHT TO CONFRONT WITNESSES

DOROTEO TOLEDO, JR. vs. PEOPLE OF THE PHILIPPINES

G.R. No. L-36603, September 30, 1978

The provision invoked by the private respondent reads:

Section 1. Rights of the defendant at the Trial.-In all criminal prosecutions the
defendant shall be entitled:
(f) To be confronted at the trial by, and to cross-examine the witness against him,
where the testimony of a witness for the prosecution has previously been taken down by
question and answer in the presence of the defendant or his attorney, the defense having
had an opportunity to cross-examine the witness, the testimony or deposition of the latter
may be read, upon satisfactory proof to the court that lie is dead or incapacitated to
testify, or can not with due diligence be found in the Philippines. (Subsec. (f), sec. 1, Rule
115, Rules of Court.)

The controlling statute is Section 37, Rule 123 of the 1940 Rules of Court, now Section
41, Rule 130, viz.
SEC. 41. Testimony at a former trial. - The testimony of a witness deceased or
out of the Philippines, or unable to testify, given in a former case between the same
parties, relating to the same matter, the adverse party having had an opportunity to
cross- examine him, may be given in evidence.

Concededly, the witnesses at the former trial were subpoenaed by the Juvenile &
Domestic Relations Court a number of times. These witnesses did not appear to testify.

But are their testimonies in the former trial within the coverage of the rule of admissibility
set forth in Section 41, Rule 130? These witnesses are not dead. They are not outside of the
Philippines. Can they be categorized as witnesses of the class unable to testify? The Court of
Appeals, construing this term, held that subsequent failure or refusal to appear thereat [second
trial] or hostility since testifying at the first trial does not amount to inability to testify, but such
inability proceeding from a grave cause, almost amounting to death, as when the witness is old
and has lost the power of speech. (Griffith vs. Sauls, 77 Tex 630, 14 S.W. 230, 231; section 37 of
Rule 123, Rules of Court).

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Here, the witnesses in question were available. Only, they refused to testify. No other
person that prevented them from testifying, is cited. Certainly, they do not come within the legal
purview of those unable to testify.

In other words, under Section 47 of Rule 130, the preconditions for the admission of
testimony given by a witness out of court must be strictly complied with. Indeed, liberality in such
respect is pregnant with undesirable possibilities affecting the veracity of the evidence involved.
And there is more reason to adopt such a strict rule in case of the above-quoted Section 1 (f) of
Rule 115, for apart from being a rule of evidence with additional specific requisites to those
prescribed by Section 47, more importantly, said provision is an implementing translation of the
constitutional right of an accused person "to meet the witnesses (against him) face to face. (Sec.
19, Bill of Rights, Article IV, Constitution of the Philippines of 1973)

Actually, its first sentence accentuates the mandate that the accused shall be entitled "to
be confronted at the trial by, and to cross-examine the witness against him." The second
sentence only enumerates the instances when such confrontation may be deemed substantially
complied with, should it be impossible to produce the witness at the trial, and applying the ruling
in Tan, supra, none of those instances has materialized in the case of petitioner herein.
SITUATION

Before we leave hearsay, here is a situation: A was called to testify regarding a newspaper
report that he read. Is it admissible or not?

GENERAL RULE: it is NOT admissible because it is a double dead hearsay. Hearsay

twice removed from its source.
EXCEPTION: when the fact of publication itself is the very fact in issue in the case.

For example, in the case of Libel. Gidautan ka sa newspaper, of course, that will be your
main evidence and therefore, when you testify as what you read in the newspaper, then
that is the very fact in issue itself and it is not considered as hearsay.

7. OPINION RULE
SEC. 48. General rule. – The opinion of a witness is not admissible, except as indicated in the
following sections.

The provisions here are quite clear as to what these exceptions are.

GENERAL RULE: The witness can only testify as to matters that are based on his personal
knowledge or those derived from own perception of facts and events. He is not allowed to
say anything anymore than that, as a general rule. So If a witness is asked, “What do you
think happened?” that is actually a question falling from opinion and therefore, that cannot be
allowed under section 48.

Witnesses are not generally allowed to testify based on their opinions and conclusions but must
take facts within their knowledge as it is the province of the courts, In fact, it is the “exclusive”
province of the court to make deductions from purported facts based in evidence or to decide
matters directly in issue. Generally speaking, the law of evidence in both civil and criminal cases
confines the testimony of witnesses to statements of concrete facts within their own observation,
knowledge, and recollection. Testimony must normally state facts perceived by the witnesses'
use of their own senses, as distinguished from their opinions, inferences, impressions, and
conclusions drawn from the facts. Opinion testimony that is based on facts is usually considered
incompetent and inadmissible, if the fact finders are as well qualified as the witness to draw
conclusions from the facts.

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As a general rule, a witness CANNOT state an opinion anymore even if he is asked. Whatever
answer he says is simply speculative and based on opinion and therefore, is not factual in nature.
And being non-factual in nature, it cannot be admit any admissibility. In any court of law, it is only
proper for the court that has that prerogative exclusively to render an opinion.

But of course, we have exceptions. First exception is under section 49.

EXCEPTIONS:

SEC. 49. Opinion of expert witness. – The opinion of a witness on a matter requiring
special knowledge, skill, experience or training which he is shown to possess, may be
received in evidence.

EXPERT WITNESS

He is one who belongs to a profession or calling to which the subject matter of the inquiry
partakes and who possesses the special knowledge on questions on which he proposes
to express an opinion.

So there is a matter that the court does not have competence to deal with, like matters on
science or medicine. In ordinary crimes such as homicide and murder where the cause of
death is according to legal report is poisoning. Remember that in criminal cases, you
need to relate or directly connect the act of the accused to the effect of his acts. A person
died because of the act of the accused, i.e. poisoning. But what if there are other causes
of death? It can either at least mitigate the penalty or change the nature of the offense.
Remember there are 2 agents that can cause the death, it can change the nature of the
offense. Here, the court cannot just speculate. “I think it was the poisoning and not the
shooting is the cause of death”. The court cannot just say that!

The use of expert witnesses is something that is really common. In a lot cases, it requires
expert witnesses. For example:

1. Expert Testimony required to determine the cause of death of the victim –

that is by means of a medico-legal examiner who is a physician. He is an expert
in the field of forensics.
2. Declaration of nullity of marriage (article 36 of Family code) – we need the
opinion of a clinical psychiatrist or clinical psychologist

Expert witnesses are persons who possess the special knowledge, skill, experience,
training regarding the fact in issue of the case. He is a witness who by virtue of
education, training, skill or experience is believed to have knowledge on a particular
subject beyond that of the average person sufficient that others may officially and legally
rely upon the witnesses’ testimony, fact and opinion on any evidence regarding the fact in
issue within the scope of their expertise. This is referred to as ‘expert opinion’ as an
assistance to a fact finder. Expert witnesses may deliver expert evidence among facts
within the domain of their expertise.

Let’s try to confuse ourselves a little bit.

EXPERT WITNESS and LEARNED TREATISE

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What will prevail, the testimony of expert witness or a learned treatise?

Remember diba, a learned treatise is admissible even if you do not present the author of
the learned treatise. If there is a conflict between a learned treatise and opinion of expert
witness, what is given greater weight?

Answer: There is no hard and fast answer there. The possible deviation from a learned
treatise or let’s say acceptable medical standards may be brought on by the peculiar
circumstances of the case. murag balaod ba. Naay balaod na dili applicable sa tanan
cases or situations. Therefore, we look at general principles. BUT if the expert opinion is
TOTALLY CONTRARY to the learned treatise, my submission is a witness who does so,
will do so by at the same time, knowing the treatise. These are the general principles,
learned treatise,etc. you might as well make your own treatise.

FACTUAL WITNESS and EXPERT WITNESS

If an expert witness testifies as to those specialized matters, what do you call such
witness who simply testifies as to matters of fact? We call that a FACTUAL
WITNESS as distinguished from an expert. A factual witness is one who knows about
specific incidents or crime that was committed, who knows a particular aspect of how
things work in a particular incident. For example, in a car accident, the factual incident is
the one who says the car bumped the pedestrian. The expert witness is one who can tell
you how fast the car was going, the damage incurred by one vehicle to the other, etc. an
ordinary factual witness will not be able to tell you that. He will only tell you as to what he
saw or heard.

What if ang question sa factual witness kay, “at what speed was the car travelling
at that time”? Will he be competent to answer? Of course NO. he was not the driver.
He did not see. Unless he was holding a speedometer, then he would not know.

What if he says, “Around 55km/hr”? It is already stating an opinion and no longer a

matter of fact. So a factual witness is incompetent to testify on such matters. That falls
within the expert witness’ expertise.

Can a factual witness offer opinion? NO. As a general rule, he can only state
observation of fact, the expert is given facts of the case and he offers an opinion based
on his training and experience. So a factual nature of an accident can testify as to what
he saw but not at whose fault was the accident but the expert witness can give an opinion
as to that.

USE OF COUNTER-EXPERT TESTIMONY

Situation: This is the object of expert testimony: That at the time of the incident, the
driver was drunk. Do you need an expert witness or not?
Answer: To my mind that is already something of common knowledge. Kung ang tao kay
after the incident, hubog jud kaayo, nagsuray2x ug lakaw, that is one that can come
wihtin the general knowledge of the person.

If your opponent proposes the production of an expert testimony regarding a fact

in issue, can you also present your own expert witness? YES.

Are both testimonies admissible? YES because expert testimonies from whatever
source are admissible. It will now depend as to which expert testimony is believed by the
court.

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Example: REYES V. SISTERS OF MERCY. It is a torts case on the doctrine of

‘res ipsa loquitor”. The other testifies na naay sala ang hospital. The other testifies na
walay sala. Kinsay gituhuan karon sa judge?

REYES V. SISTERS OF MERCY

[G.R. No. 130547. October 3, 2000]

There is a case when expert testimony may be dispensed with, and that is
under the doctrine of res ipsa loquitur. As held in Ramos v. Court of Appeals:

Although generally, expert medical testimony is relied upon in malpractice

suits to prove that a physician has done a negligent act or that he has
deviated from the standard medical procedure, when the doctrine of res ipsa
loquitor is availed by the plaintiff, the need for expert medical testimony is
dispensed with because the injury itself provides the proof of
negligence. The reason is that the general rule on the necessity of expert
testimony applies only to such matters clearly within the domain of medical
science, and not to matters that are within the common knowledge of
mankind which may be testified to by anyone familiar with the
facts.Ordinarily, only physicians and surgeons of skill and experience are
competent to testify as to whether a patient has been treated or operated
upon with a reasonable degree of skill and care. However, testimony as to
the statements and acts of physicians and surgeons, external appearances,
and manifest conditions which are observable by any one may be given by
non-expert witnesses. Hence, in cases where the res ipsa loquitur is
applicable, the court is permitted to find a physician negligent upon proper
proof of injury to the patient, without the aid of expert testimony, where the
court from its fund of common knowledge can determine the proper
standard of care. Where common knowledge and experience teach that a
resulting injury would not have occurred to the patient if due care had been
exercised, an inference of negligence may be drawn giving rise to an
application of the doctrine of res ipsa loquitur without medical evidence,
which is ordinarily required to show not only what occurred but how and why
it occurred. When the doctrine is appropriate, all that the patient must do is
prove a nexus between the particular act or omission complained of and the
injury sustained while under the custody and management of the defendant
without need to produce expert medical testimony to establish the standard
of care. Resort to res ipsa loquitor is allowed because there is no other way,
under usual and ordinary conditions, by which the patient can obtain redress
for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following
situations: leaving of a foreign object in the body of the patient after an
operation, injuries sustained on a healthy part of the body which was not
under, or in the area, of treatment, removal of the wrong part of the body
when another part was intended, knocking out a tooth while a patient’s jaw
was under anesthetic for the removal of his tonsils, and loss of an eye while
the patient was under the influence ofanesthetic, during or following an
operation for appendicitis, among others.[17]

Petitioners asserted in the Court of Appeals that the doctrine of res ipsa
loquitur applies to the present case because Jorge Reyes was merely
experiencing fever and chills for five days and was fully conscious, coherent, and
ambulant when he went to the hospital. Yet, he died after only ten hours from the
time of his admission.

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This contention was rejected by the appellate court.

Petitioners now contend that all requisites for the application of res ipsa
loquitur were present, namely: (1) the accident was of a kind which does not
ordinarily occur unless someone is negligent; (2) the instrumentality or agency
which caused the injury was under the exclusive control of the person in charge;
and (3) the injury suffered must not have been due to any voluntary action or
contribution of the person injured.[18]

The contention is without merit.

We agree with the ruling of the Court of Appeals. In the Ramos case, the
question was whether a surgeon, an anesthesiologist, and a hospital should be
made liable for the comatose condition of a patient scheduled for
cholecystectomy.[19] In that case, the patient was given anesthesia prior to her
operation. Noting that the patient was neurologically sound at the time of her
operation, the Court applied the doctrine of res ipsa loquitur as mental brain
damage does not normally occur in a gallblader operation in the absence of
negligence of the anesthesiologist. Taking judicial notice that anesthesia
procedures had become so common that even an ordinary person could tell if it
was administered properly, we allowed the testimony of a witness who was not
an expert. In this case, while it is true that the patient died just a few hours after
professional medical assistance was rendered, there is really nothing unusual or
extraordinary about his death. Prior to his admission, the patient already had
recurring fevers and chills for five days unrelieved by the analgesic, antipyretic,
and antibiotics given him by his wife. This shows that he had been suffering from
a serious illness and professional medical help came too late for him.

Respondents alleged failure to observe due care was not immediately

apparent to a layman so as to justify application of res ipsa loquitur.The question
required expert opinion on the alleged breach by respondents of the standard of
care required by the circumstances. Furthermore, on the issue of the correctness
of her diagnosis, no presumption of negligence can be applied to Dr. Marlyn
Rico. As held in Ramos:

. . . . Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used

but a rule to be cautiously applied, depending upon the circumstances of each
case.It is generally restricted to situations in malpractice cases where a layman
is able to say, as a matter of common knowledge and observation, that the
consequences of professional care were not as such as would ordinarily have
followed if due care had been exercised.

A distinction must be made between the failure to secure results, and the
occurrence of something more unusual and not ordinarily found if the service or
treatment rendered followed the usual procedure of those skilled in that particular
practice. It must be conceded that the doctrine of res ipsa loquitur can have no
application in a suit against a physician or a surgeon which involves the merits of
a diagnosis or of a scientific treatment. The physician or surgeon is not required
at his peril to explain why any particular diagnosis was not correct, or why any
particular scientific treatment did not produce the desired result

THE “GIBSON’S LAW”

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This rule is related to the US rule called “GIBSONS LAW”. In public relations,
[1]
and in the practice of law, Gibson's law holds that "For every PhD there is an equal
and opposite PhD."[2] The term specifically refers to the conflict between testimony
of expert witnesses called by opposing parties in a trial under an adversarial
system of justice.[3] It is also applied to conflicting scientific opinion injected
into policy decisions by interested parties creating a controversy to promote their
interests.

An expert testimony can be rebutted by contrary expert testimony.

Example: there has been a long line case of class suits against tobacco companies. They
say cigarettes are addictive or that it causes cancer. The tobacco companies will also
present their own experts to rebut that. in davao city, we also have that case with regard
to the pesticides used by banana companies. There was an allegation that communities
near that area get sick daw because of the pernicious effects of pesticides. Both parties
have presented their own experts. So that is a clear application of the Gibson’s law.

EFFECT OF OFFERING EXPERT TESTIMONY

PUNZALAN V. COMELEC
[G.R. No. 126669. April 27, 1998]

Expert opinions are not ordinarily conclusive in the sense that they must be accepted as
true on the subject of their testimony, but are generally regarded as purely advisory in
character; the courts may place whatever weight they choose upon such testimony and
may reject it, if they find that it is consistent with the facts in the case or otherwise
unreasonable

QUALIFYING OF WITNESS

SITUATION: now here comes the claim of the plaintiff who wants to present a scientist as
an expert witness so that he will be able to testify on matters on expert opnion. Automatic
ba na? Once he offers that person to give expert testimony, can that person testify agad
as an expert witness? It depends. If that party stipulates that that party is credible expert,
then he may proceed to testify and state his opinions.

But what if the other party objects? Will that testimony be allowed or not? It will still
be allowed but there is a qualifying process that will be followed by the court. For lack of
other term, it is called QUALIFYING OF A WITNESS. How? State his educational
background, expertise, etc. he must testify first as to his qualifications, training, education
and expertise.

If the other party is already satisfied that he is a qualified expert witness, then proceed na
xa sa iyang testimony. But ordinarily, even if he is not satisfied, the court will already now
allow the testimony to proceed as an expert testimony because even if he had doubts in
his mind, it can always be rebutted.

So the GENERAL RULE is that for as long as there is that basic qualifications of the
witness, the court will allow the testimony subject to the rebuttal by the other party.

DETERMINING AN EXPERT; FACTORS

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Is there any standard?

G.R. No. 123137 October 17, 2001

PEOPLE OF THE PHILIPPINES vs. PO2 ALBERT ABRIOL,

An expert witness is "one who belongs to the profession or calling to which the subject
matter of the inquiry relates and who possesses special knowledge on questions on
which he proposes to express an opinion."38

There is no definite standard of determining the degree of skill or knowledge that a

witness must possess in order to testify as an expert. It is sufficient that the following
factors be present:
(1) training and education;
(2) particular, first-hand familiarity with the facts of the case; and
(3) Presentation of authorities or standards upon which his opinion is based. 39 The
question of whether a witness is properly qualified to give an expert opinion on
ballistics rests with the discretion of the trial court.

An expert is one possessing in regard to a particular object or department of human

activity, knowledge not usually acquired by other persons (U.S. vs. Gil, 13 Phil. 530).

Scientific study and training are not always essential to the competency of a witness as
an expert. Knowledge acquired by moving (?) is no less valuable than that acquired by
study.

A witness may be competent to testify as an expert although his knowledge was acquired
through the medium of practical experience rather than scientific study and research.
Generally speaking, any person who by study or experience has acquired particular
knowledge or experience may be allowed to give in evidence his opinion upon matters of
technical knowledge relating to such business or employment (Dilag & Co. Inc. vs.
Merced, et al., (CA) 45 O.G. 5536). (Brief, pp. 9-11.)

In giving credence to Caser's expert testimony, the trial court explained:

The defense downgraded the capability of Caser in forensics ballistics and
identifying firearms. Much stress is given to the absence of photographs of his
examination. Nonetheless, the Court is satisfied (with) Caser's examination,
findings and conclusions with the use of a microscope. Caser's conclusion based
on his examination deserves credit. He found the impressions on the primer of
the fired cartridges that were test-fired to have the same characteristics with
those recovered at the scene of the crime. Whenever a triggerman pumps a
bullet (into) the body of his victim, he releases a chunk of concrete evidence that
binds him inseparably to his act. Every gun barrel deeply imprints on every bullet
its characteristic marking peculiar to that gun and that gun alone. These marking
might be microscopic but they are terribly vocal in announcing their origin. And
they are as infallible for purposes of identification, as the print left by the human
finger.41

We agree with the trial court that P/Inspector Caser qualifies as a ballistics expert. He is
a licensed criminologist, trained at the Ballistics Command and Laboratory Center in Fort
Bonifacio, in the PNP Crime Laboratory in Camp Crame, and in the National Bureau of
Investigation. He had previously testified as an expert witness in at least twenty-seven
(27) murder and homicide cases all over the country. 42 An expert witness need not
present comparative microphotographs of test bullets and cartridges to support his
findings.43 Examination under a comparison microscope showing that the test bullet and
the evidence bullet both came from the same gun is sufficient. 44 Moreover, the ballistician

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conclusively found similar characteristic markings in the evidence, test

cartridges and slugs.

ATTY. ESPEJO: To my mind, training OR education should be what SC had said

because there are those who have been experts in the field but do not have education.
By mere experience and rote of repetition, a person can become an expert.

Under the Federal rules of Procedure: A witness who is qualified as an expert by

knowledge, skill, experience, training, or education may testify in the form of an opinion or
otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data
(c) The testimony is the product of reliable principles and methods; ;--For example, DNA
testing. DNA is found in the scene of the crime and DNA taken from the accused.
what method will we take? The testimony must be a product of reliable principles and
methods. and
(d) The expert has reliably applied the principles and methods to the facts of the case.

In Philippine law, walay strict requisites. It will depend on the context of the testimony vis-
à-vis the facts of the case. that’s the case of Abriol. So mas broad ang atong standards
regarding expert witnesses.

NOW….If a witness testifies as to the result of a polygraph test, is that an admissible

test? The better question is that, “ARE THE RESULTS OF A POLYGRAPH TEST
ADMISSIBLE IN EVIDENCE?”

In most recent cases I have seen…

USE OF POLYGRAPH TEST

G.R. No. 116196 June 23, 1999

PEOPLE OF THE PHILIPPINES vs. PABLO ADOVISO,

On the premise that the trial court rendered the judgment of conviction on the basis of
"mere conjectures and speculations," 29 appellant argues that the negative result of the
polygraph test should be given weight to tilt the scales of justice in his favor.

A polygraph is an electromechanical instrument that simultaneously measures and

records certain physiological changes in the human body that are believed to be
involuntarily caused by an examinee's conscious attempt to deceive the
questioner. 30 The theory behind a polygraph or lie detector test is that a person who lie
deliberately will have rising blood pressure and a subconscious block in breathing, which
will be recorded on the graph. 31However, American courts almost uniformly reject the
results of polygraphs tests when offered in evidence for the purposes of establishing the
guilt or innocence of one accused of a crime, whether the accused or the prosecution
seeks its introduction, for the reason that polygraph has not as yet attained scientific
acceptance as a reliable and ascertaining truth or deception. 32 The rule is no
different in this jurisdiction. Thus, in People v. Daniel, 33 stating that much faith and
credit should not be vested upon a lie detector test as it is not conclusive. Appellant, in
this case, has not advanced any reason why this rule should not apply to him.

ATTY ESPEJO: this is especially true in our country where our polygraph tests are outdated. in
the United States, they have come or developed with a full-proof 99.9% accuracy of polygraph

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tests. This not only measures the usual stuff, but it also measures the perspiration,
temperature of the skin, body movement are filmed and analyzed, detection of unusual
movements in answering questions, etc. So I am not losing hope that someday the Philippines
can have the same scientific reliability in solving crimes. I like to know if I can pass a polygraph
test  am I good liar already?

Here’s an interesting case…

PUNZALAN V. COMEC
April 27, 1998

This was before the recent manner of using PCOS machine.

ISSUE: WON it is necessary to have a handwriting expert to determine cheating in the

ballots

HELD: Handwriting experts, while probably useful, are not indispensable in examining or
comparing handwriting; this can be done by the COMELEC itself. We have ruled that
evidence aliunde is not allowed to prove that a ballot is marked, an inspection of the
ballot itself being sufficient.

In the case at bar, the opinion of Atty. Pagui, who was claimed to be a handwriting expert,
was not binding upon the COMELEC especially so where the question involved the mere
similarity or dissimilarity of handwritings which could be determined by a comparison of
existing signatures or handwriting. 23 Section 22 of Rule 132 of the Revised Rules on
Evidence explicitly authorizes the court, by itself, to make a comparison of the disputed
handwriting "with writings admitted or treated as genuine by the party against whom the
evidence is offered, or proved to be genuine to the satisfaction of the judge."

Remember before that a voter is given multiple ballots or are given feed ballots (close na ang
precinct, then dungangan ang ballot boxes. So pag-ihap, daghan na kaayo. It happens, that is
made by the same person. Ingana ang daya sa election. So that is the issue that confronted the
SC. According to them, there is no need for handwriting experts).

CAN AN ORDINARY WITNESS RENDER

OPINION BASED ON A FACTUAL ISSUE? Yes, under section 50.

SEC. 50. Opinion of ordinary witnesses. – The opinion of a witness for which proper basis is
given, may be received in evidence regarding–
(a) the identity of a person about whom he has adequate knowledge;
(b) A handwriting with which he has sufficient familiarity; and
(c) The mental sanity of a person with whom he is sufficiently acquainted.
The witness may also testify on his impressions of the emotion, behavior, condition or
appearance of a person.

THE IDENTITY OF A PERSON ABOUT WHOM HE HAS ADEQUATE KNOWLEDGE;

IDENTIFICATION OF VOICE

EXAMPLE: You testified that the person who kidnapped the child is your neighbor,
Ramon. Why do yo do that? Because his voice is familiar, we grew up together. When I
heard his voice in the other line, I am sure that it is him!
Can you testify? YES according to Section 50.

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G.R. No. 141259 July 18, 2003

THE PEOPLE OF THE PHILIPPINES vs. LAMBERTINO PRIETO,

The evidence on record shows that the appellant was the nephew of the victim. He
frequented his uncle's house for drinking sprees, and on the said occasions, Dulcesima
saw and talked with the appellant. The appellant and the couple had been neighbors for
years before the stabbing. On July 2, 1995, Dulcesima talked with the appellant when
they were working in their respective farms. The widow of the victim gained familiarity
with the physical built, face and voice of the appellant.

Once a person has gained familiarity with another, identification becomes quite an easy
task even from a considerable distance.29 This Court has ruled that identification by the
sound of the voice of a person identified, is a sufficient and acceptable means of
identification where it is established that the witness and the accused had known
each other personally and closely for a number of years.

A HANDWRITING WITH WHICH HE HAS SUFFICIENT FAMILIARITY

Pwede gihapon! If you have been familiar with the handwriting of a peosrn because you
have been together for a long time. Pwede gihapon. You can readily identify.

A.M. No. CA-02-14-P July 31, 2002

LEONOR MARIANO, vs. SUSAN ROXAS, CLERK III, COURT OF APPEALS,

Based on the evidence on record, we hold that respondent is administratively liable.

As correctly found by the CA, respondent has still an unpaid balance of P12,110.00. The
receipts she presented to prove that she overpaid complainant P6,425.00 were forged.
As found by the CA, there are marked differences between the signatures in the receipts
and complainant’s specimen signature which are easily discernible by the naked eye.
That the receipts are not genuine was confirmed by Lorna Caraga. 12 She testified that
she is familiar with the signature of complainant who was her officemate for a period of 5
years in the Regional Trial Court (RTC), Branch 130, Caloocan City. In many occasions,
complainant signed documents in her presence. Her opinion as to complainant’s genuine
signature is admissible in evidence pursuant to Section 50, Rule 130 of the Revised
Rules on Evidence which provides:
"Sec. 50. Opinion of ordinary witnesses. – The opinion of a witness for which
proper basis is given, may be received in evidence regarding –
xxx
(b) A handwriting with which he has sufficient familiarity; and
x x x" (Emphasis ours)

Corollarily, Section 22, Rule 132 of the same Rules provides that:
"Sec. 22. How genuineness of handwriting proved. – The handwriting of a
person may be proved by any witness who believes it to be the handwriting of
such person because he has seen the person write, or has seen writing
purporting to be his upon which the witness has acted or been charged, andhas
thus acquired knowledge of the handwriting of such person. Evidence
respecting the handwriting may also be given by a comparison, made by the
witness or the court, with writings admitted or treated as genuine by the party
against whom the evidence is offered, or proved to be genuine to the satisfaction
of the judge." (Emphasis ours)

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Respondent’s act of forging those receipts to avoid her contractual obligation

affects not only her integrity as a public servant but more importantly, the integrity of the
Judiciary where she is connected. As a court employee, respondent should bear in mind
that the court is regarded by the public with respect. For this reason, the conduct of every
court personnel should be circumscribed with the heavy burden of responsibility and
must at all times be characterized by, among other things, uprightness, propriety and
decorum. Respondent failed to meet this exacting standard. Her actuation, although
arising from a private transaction, has tarnished the image of her public office.

G.R. No. 170583September 12, 2007

ERNESTO M. FULLERO vs.PEOPLE OF THE PHILIPPINES,
Well-entrenched is the rule that resort to handwriting experts is not mandatory.
Handwriting experts, while probably useful, are not indispensable in examining or
comparing handwritings or signatures.64 This is so since under Section 22, Rule 132 of
the Revised Rules on Evidence, the handwriting of a person may be proved by any
witness who believes it to be the handwriting of such person, because he has seen the
person write; or has seen writing purporting to be his upon which the witness has acted
or has been charged, and has thus acquired knowledge of the handwriting of such
person. Moreover, the opinion of a non-expert witness, for which proper basis is given,
may be received in evidence regarding the handwriting or signature of a person with
which he has sufficient familiarity.65

The Legazpi City RTC was, therefore, not obliged to put a handwriting expert on the
witness stand and direct the latter to examine petitioner’s signatures in the foregoing
exhibits before ruling on their admissibility. It can, as it did, rely on the testimonies of the
prosecution witnesses who are familiar with petitioner’s handwriting/signature in
determining the admissibility of the aforesaid exhibits. It can, by itself, also compare
petitioner’s signature in the PDS with the petitioner’s signatures in the subject exhibits
with or without the aid of an expert witness and thereafter rule on the admissibility of
such exhibits based on its own observation. In short, it can exercise independent
judgment as regards the admissibility of said exhibits.

THE MENTAL SANITY OF A PERSON WITH WHOM HE IS SUFFICIENTLY ACQUAINTED

A person, not an expert, who testifies as to the mental sanity of a person is actually
stating an opinion. However, in order to be admissible, the witness must be sufficiently
acquainted with the person and his mental sanity. To be considered as sufficiently
acquainted, the proponent must establish the degree of familiarity to the person whose
sanity is testified about. This is useful in Probate cases.

OTHERS
You may also testify as to the EMOTION, CONDITION, BEHAVIOR as well as in the
APPEARANCE. Emotion-- Was the plaintiff or private complainant, sad? Happy?
Hungry? Behavior—was he jittery? Condition—was he calm? Appearance—is he ugly? 

SUMMARY
GENERAL RULE: The opinion of a witness is NOT ADMISSIBLE.
EXCEPTIONS:
1. Expert witness on matters requiring special knowledge, skills, experience or training
which he possesses that is which he is an expert thereon
2. Regarding the identity or the handwriting of a person when he has knowledge of
the person or his handwriting whether he is an ordinary or expert witness. That is
from jurisprudence. If you are familiar to the handwriting of the person, then you can
testify even if you are not an expert witness. But if NO ONE is familiar to the
handwriting in consideration, then there has to be an expert witness! Both are stating
a matter of opinion but both testimonies are admissible

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3. Regarding the mental sanity of a person where the witness is

sufficiently acquainted to the person or if the person who testifies on the mental
sanity is a an expert witness
4. On the emotion, behavior, condition or appearance of a person which the witness
has observed;

There is no precise requirement as to the mode in which skill or experience shall

have been acquired. Scientific study and training are not always essential to the
competency of a witness as an expert. Knowledge acquired by doing is no less
valuable than that acquired by study. (Dilag Co. vs. Merced, 1949)

Polygraph test has not as yet attained scientific acceptance as a reliable and
accurate means of ascertaining truth or deception. (People vs. Adoviso, 1999)

Expert opinions are not ordinarily conclusive in the sense that they must be
accepted as true on the subject of their testimony, but are generally regarded as
purely advisory; the courts may place whatever weight they choose upon such
testimony and may reject it, if they find that it is inconsistent with the facts in the
case or otherwise unreasonable.(Punzalan v. Commission on Elections, et al.,
G.R. No. 126669)

Testimony of handwriting expert not indispensable to COMELEC. Handwriting

experts, while probably useful, are not indispensable in examining or comparing
handwriting; this can be done by the COMELEC itself. It was ruled by the
Supreme Court that evidence aliunde is not allowed to prove that a ballot is
marked, an inspection of the ballot itself being sufficient. ((Punzalan v.
Commission on Elections, et al., G.R. No. 126669)

5. On Ordinary matters known to all men of common perception (e.g. smelling shit! )
6. To determine WON the person is intoxicated
7. Matters that are of unquestionable demonstration and
8. Matters which fall within the realm of judicial notice (e.g. Laws of nature)

8. CHARACTER EVIDENCE
SEC. 51. Character evidence not generally admissible; exceptions: -
(a) In Criminal Cases:
1. The accused may prove his good moral character which is pertinent to the
moral trait involved in the offense charged.
2. Unless in rebuttal, the prosecution may not prove his bad moral character
which is pertinent to the moral trait involved in the offense charged.
3. 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.
(b) In Civil Cases:
Evidence of the moral character of a party in a civil case is admissible only when pertinent
to the issue of character involved in the case.
(c) In the case provided for in Rule 132, Section 14. (this is for the purpose of contradicting the
testimony of the witnesses)

REASON WHY NOT ADMISSIBLE IN COURT

Character is purely circumstantial. It is also legally irrelevant in determining the
controversy so that evidence relating ot character is not admissible.

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Example: A is charged with murder. A will now present testimony of certain

witnesses who knew him for a long time and will testify as to how good he is, etc. that is
character evidence. Is it relevant as to the issue of WON he killed or committed the crime
or offense? If a testimony is irrelevant, then it is purely a circumstantial evidence. It does
not directly prove the fact in issue in the case.

G.R. No. 139070 May 29, 2002

PEOPLE OF THE PHILIPPINES, vs.NOEL LEE

Character is defined to be the possession by a person of certain qualities of mind and

morals, distinguishing him from others. It is the opinion generally entertained of a person
derived from the common report of the people who are acquainted with him; his
reputation.32 "Good moral character" includes all the elements essential to make up such
a character; among these are common honesty and veracity, especially in all professional
intercourse; a character that measures up as good among people of the community in
which the person lives, or that is up to the standard of the average citizen; that status
which attaches to a man of good behavior and upright conduct. 33
The rule is that the character or reputation of a party is regarded as legally irrelevant in
determining a controversy, so that evidence relating thereto is not admissible. Ordinarily,
if the issues in the case were allowed to be influenced by evidence of the character or
reputation of the parties, the trial would be apt to have the aspects of a popularity contest
rather than a factual inquiry into the merits of the case. After all, the business of the court
is to try the case, and not the man; and a very bad man may have a righteous
cause.34 There are exceptions to this rule however and Section 51, Rule 130 gives the
exceptions in both criminal and civil cases.

In criminal cases, sub-paragraph 1 of Section 51 of Rule 130 provides that the accused
may prove his good moral character which is pertinent to the moral trait involved in the
offense charged. When the accused presents proof of his good moral character, this
strengthens the presumption of innocence, and where good character and reputation are
established, an inference arises that the accused did not commit the crime charged. This
view proceeds from the theory that a person of good character and high reputation is not
likely to have committed the act charged against him. 35 Sub-paragraph 2 provides that
the prosecution may not prove the bad moral character of the accused except only in
rebuttal and when such evidence is pertinent to the moral trait involved in the offense
charged. This is intended to avoid unfair prejudice to the accused who might otherwise
be convicted not because he is guilty but because he is a person of bad character. 36 The
offering of character evidence on his behalf is a privilege of the defendant, and the
prosecution cannot comment on the failure of the defendant to produce such
evidence.37 Once the defendant raises the issue of his good character, the prosecution
may, in rebuttal, offer evidence of the defendant’s bad character. Otherwise, a defendant,
secure from refutation, would have a license to unscrupulously impose a false character
upon the tribunal.38
COMMON THEME BETWEEN SUBPAR 1 &2 OF SECTION 51: Both sub-paragraphs
(1) and (2) of Section 51 of Rule 130 refer to character evidence of the accused.39 And
this evidence must be "pertinent to the moral trait involved in the offense charged,"
meaning, that the character evidence must be relevant and germane to the kind of the
act charged,40 e.g., on a charge of rape, character for chastity; on a charge of assault,
character for peacefulness or violence; on a charge for embezzlement, character for
honesty and integrity.41 Sub-paragraph (3) of Section 51 of the said Rule refers to the
character of the offended party.42 Character evidence, whether good or bad, of the
offended party may be proved "if it tends to establish in any reasonable degree the
probability or improbability of the offense charged." Such evidence is most commonly
offered to support a claim of self-defense in an assault or homicide case or a claim of
consent in a rape case.43

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In the Philippine setting, proof of the moral character of the offended

party is applied with frequency in sex offenses and homicide. 44 In rape and acts of
lasciviousness or in any prosecution involving an unchaste act perpetrated by a man
against a woman where the willingness of a woman is material, the woman’s character
as to her chastity is admissible to show whether or not she consented to the man’s
act.45 The exception to this is when the woman’s consent is immaterial such as in
statutory rape46 or rape with violence or intimidation.47 In the crimes of qualified
seduction48 or consented abduction,49 the offended party must be a "virgin," which is
"presumed if she is unmarried and of good reputation," 50 or a "virtuous woman of good
reputation."51 The crime of simple seduction involves "the seduction of a woman who is
single or a widow of good reputation, over twelve but under eighteen years of age x x
x." 52 The burden of proof that the complainant is a woman of good reputation lies in the
prosecution, and the accused may introduce evidence that the complainant is a woman
of bad reputation.53
SEXUAL ABUSE SHIELD RULE

This is an EXCEPTION to the rule on proving good moral character in cases of

rape and other similar offenses.
Rules on Examination of Child Witnesses
Sec. 30. Sexual abuse shield rule.—
(a) 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 predisposition
of the alleged victim.
(b) 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.

In homicide cases, a pertinent character trait of the victim is admissible in two situations:
(1) as evidence of the deceased’s aggression; and (2) as evidence of the state of mind of
the accused.54 The pugnacious, quarrelsome or trouble-seeking character of the
deceased or his calmness, gentleness and peaceful nature, as the case may be, is
relevant in determining whether the deceased or the accused was the aggressor. 55 When
the evidence tends to prove self-defense, the known violent character of the deceased is
also admissible to show that it produced a reasonable belief of imminent danger in the
mind of the accused and a justifiable conviction that a prompt defensive action was
necessary.56
In the instant case, proof of the bad moral character of the victim is irrelevant to
determine the probability or improbability of his killing. Accused-appellant has not alleged
that the victim was the aggressor or that the killing was made in self-defense. There is no
connection between the deceased’s drug addiction and thievery with his violent death in
the hands of accused-appellant. In light of the positive eyewitness testimony, the claim
that because of the victim’s bad character he could have been killed by any one of those
from whom he had stolen, is pure and simple speculation.

Moreover, proof of the victim’s bad moral character is not necessary in cases of murder
committed with treachery and premeditation. In People v. Soliman,57 a murder case, the
defense tried to prove the violent, quarrelsome or provocative character of the deceased.
Upon objection of the prosecution, the trial court disallowed the same. The Supreme
Court held:
"x x x While good or bad moral character may be availed of as an aid to
determine the probability or improbability of the commission of an offense
(Section 15, Rule 123),58 such is not necessary in the crime of murder
where the killing is committed through treachery or premeditation. The
proof of such character may only be allowed in homicide cases to show "that it

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has produced a reasonable belief of imminent danger in the mind of the accused
and a justifiable conviction that a prompt defensive action was necessary.This
rule does not apply to cases of murder."59
In the case at bar, accused-appellant is charged with murder committed through
treachery and evident premeditation. The evidence shows that there was treachery.
Joseph was sitting in his living room watching television when accused-appellant peeped
through the window and, without any warning, shot him twice in the head. There was no
opportunity at all for the victim to defend himself or retaliate against his attacker. The
suddenness and unexpectedness of the attack ensured his death without risk to the
assailant.

CASES
PEOPLE V. SAZON
SEPTEMBER 18, 1990

Parenthetically, it is true that the bad moral character of the offended party may be
proven in evidence to establish in any reasonable degree the probability of the offense
charged, 19 e.g., the quarrelsome nature of the victim may tend to establish that he
started the unlawful aggression. Nonetheless, such evidence, seeking to establish as it
does only a probability, cannot prevail over facts sufficiently proven by the prosecution
during the trial belying such aggression. These observations find application in the
instant case where the defense presented and now argue on character evidence
consisting of criminal charges involving minor offenses which had been filed against the
deceased, but not one of which resulted in conviction and were in fact dismissed except
for one case which was sent to the archives. 20
Obviously, whether or not appellant acted in self-defense is essentially a question of fact.
Being so and in the absence of any showing that the Court a quo failed to appreciate
facts or circumstances of weight and substance that would have altered its conclusion,
the court below, having seen and heard the witnesses during the trial, is in a better
position to evaluate their testimonies. No compelling reason, therefore, lies for this Court
to disturb the trial court's finding that appellant did not act in self-defense. 21

PEOPLE V. ADONIS

The defense also presented evidence to prove the bad moral character and quarrelsome
disposition of the deceased. Barangay Captain Uldarico Gobangco testified that
"whenever the victim got drunk, he would challenge anybody to a fight and that he was
also [known] to steal a carabao." 14 The Barangay Captain also stated that, per the
notebook where the customarily recorded all incidents occurring in their barangay, a
complaint for theft had been lodged against the deceased Basas. The trial court,
however, noted that the statements of the Barangay Captain Gobangco that the
deceased had habitually challenged other people to a fight whenever he was drunk found
no support in his own notebook.

The testimony of the Barangay Captain was given neither credence nor weight by the
trial court. While the accused may prove the bad moral character of the victim, the proof
must be of his general reputation in the community and not merely of isolated and
specific acts. 15 Thus, the mere allegation that a complaint for theft had been filed against
the victim cannot establish his general reputation. Besides, there was no showing that
Basas was ever convicted of that charge, assuming it had ever been filed.

CASES WHERE CHARACTER EVIDENCE USED IN ADMINISTRATIVE CASE

CSC V. BELAGAN
OCTOBER 19, 2002

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When the credibility of a witness is sought to be impeached by proof of his

reputation, it is necessary that the reputation shown should be that which existed before
the occurrence of the circumstances out of which the litigation arose, [1] or at the time of
the trial and prior thereto, but not at a period remote from the commencement of the suit.
[2]
This is because a person of derogatory character or reputation can still change or
reform himself.

Here, the Court of Appeals and the CSC are poles apart in their appreciation of
Magdalena’s derogatory record. While the former considered it of “vital and paramount
importance” in determining the truth of her charge, the latter dismissed it as of “minor
significance.” This contrariety propels us to the elusive area of character and reputation
evidence.

Generally, the character of a party is regarded as legally irrelevant in determining a

controversy.[15] One statutory exception is that relied upon by respondent, i.e., Section 51
(a) 3, Rule 130 of the Revised Rules on Evidence, which we quote here:
“SEC. 51. Character evidence not generally admissible; exceptions. –
(a) In Criminal Cases:
(4) 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.”
It will be readily observed that the above provision pertains only to criminal cases,
not to administrative offenses. And even assuming that this technical rule of evidence
can be applied here, still, we cannot sustain respondent’s posture.

Not every good or bad moral character of the offended party may be proved under
this provision. Only those which would establish the probability or improbability of the
offense charged. This means that the character evidence must be limited to the traits
and characteristics involved in the type of offense charged. [16] Thus, on a charge of rape -
character for chastity, on a charge of assault - character for peaceableness or violence,
and on a charge of embezzlement - character for honesty. [17] In one rape case, where it
was established that the alleged victim was morally loose and apparently uncaring about
her chastity, we found the conviction of the accused doubtful. [18]

In the present administrative case for sexual harassment, respondent did not offer
evidence that has a bearing on Magdalena’s chastity. What he presented are charges
for grave oral defamation, grave threats, unjust vexation, physical injuries, malicious
mischief, etc. filed against her. Certainly, these pieces of evidence are inadmissible under
the above provision because they do not establish the probability or improbability of the
offense charged.

CIVIL CASES WHERE PROOF OF MORAL CHARACTER IS ADMISSIBLE

1. Declaration of nullity of marriage tdue to psychological incapacity –when the party is
alleged to be psychologically incapacitated to comply with the essential marital
obligations of marriage, there are times when the evidence of his character must be
adduced.
2. Custody cases
3. Case provided in rule 132, section 14: SEC. 14. Evidence of good character of
witness. — Evidence of the good character of a witness is not admissible until such
character has been impeached
Rule 131
Burden of Proof and Presumptions

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SECTION 1. Burden of proof. — 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. (1a, 2a)

INTRODUCTION

Evidence is the means sanctioned by the rules in ascertaining in a judicial proceeding the
turht respecting a matter of fact. But beyond definition, we remember that evidence is
also the tool or the commodity by which we discharge the burden of proof. Thus, to
discharge the burden of proof is the end sought to be achieved by the presentation of
evidence. Burden of proof simply the obligation of party to persuade the court that he is
entitled to relief.

The burden of proof (Latin: onus probandi) is the obligation to shift the accepted
conclusion away from an oppositional opinion to one's own position.

The burden of proof is often associated with the Latin maxim semper necessitas
probandi incumbit ei qui agit, the best translation of which seems to be: "the necessity of
proof always lies with the person who lays charges." He who does not carry the burden of
proof carries the benefit of assumption, meaning he needs no evidence to support his
claim. Fulfilling the burden of proof effectively captures the benefit of assumption, passing
the burden of proof off to another party.

BURDEN OF PROOF (RISK OF NON-PERSUASION)

It is the duty of a party to present evidence on the facts in issue necessary to establish
his claim or defense by the amount required by law.

In CRIMINAL CASES: The burden of proof is on the prosecution, because under Rule
133 the accused is entitled to acquittal unless his guilt is demonstrated by proof beyond
reasonable doubt. In criminal cases, burden of proof is set to be pinned constitutionally
due to the constitutional mandate that the accused is presumed innocent until the
contrary is proven. The obligation to convince the trier of facts to show the guilt of the
accused beyond reasonable doubt is upon the prosecution to prove throughout the trial.

But there are instances where the INITIAL BURDEN OF PROOF rests upon the defense.
That is when the accused invokes the justifying circumstance of SELF-DEFENSE.

Who has the burden of proof in civil cases?

In CIVIL CASES: The usual principle is that whoever makes an affirmative allegation has
the burden of proof. The party who alleges a fact has the burden of proving it.

EXAMPLE: in eminent domain cases, the local government that seeks to expropriate
private land has the burden of proof to show existence of the compliance of the elements
for the valid exercise of the right of eminent domain.

In an action for damages against a party charged with negligence, can you say that such
party has the duty of proving that he was not negligent? NO. The rule is WHOEVER
ALLEGGES AFFIRMATIVE ALLEGATION is possessed with the burden of proof. So you
who says that the person is negligent has the burden of proof.

Basic RULES:

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1. He who alleges must prove what he has alleged

2. In civil cases, the burden of proof does not solely rest on the shoulder of any given
plaintiff. The burden of proof, under the clear terms of section 1 of rule 131 is the duty
to present evidence not only to establish a claim but also a defense.

EXAMPLE: In a case where a plaintiff files a case for collection of sum of money against
a person. Then he has the burden of proving that there is really such a debt. Conversely,
if the defendant admits the debt but the defense he claims is that he already paid the
debt to the creditor then he has such burden of proof that such payment had already
extinguished his obligation. He whoever alleges must prove it by the amount of evidence
required by law.

INFRINGEMENT CASES: The burden of proof to substantiate a charge of infringement

is with the plaintiff. But where he plaintiff introduces the patent in evidence, and the same
is in due form, there is created a prima facie presumption of its correctness and validity.
The decision of the Commissioner of Patent (now the Director of the Intellectual Property
Office), in granting the patent is presumed to be correct.

TEST TO DETERMINE WHO HAS THE BURDEN OF PROVING IN A CASE

We simply have to ask which party to the action or suit who is most likely to fail if no
evidence is presented. The party who has the burden of proof is the party who stands to
lose in the case if no evidence is presented by the parties to the case.

Case #1: if it’s the plaintiff who files the case then he has the burden of proving his
allegation against the defendant.

Case #2: Complaint is filed. Answer is filed but he alleges affirmative defenses (one of
confession and avoidance)

WHERE DO YOU PROCEED TO DETERMINE THE BURDEN OF PROOF

In the PLEADINGS-- The claim of the plaintiff which he must prove is spelled out in his
COMPLAINT and then the defendant’s defenses is also found in his ANSWER to the
complaint.

BURDEN OF PROOF NEVER SHIFTS

Burden of proof of both parties never shifts. Initially, it will be upon the person who
alleges. You prove your allegation. If h is not able to prove the allegation, the case will be
dismissed and is susceptible to the remedy of Demurrer of Evidence. The defendant also,
if the plaintiff is able to prove his allegation initially, the defendant will now proceed upon
his own burden of proof. He has to present evidence to rebut. If the initial burden of proof
is fixed upon the plaintiff and the defendant does not even have to do anything if the
plaintiff is not able to discharge his burden of proof, why is that? nganong dili man pwede
nga papresentathanon nimu ang defendant just in case the plaintiff has not discharged
fully his burden or wasn’t able to establish the elements of his cause of action? Because
the defendant, at that time has the BENEFIT OF ASSUMPTION. The defendant has the
benefit to be assumed or presumed to be not liable if the plaintiff is not able to discharge
his burden of proof. If the plaintiff is ABLE to discharge his burden of proof, sa iyaha
maadto ang benefit of assumption. There is NO shifting. Both paRties have their
respective burdens to discharge in a case.

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The burden of going forward with the evidence (burden of evidence) then
shifts to the defendant to overcome by competent evidence this legal presumption.
(Maguan v. Court of Appeals, et al., 146 SCRA 116, 117)

EFFECTS IF PLAINTIFF DISCHARGES HIS BURDEN OF PROOF

Effects:
1. He effectively captures the benefit of assumption He is correct until refuted by
the defendant
2. The plaintiff is deemed to have established PRIMA FACIE casewhen a prima
facie case is established, the burden of proof is effectively passed on to the
defending party. if the prosecution was able to establish the prima facie case and
therefore acquires the benefit of assumption, the accused will now have to
present evidence to establish his innocence.

RES IPSA LOQUITOR

As a rule of evidence, the doctrine of res ipsa loquituris peculiar to the law of negligence
which recognizes that prima facie negligence may be established without direct proof and
furnishes a substitute for specific proof of negligence

In a case for DAMAGES DUE TO RECKLESS IMPRUDENCE (quasi-delict, Article 2176)

and the application of the doctrine of res ipsa loquitor—we have to look at this in a
negative and positive aspect. if one party has the burden of proof and he is at that stage
in the trial where he has to discharge his burden, the other merely waits. Because if he is
not able to discharge the burden of proof, the other party can simply file a demurrer. He
has then the benefit of assumption.

In the application of Res Ipsa Loquitor, “the thing speaks for itself”, there is no need to
establish a prima facie case. if this exists, the plaintiff does nto have to establish a prima
facie case or he does not have the initial burden of proof. It is with the defendant because
by the operiaotn of the doctrine, the circumstances clearly provide that the defendant is
negligent. The thing speaks in such a way sthat there is no other explanation that it is the
defendant who is negligent. Therefore, the circumstances would show that the defendant
has the initial burden of proof to say that he was not negligent.

CASE: REPUBLIC V. LUZON STEVEDORING—barge barges into a pier. It has to be the

barge that is negligent. Between an immovable and movable object, an immovable object
cannot be attributed with fault.

The antithesis of this case is the case of PHOENIX V. IAC—in the case of Luzon
Stevedoring, it’s a stationary/immovable object where a movable object rams into it—res
ipsa loquitor. On the other hand, in this case of Phoenix, there is that situation that The
petitioners Phoenix and Carbonel contend that if there was negligence in the manner in
which the dump truck was parked, that negligence was merely a "passive and static
condition" and that private respondent Dionisio's recklessness constituted an intervening,
efficient cause determinative of the accident and the injuries he sustained. The need to
administer substantial justice as between the parties in this case, without having to
remand it back to the trial court after eleven years, compels us to address directly the
contention put forward by the petitioners and to examine for ourselves the record
pertaining to Dionisio's alleged negligence which must bear upon the liability, or extent of
liability, of Phoenix and Carbonel.

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TWO SEPARATE BURDENS IN BURDEN OF PROOF

Two separate burdens in Burden of Proof:
1. Burden of going forward- that of producing evidence
2. Burden of persuasion- burden of persuading the trier of fact that the burdened
party is entitled to prevail

BURDEN OF GOING FORWARD

Illustration of going forward with the evidence: For example after the existence of a debt
has been proven by the creditor the burden of proving payment devolves upon the
debtor. Where the debtor introduces evidence of payment, the burden of going forward
with the evidence - as distinct from the general burden of proof- shifts to the creditor who
is then under the duty of producing evidence to show non-payment. (Jimenez, et al, v.
NLRC, et al., G.R. No,. 116960, prom. April 2, 1996)

In short, the burden of going forward is the burden of producing evidence.

BURDEN OF PERSUASION

It is the burden of convincing or persuading the tribunal or trier of facts that the party,
possessed with the burden of proof is entitled to the relief. Now this would mean the
weight that is given by the court with the evidence you have given. Is the weight of
evidence presented pursuant to your duty of going forward with the evidence, is that the
one that will convince the trial of facts? That is the burden of persuasion.

SUMMARY

EFFECT OF ABSENCE OF EVIDENCE or no evidence is presented

CRIMINAL CASE: Accused is acquitted

CIVIL CASE:
a. When defendant does not file an answer  Plaintiff wins
b. When defendant files an answer and sets up purely negative defenses and no
evidence is presented by both sides Defendant wins because plaintiff has not
carried his burden
c. When defendant files an answer and sets up affirmative defenses and no evidence is
presented by both sides Plaintiff wins (note: an affirmative defense is one which is
a defense of a confession and avoidance. This means that while you admit, still there
is no claim that can be had because of reasons such as those found rule 16, section
1) You have already deemed to have hypothetically admitted the offense charged. If
there is an affirmative defense, there is a hearing as if a motion to dismiss has been
filed. Mu-una present na ug defense ang defendant. If he sets up the adffimative
defense, then he has the burden of proof. What if his defense is prescription? He
admits hypothetically that he has a debt. What if defendant does not present
evidence as to the dates and prove his prescription allegation? Then the plaintiff wins
because the hypothetical admission is equivalent to capturing the benefit of
assumption.

Example: The defendant filed an answer: “I admit that I borrowed money

from the plaintiff, but the plaintiff has no reason to run after me because I
have paid that account long time ago.” [If no evidence is presented by
both sides then plaintiff wins because the defendant admitted the

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existence of loan. And it is the defendant’s burden to prove his

affirmative defense.]

The ULTIMATE ANALYSIS is who stands to lose if no evidence is presented. If you

are able to answer that question, you are able to identify who has the burden of
proof.

BURDEN OF EVIDENCE

BURDEN OF EVIDENCE- the duty resting upon a party, by means of evidence, to create
or meet a prima facie case. Burden of evidence is applicable only if one party has already
discharged his initial burden of proof or if there is no need to present a prima facie case
because a presumption already applies.

There is no denying that in a criminal case, unless the guilt of the accused is established
by proof beyond reasonable doubt, he is entitled to an acquittal. But when the trial court
denies petitioners' motion to dismiss by way of demurrer to evidence on the ground that
the prosecution had established a prima facie case against them, they assume a definite
burden. It becomes incumbent upon petitioners to adduce evidence to meet and nullify, if
not overthrow, the prima facie case against them. 7 This is due to the shift in the burden
of evidence, and not of the burden of proof as petitioners would seem to believe.

When a prima facie case is established by the prosecution in a criminal case, as in the
case at bar, the burden of proof does not shift to the defense. It remains throughout the
trial with the party upon whom it is imposed—the prosecution. It is the burden of evidence
which shifts from party to party depending upon the exigencies of the case in the course
of the trial. 8 This burden of going forward with the evidence is met by evidence which
balances that introduced by the prosecution. Then the burden shifts back.

BAR QUESTION: BURDEN OF PROOF vs. BURDEN OF EVIDENCE. Distinguish 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. (Sec. 1 of
Rule 131), while burden of evidence is the duty of a party to go forward with the evidence
to overthrow prima facie evidence established against him. (Bautista v. Sarmiento, 138
SCRA 587 [1985]).

Burden of Proof of both parties NEVER SHIFTS, while Burden of Evidence is

TRANSFERRED from one litigant to another depending on the progress of trial.

ILLUSTRATION: Plaintiff files a complaint for recovery of a defaulted loan. Defendant

files an answer with a negative defense, denying the existence of the loan. [At the start,
the plaintiff has the burden of proof and also burden of evidence, he should go to trial
and present evidence to show that he has a cause of action. If he has introduced enough
proof that he has a cause of action, the burden of evidence will now be shifted to the
defendant. If defendant presents enough evidence to prove his negative defense then
the burden of evidence is shifted again to the plaintiff on rebuttal evidence.]

Burden of proof in trial is like playing Ping-Pong. If mu-serve ka and wala nilampas sa
net, it is a defective serve. Does the opponent have to do anything? Dili. He doesn’t have
to do anything yet he scores a point. But for as long as good ang imung serves, then
good ang laban, the burden shifts and alternates, party to party. that’s as simple as that.

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CAN THE ACCUSED IN A CRIMINAL/CIVIL CASE BEFORE PRESENTING HIS OWN

EVIDENCE ASCERTAIN CONDITIONALLY OR PROVISIONALLY WHETHER THE EVIDENCE
PRESENTED BY THE PROSECUTION IS ENOUGH TO CONVICT HIM?

Yes. In a criminal/civil case, the accused (defendant/plaintiff) can easily determine the
sentiment of the court concerning the quantum of evidence presented by the prosecution
(defendant/plaintiff) by simply filing a demurrer to evidence with leave of court.

Atty. Espejo: I usually file Demurrer in MTC cases because in case mupalpak, the client
can still file for Probation or to suspend the sentence or possible settlement of the case.
now when the judge rules that a prima facie case is established, judge will say how it was
established. So you know now pano xa i-refute. The problem with certain lawyers don’t
file demurrers is that tamad lang gyud sila.  that’s a tool that you can use. You can
provisionally ascertain whether the evidence presented is enough to convict your client.

PRINCIPLE OF NEGATIVING AVERMENT

A negative averment does not have to be proven UNLESS the negative averment is an
essential part of the cause of action or defense.

Example: In an information for illegal possession of firearms, the information will contain
an averment that the accused does not have a license to possess the firearm [negative
averment].
* In this case, the negative averment is an essential part of the commission of the
crime, hence this must be proven.

DOCTRINE OF EQUIPOISE OR EQUIPONDERANCE RULE

The "equipoise doctrine" is the rule which states that when the evidence of the
prosecution and the defense are so evenly balanced the appreciation of such evidence
calls for tilting of the scales in favor of the accused. Thus, the evidence for the
prosecution must be heavier to overcome the presumption of innocence of the accused.
The constitutional basis of the rule is Bill of Rights which finds expressions in Sec. 1, par.
(a), Rule 115 of the 1985 Rules on Criminal Procedure as amended

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 fails upon
that issue.(Rivera v. Court of Appeals, et al., G.R. No. 115625, prom. 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)

A simpler illustration of this rule is like when a judge would now determine the evidentiary
weight of what was presented. See where scale is tilted. We do not make use of
mathematical formula here although Wigmore tried to do that but it didn’t catch on. In this
case, where the evidence of both sides are evenly balanced, who wins? That’s the
situation that is illustrated or addressed by the Doctrine of Equipoise. DETERMINE WHO
HAS THE BURDEN OF PROOF. If it is the plaintiff who has the burden of proof, he must
be the one who stands to lose if no evidence is presented and if the evidence is equal,
then it will be the DEFENDANT WHO WINS because plaintiff was not able to discharge

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his burden. Kung nilamang pa xa ug 1kilo, then mudaog xa. Pero equal man,
pildi xa.

In this situation, the case is decided AGAINST the party with the burden of proof.
Hence, where the burden of proof is on the plaintiff and the evidence does not
suggest that the scale of justice should weigh on his favor, the court should render
a judgment in favor of the defendant.

Situation #2: Here’s the prosecution who presents evidence which is 10Kilos worth of
evidence then the defense also presents 10kgs worth of evidence. Who wins? The
accused. but not because of the equiponderance rule. Why? Because it is according to
the Constitution. The accused is presumed innocent until the contrary is proven. He
cannot be convicted unless his guilt is shown beyond reasonable doubt.

However, sometimes in the Philippines we disregard presumptions in favor of the

accused because of that public perception that is implicated in the mind of the judge. For
example, PUBLIC CLAMOR, TELEVISION, etc.

CASES WHERE EQUIPOISE DOCTRINE IS NOT APPLICABLE

1. Criminal cases
2. Labor cases—because in case of doubt, always resolve in favor of labor. (Adana
case)

BASIS

The basis is the basic due process consideration. The doctrine is based on the principle
that no man shall be depried of life, liberty or property without due process of law.

BAR QUESTION 1995.

Explain the doctrine of equipoise in the law of evidence and cite its constitutional basis.
Answer: no man shall be deprived of life, liberty or property without due process of law.

This is why I have a criticism of this suggested answer of UP. The answer of UP was “this is
based on the presumption of innocence of the accused”. Remember there is no equipoise rule in
criminal cases. It is only applicable in CIVIL cases.

2. PRESUMPTIONS – RULE 131, SECS. 2-4

PRESUMPTION

it is an inference as to the existence or non-existence of a fact which courts are

permitted to draw from the proof of other facts.

A presumption is an assumption of fact of a rule of law which requires such fact to be

assumed from another fact or group of facts found or otherwise established in the action.

IS PRESUMPTION EVIDENCE?

Answer: NO. Presumption is NOT evidence but they affect the burden of offering
evidence. It is not evidence itself but is is an assumption resulting in evidence. In a
sense, a presumption is an inference which is mandatory unless it is rebutted.

Example: B is the debtor of C. for 1 million payable in 12 equal monthly installments. If

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evidence is produced that the installment payment for December has been
received by the creditor, what is th presumption that arises? That all previous installment
shave already been paid. The receipt of a alter installment of a debt without reservation
as to prior installments shall give rise to a presumption that such installments have
already been paid. (article 1176 of the Civil Code)

INFERENCE V. PRESUMPTION

Both actually require logical reasoning on the part of the trier of facts. INFERENCE is a
factual conclusion that can be found rationally from other facts. It is one that as a result of
a reasoning process. An inference does not have a legal effect while a presumption has a
legal effect. in fact, a presumption is actually mandated by law and establishes a legal
relation between or among facts.

WHY IS PRESUMPTION LUMPED WITH BURDEN OF PROOF?

This is because of the intimate connection of the two. As a rule, the burden of proof lies
upon he who alleges and not upon one who denies. However, when there is an
applicable presumption, the burden of evidence shifts on the party who denies to dispute
that applicable presumption. Therefore, an unrebutted presumption is equivalent to truth.

What is the effect of ADMISSION and EFFEFT OF JUDICIAL NOTICE

The effect is to withdraw a certain matter of fact from contention. It is either admitted or
submitted to judicial notice. This is also the same effect to Presumptions. A Presumption,
if unrebutted, no need for proof. In that sense, Presumption and Judicial notice are similar
with Admissions.

DIFFERENT TYPES OF PRESUMPTIONS

1. PRESUMPTION JURIS OR PRESUMPTION OF LAW

 a deduction which the law expressly directs to be made from particular facts
 Must be made whenever the facts appear which furnish the basis for the inference
 Reduced to fixed rules and form part of the system of jurisprudence
 Example: 2185 in torts and damages. If the defendant at the time of mishap was
guilty of violating any traffic ordinance, he is presumed to be negligent. It doesn’t
really follow right? Dili man automatic nga conclusion nga if wala kay helmet, liable
na ka. But because the trier of facts are directed by law to draw that conclusion or
legal inference, the trier of facts has no choice but to supply the set of facts by which
the inference shall apply.

2. PRESUMPTION HOMINIS OR PRESUMPTION OF FACT

 A deduction which reason draws from facts proved without an express direction from
the law to that effect (The law does not say but it will still be useful. i.e. A killed B.
what is the presumption than can be drawn from that? that A does not like B. that is a
presumption of fact and not of law. But what is a presumption of law in that case? that
there is a criminal intent)
 Discretionary on the court
 Derived from circumstances of a particular case through common experience of
mankind

CLASSIFICATIONS OF PRESUMPTIONS OF LAW (Presumption juris et de jure)

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1. CONCLUSIVE- not permitted to be overcome by any proof to

the contrary. Presumption becomes conclusive when such presumption
becomes irrebuttable upon the presentation of evidence and any
evidence tending to rebut the presumption is not admissible, not useful,
not needed even if it is irrelevant. The presumption is in reality not a
procedural rule but a rule of substantive law.
2. DISPUTABLE—the law permits a presumption juris tantum to be overcome or
contradicted by contrary evidence. A presumption is disputable or
rebuttable if it may be contradicted or overcome by evidence. When
evidence which rebuts the presumption is introduced, the force of the
presumption disappears.

Example: there’s evidence of payment of a later installment. The

presumption is that all previous installments were already paid. However,
when evidence is shown that such was really not made, the presumption
loses efficacy and the presumption should fail.

PRIMA FACIE EVIDENCE

Prima facie from Latin: prīmā faciē) is a Latin expression meaning on its first
encounter, first blush, or at first sight. The literal translation would be "at first face" or "at
first appearance", from the feminine form of primus ("first") and facies ("face"), both in
the ablative case. It is used in modern legal English to signify that on first examination, a
matter appears to be self-evident from the facts. In common law jurisdictions, prima
facie denotes evidence that – unless rebutted – would be sufficient to prove a particular
proposition or fact. The term is used similarly in academic philosophy. Most legal
proceedings require a prima facie case to exist, following which proceedings may then
commence to test it, and create a ruling.

CONCLUSIVE PRESUMPTIONS

Instances where there is a conclusive presumption:

2.1.1. Whenever a party by his own declaration, act, omission, has led another –
1 to believe a particular thing to be true AND
2 to act upon such belief,
3 He cannot in any litigation arising out of such declaration, act or omission
be permitted to falsify it. (Estoppel)

2.1.2. 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.

Conclusive presumptions under the Rules of court are based on the doctrine of estoppel.
Under this doctrine, the person making the representation cannot claim benefit from the
wrong he himself committed.

Example: Persons in a corporation who assume without legal authority acts such shall be
considered as corporation by estoppel and shall be liable as general partners (section 21,
corporation code)

Note: There is also a conclusive presumption under the Rule 39, which is a public policy
principle of res judicata (a judgment is conclusive upon the title to the thing or upon the
political or legal condition of a person, {judgment in rem or in personam})

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SEC. 2. Conclusive presumptions.— The following are instances of conclusive

presumptions:

(a) 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;

(b) 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. (3a)

Section 2(a) (a) 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;

ESTOPPEL

When have you learned this? In first year. To my mind, this should not be discussed in the
1st year. Estoppel is not even a substantive principle. It is an EQUITABLE principle.

Article 1431. Through estoppel an admission or representation is rendered conclusive

upon the person making it, and cannot be denied or disproved as against the person
relying thereon.

Reduced to its simplest terms, it is the same as the first conclusive presumption. When
you say or admit to someone something, you cannot be permitted to rebut that later on
because that presentation or admission is rendered conclusive

CASES

ALCARAZ V. TANGGA-AN
April 9, 2003

They claim that the lease contract ceased to be effective because Virgilio’s assumption of
ownership of the land stripped the respondents of ownership of the building. They argue
that, under Article 440 of the Civil Code, Virgilio’s title over the lot necessarily included
the house on the said lot, thus automatically canceling the contract.

Section 2, Rule 131 of the Rules of Court provides as a conclusive presumption that:
Sec. 2. Conclusive presumptions. – The following are instances of conclusive
presumptions:
(a) 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;
xxx xxx xxx

After recognizing the validity of the lease contract for two years, the petitioner
spouses are barred from alleging the automatic cancellation of the contract on the
ground that the respondents lost ownership of the house after Virgilio acquired title over
the lot.

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MENDOZA V. CA
June 25, 2001

This case tells you of “Promissory Estoppel”

The broad general rule to the effect that a promise to do or not to do something in the
future does not work an estoppel must be qualified, since there are numerous cases in
which an estoppel has been predicated on promises or assurances as to future
conduct. The doctrine of ‘promissory estoppel’ is by no means new, although the
name has been adopted only in comparatively recent years. According to that doctrine,
an estoppel may arise from the making of a promise, even though without consideration,
if it was intended that the promise should be relied upon and in fact it was relied upon,
and if a refusal to enforce it would be virtually to sanction the perpetration of fraud or
would result in other injustice. In this respect, the reliance by the promisee is generally
evidenced by action or forbearance on his part, and the idea has been expressed that
such action or forbearance would reasonably have been expected by the promissor. Xxx

The doctrine of promissory estoppel is an exception to the general rule that a

promise of future conduct does not constitute an estoppel. In some jurisdictions, in order
to make out a claim of promissory estoppel, a party bears the burden of establishing the
following elements: (1) a promise reasonably expected to induce action or forebearance;
(2) such promise did in fact induce such action or forebearance, and (3) the party
suffered detriment as a result.[19]

It is clear from the forgoing that the doctrine of promissory estoppel presupposes the
existence of a promise on the part of one against whom estoppel is claimed. The
promise must be plain and unambiguous and sufficiently specific so that the Judiciary
can understand the obligation assumed and enforce the promise according to its terms.
[20]
For petitioner to claim that respondent PNB is estopped to deny the five-year
restructuring plan, he must first prove that respondent PNB had promised to approve the
plan in exchange for the submission of the proposal. As discussed earlier, no such
promise was proven, therefore, the doctrine does not apply to the case at bar. A cause
of action for promissory estoppel does not lie where an alleged oral promise was
conditional, so that reliance upon it was not reasonable. [21] It does not operate to create
liability where it does not otherwise exist.

(b) 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.

This is related to article 1436: Article 1436. A lessee or a bailee is estopped from
asserting title to the thing leased or received, as against the lessor or bailor.

Commodatum—Nanghulam ka ug ballpen then later muingon ka sa tag-iya nga, “ako-a

man ni”. Dili na pwede.

CASES
DATA LIFT MOVERS V. BELGRAVIA
August 30, 2006

Conclusive presumptions have been defined as “inferences which the law makes so
peremptory that it will not allow them to be overturned by any contrary proof however
strong.”[7] As long as the lessor-lessee relationship between the petitioners and
Belgravia exists as in this case, the former, as lessees, cannot by any proof, however

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strong, overturn the conclusive presumption that Belgravia has valid title to or
better right of possession to the subject leased premises than they have.

TAMIO V. TICSON
485 PHIL. 434, 444 (2004).

The juridical relationship between x x x [a] lessor and x x x [a lessee] carries with
it a recognition of the lessor's title. As [lessee, the petitioner is] estopped [from denying
the] landlord's title, or to assert a better title not only in [herself], but also in some third
person while [she remains] in possession of the subject premises and until [she
surrenders] possession to the landlord. This estoppel applies even though the lessor
had no title at the time the relation of [the] lessor and [the] lessee was created, and
may be asserted not only by the original lessor, but also by those who succeed to
his title.”[24] Once a contact of lease is shown to exist between the parties, the lessee
cannot by any proof, however strong, overturn the conclusive presumption that the lessor
has a valid title to or a better right of possession to the subject premises than the lessee.

The Court thus explained in Tamio v. Ticson:[25]

Indeed, the relation of lessor and lessee does not depend on the
former’s title but on the agreement between the parties, followed by the
possession of the premises by the lessee under such agreement. As
long as the latter remains in undisturbed possession, it is immaterial
whether the lessor has a valid title – or any title at all – at the time the
relationship was entered into. [citations omitted]

EXCEPTIONS
1. In a case where the landlord-tenant relationship is not sufficiently established or where
the very existence of the relationship is the very fact in issue of the case. (Consumido v.
Ros)
2. If there was a change in tehnature of the title of th landlord during the subsistence of the
lease (Borre v. CA)

CASES

CONSUMIDO V. ROS
July 31, 2007

Respondents argue that petitioner is estopped from denying the landlord-lessee

relationship between the parties because of her admission that she paid rentals to
respondents in her belief that the former were the owners of the premises.

For estoppel to apply, the action giving rise thereto must be unequivocal and intentional
because, if misapplied, estoppel may become a tool of injustice. 26 Estoppel is a principle
that, as a rule, can be invoked only in highly exceptional and legitimate cases. 27 The
essential elements of estoppel in respect to the party claiming it are: (a) lack of
knowledge and of the means of knowledge of the truth as the facts in question; (b)
reliance, in good faith, upon the conduct or statements of the party to be estopped; and
(c) action or inaction based thereon of such character as to change the position or status
of the party claiming the estoppel, to his injury, detriment, or prejudice. 28

The first element is absent in the instant case. Respondents cannot claim estoppel
against petitioner because they knew fully well that they were accepting rentals from

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petitioner in their capacity as mere administrators of the leased premises or

only on behalf of the late Ramon Saura, Sr. and/or VGFC. Respondents cannot assert
that they did not know for a fact that they were never parties to the lease agreement. The
fact that petitioner initially thought respondents were the owners of the leased premises
does not put her in estoppel because respondents were expected to know in what
capacity they accepted the payments.

Neither is petitioner estopped in denying respondents’ title. The conclusive presumption

set forth in Rule 131, Section 2(b) 29 of the Rules of Court applies only when the landlord
and tenant relationship has been sufficiently established. In the case at bar, this is
precisely the issue to be resolved as petitioner has consistently alleged that there was no
lease agreement between the parties. Moreover, respondents themselves have not
asserted ownership over the leased premises, the truth of the matter being that
respondents were never the registered owners of the leased premises.

BORRE V. CA
MARCH 14, 1998

The rule on estoppel against tenants is subject to a qualification. It does not apply if the
landlord's title has expired, or has been conveyed to another, or has been defeated by a
title paramount, subsequent to the commencement of lessor-lessee relationship [VII
Francisco, The Revised Rules of Court in the Philippines 87 (1973)]. In other words, if
there was a change in the nature of the title of the landlord during the subsistence of the
lease, then the presumption does not apply. Otherwise, if the nature of the landlord's title
remains as it was during the commencement of the relation of landlord and tenant, then
estoppel lies against the tenant.

SEC. 3. Disputable presumptions.— The following presumptions are satisfactory if

uncontradicted, but may be contradicted and overcome by other evidence:

DISPUTABLE
The disputable presumptions under this provision are deemed to be disputable because
they admit proof to the contrary. The are termed ‘prima facie presumptions” only because
they are or can be rebutted but at first blush, they are sufficient to form a conviction.
However, when adequate proof is presented, they may be contradicted and overcome by
other evidence.

(a) That a person is innocent of crime or wrong;

PRESUMPTION OF INNOCENCE

This is related to the presumption of innocence in criminal cases found in article 3 of the
constitution. This is also in consonance with the general rule that in burden of proof, the
prosecution has the burden of proving the guilt of the accused, who therefore carries the
benefit of assumption.

WHAT PROVISIONS OF LAW ESTABLISH AND STRENGTHEN

THE RULE ON PRESUMPTION OF INNOCENCE?

1. ARTICLE 3, SECTION 14 -- (2) In all criminal prosecutions, the accused shall be

presumed innocent until the contrary is proved, and shall enjoy the right to be heard by
himself and counsel, to be informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and
to have compulsory process to secure the attendance of witnesses and the production of
evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the

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absence of the accused provided that he has been duly notified and his failure
to appear is unjustifiable.
2. RULE 131, SECTION 3(A)—Tat the person is innocent of crime or wrong
3. RULE 133, SECTION 2-- Section 2. Proof beyond reasonable doubt. — In a criminal
case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable
doubt. Proof beyond reasonable doubt does not mean such a degree of proof, excluding
possibility of error, produces absolute certainly. Moral certainly only is required, or that
degree of proof which produces conviction in an unprejudiced mind.

NOTE: THIS PRESUMPTION APPLIES NOT ONLY IN CRIMINAL CASES BUT ALSO IN CIVIL
CASES.
Reason: this provision mentions “crime OR wrong”

(b) That an unlawful act was done with an unlawful intent;

Criminal intent or mens rea is presumed. You do not have to prove that. what negates mens rea?
1. diminished capacity
2. lack of intelligence
3. justifying circumstance

(c) That a person intends the ordinary consequences of his voluntary act;

Relate with Article 4 of the Revised Penal code:

Article 4. Criminal liability. - Criminal liability shall be incurred:
1. By any person committing a felony (delito) although the wrongful act done be
different from that which he intended. (Praeter Intentionem)
2. By any person performing an act which would be an offense against persons
or property, were it not for the inherent impossibility of its accomplishment or an
account of the employment of inadequate or ineffectual means.(Impossible
Crime)

CASE
EDGARDO CARIAGA, ET AL. vs. LAGUNATAYABAS BUS COMPANY.
G.R. No. L-11037 December 29, 1960

Case: damages in transportation cases

Issue: compensation for loss of earning capacity

We are of the opinion, however, that the income which Edgardo Cariaga could earn if he
should finish the medical course and pass the corresponding board examinations must
be deemed to be within the same category because they could have reasonably been
foreseen by the parties at the time he boarded the bus No. 133 owned and operated by
the LTB. At that time he was already a fourth-year student in medicine in a reputable
university. While his scholastic may not be first rate it is, nevertheless, sufficient to justify
the assumption that he could have passed the board test in due time. As regards the
income that he could possibly earn as a medical practitioner, it appears that, according to
Dr. Amado Doria, a witness for the LTB, the amount of P300.00 could easily be expected
as the minimum monthly income of Edgardo had he finished his studies.

Upon consideration of all the facts mentioned heretofore this Court is of the opinion, and
so holds, that the compensatory damages awarded to Edgardo Cariaga should be
increased to P25,000.00.

Principle: this is a case of quasi-delict and therefore, he must be liable for all the logical
consequences of his negligent act.

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(d) That a person takes ordinary care of his concerns;

ORDINARY CARE

It is that diligence of a good father of a family or that diligence observed by somebody

who is normally careful about his undertakings and dealings. Default diligence is that
diligence of a good father of a family or diligence of normal prudence. In the absence of
any showing irresponsibility on the part of the defendant. He enjoys the benefit of having
to be assumed to have acted with due care and that he takes ordinary care of his
concerns.

However, a different rule applies when we look at article 2180 on VICARIOUS

LIABILITIES. In this provision, you are not assumed to be taking ordinary care of your
ordinary concerns. But you may rebut that adverse presumption by proof of diligence of a
good father of family. The reverse of the rule is just with article 2180

Article 2180. The obligation imposed by article 2176 is demandable not only for
one's own acts or omissions, but also for those of persons for whom one is
responsible.
The father and, in case of his death or incapacity, the mother, are responsible for
the damages caused by the minor children who live in their company.
Guardians are liable for damages caused by the minors or incapacitated persons
who are under their authority and live in their company.
The owners and managers of an establishment or enterprise are likewise
responsible for damages caused by their employees in the service of the
branches in which the latter are employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or industry.
The State is responsible in like manner when it acts through a special agent; but
not when the damage has been caused by the official to whom the task done
properly pertains, in which case what is provided in article 2176 shall be
applicable.
Lastly, teachers or heads of establishments of arts and trades shall be liable for
damages caused by their pupils and students or apprentices, so long as they
remain in their custody.
The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family
to prevent damage.

(e) That evidence willfully suppressed would be adverse if produced;

SUPPRESSION OF EVIDENCE

This is the adverse presumption of SUPPRESSION OF EVIDENCE. This stems from

human nature. If you have nothing to fear, you have nothing to hide. Only a man who is
affected by adverse evidence will attempt to hide. This is actually to discourage
suppression of evidence.

WHERE THE RULE ON SUPPRESSION OF EVIDENCE

WILL NOT APPLY

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Under this rule, the rule that “evidence willfully suppressed would be adverse
if produced” does not apply in the following instances:

1. THE EVIDENCE IS AT THE DISPOSAL OF BOTH PARTIES (People v. Ducay,

225 SCRA 1) the defendant is
2. IF THE SUPPRESSION WAS NOT WILLFULL (People v. Padrigone)

[G.R. No. 137664 : May 9, 2002]

PEOPLE OF THE PHILIPPINES vs. ROBERTO PADRIGONE

Besides, the non-presentation of Rowena on the witness stand cannot

be considered as suppression of evidence. Under Rule 131, Section 3(e)
of the Rules of Court, the rule that evidence willfully suppressed would
be adverse if produced does not apply if (a) the evidence is at the
disposal of both parties; (b) the suppression was not willful; (c) it is
merely corroborative or cumulative; and (d) the suppression is an
exercise of a privilege.

Plainly, there was no suppression of evidence in this case. First, the

defense had the opportunity to subpoena Rowena even if the
prosecution did not present her as a witness. Instead, the defense failed
to call her to the witness stand. Second, Rowena was certified to be
suffering from Acute Psychotic Depressive Condition and thus cannot
stand judicial proceedings yet.[19 The non-presentation, therefore, of
Rowena was not willful. Third, in any case, while Rowena was the
victim, Nimfa was also present and in fact witnessed the violation
committed on her sister.

3. THE EVIDENCE IS MERELY CUMULATIVE OR CORROBATIVE evidence of

the same kind had already been presented.

4. IF THE SUPPRESSION IS BY VIRTUE OF AN EXERCISE OF A PRIVILEGE 

attorney-client privilege; physician-patient privilege; prerogative of the
prosecution to present the number of witnesses in order to prosecute the
accused.

PREROGATIVE OF THE PROSECUTION TO PRESENT THE NUMBER OF WITNESSES IN

ORDER TO PROSECUTE THE ACCUSED

G.R. No. 172744, September 29, 2008]

MARVIN ANGELES, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,
RESPONDENT.

There was no suppression of evidence by the prosecution when it did not present
Dennis as one of its witnesses. The prosecutor has the exclusive prerogative to
determine the witnesses to be presented for the prosecution. If the prosecution
has several eyewitnesses, as in the instant case, the prosecutor need not
present all of them but only as many as may be needed to meet the quantum of
proof necessary to establish the guilt of the accused beyond reasonable doubt.
Besides, there is no showing that the witness who was not presented in court
was not available to the accused. We reiterate the rule that the adverse
presumption from a suppression of evidence is not applicable when (1) the
suppression is not willful; (2) the evidence suppressed or withheld is merely
corroborative or cumulative; (3) the evidence is at the disposal of both parties;

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and (4) the suppression is an exercise of a privilege. [21] Moreover, if Angeles

believed that the failure to present Dennis was because his testimony would be
unfavorable to the prosecution, Angeles should have compelled Dennis'
appearance by compulsory process to testify as his own witness or even as a
hostile witness.

PEOPLE V. ISLA
[G.R. No. 96176. August 21, 1997]

While it may be true that the prosecution may not be compelled to present a
witness or witnesses, it is undeniable that the non-presentation of a witness is
tantamount to suppression of evidence, [15] especially if the prosecution witnesses
already presented, have no personal knowledge of the facts which could
establish the elements of the crime charged.

Hence, the non-presentation of witnesses, Cristy Manalastas, Julie and

Baby Wycoco who allegedly saw the pregnant woman, raises serious doubt as to
the truthfulness of the testimony of Mr. Organez.

PRESUMTPION ON EVIDENCE THAT IS FABRICATED

If a party resorts to fabrication of evidence, there is a related presumption that the case of
the fabricator is weak and its evidence dishonest.

(f) That money paid by one to another was due to the latter;

The law presumes the person to be careful in matters of money because he unusually parts of his
money unless he is sure as what the transaction and what he is paying it for.

(g) That a thing delivered by one to another belonged to the latter;

PRESUMPTION OF OWNERHSIP BY DELIVERY

There’s a presumption that when you deliver something, there is that intention that stems
from the ownership of the thing. Remember in Sales, it is the delivery which actually
transfers ownership and not the contract. In commodatum, if you have given a thing, it
will be presumed na imung gi-uli—a thing delivered by one to another belonged to the
latter.

WHERE NO PRESUMPTION OF OWNERSHIP IN CASE OF DELIVERY OF THE THING

This presumption must be made to exclude certain deliveries made pursuant to certain
contracts. For instance, it does not apply: (instances
1. In the perfection of contracts of bailment (?)
2. Also in a contract of deposit

(h) That an obligation delivered up to the debtor has been paid;

MEANING OF OBLIGATION

The term ‘obligation” here must be taken to mean an evidence of the obligation. For
example, a promissory note. A executed a PN promising to pay D the sum of P50. Later
on, that evidence of indebtedness is already in the possession of the person to whom the
promissory note was executed. Here, the presumption is that the obligation has already
been paid.

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HOW DO YOU DELIVER THE OBLIGATION UP TO THE DEBTOR?

The obligation here is taken to mean the evidence of indebtedness. Same thing applies
to checks. Pay to the order of P or pay to B, etc.

TWIN PRESUMPTIONS OF PAYMENT

There are twin presumptions of payment that are related to letter (h). they are in the civil
code
1. 1271
2. 1272

Article 1271. The delivery of a private document evidencing a credit, made voluntarily by
the creditor to the debtor, implies the renunciation of the action which the former had
against the latter.
If in order to nullify this waiver it should be claimed to be inofficious, the debtor and his
heirs may uphold it by proving that the delivery of the document was made in virtue of
payment of the debt. (1188)

Article 1272. Whenever the private document in which the debt appears is found in the
possession of the debtor, it shall be presumed that the creditor delivered it voluntarily,
unless the contrary is proved.

(i) That prior rents or installments had been paid when a receipt for the later ones is
produced;

Relate with 1253 of the Civil code: Article 1253. If the debt produces interest, payment of the
principal shall not be deemed to have been made until the interests have been covered.

Before you pay off the principal, bayaran sa nimu ang interest. Once you have made payment for
the last installment, the presumption is that prior rents or installment had been paid.

(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;

TWO PRESUMTPIONS

1. ADVERSE PRESUMPTION OF STOLEN GOODS

2. A person who possesses or who exercises ownership over the thing is presumed to
be the owner without prejudice to the proof on the contrary.

ADVERSE PRESUMPTION OF STOLEN GOODS

In criminal law, we can also give similar presumptions. For example:

1. The presumption that the person in possession of the object of theft or
robbery is deemed to be the author of the theft or robbery; or
2. possession of a falsified or forged document is deemed to be the author of
falsification or forgery (this is however not absolute and is susceptible to
proof to the contrary)
GUIDELINES

In order for the presumptions in letter (j) to apply, 3 guidelines must be met:
1. Commission—there must be a recent wrongful act of theft, taking or robbery.

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2. Possession—possession of the stolen object by the person against whom the

presumption is to be taken against
3. Succession—more accurately, that the commission of the crime must be recent
and the possession must immediately succeed the commission. Therefore, the
presumption will NOT apply if the possession of the stolen object is already very
remote in time and tacked of course from the time of the commission of the act.

For example, after 1 month pa nimu nareklamo. There could still be a

presumption but the presumption will already be weak the logner the time had
already elapsed.

IMPORTANT: THE PRESUMPTION APPLIES ONLY IF THE ACCUSED IS UNABLE TO

EXPLAIN HIS POSSESSION OF THE OBJECT SATISFACTORILY.

(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;

This is related to letter (h). if you already have it, it means it has already been paid. For example,
Bills of Lading. Pag nauli na na xa, the thing subject of the bill of lading had already been
returned or claimed by the consignee.

(l) That a person acting in a public office was regularly appointed or elected to it;

There is no presumption of Usurpation.

(m) That official duty has been regularly performed;

Together with letter (l) and (m), this constitutes the PRESUMPTION OF REGULARITY
OF OFFICIAL ACTS.

REASON
G.R. No. 106025 February 9, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
v. CARLOS DE GUZMAN y PANALIGAN

A disputable presumption has been as a species of evidence that may be

accepted and acted on where there is no other evidence to uphold the contention for
which it stands, or one which may be overcome by other evidence. 10 One such
disputable/rebuttable presumption is that an official act or duty has been regularly
performed. 11Presumption of this nature is indulged by the law for the following
fundamental reasons: first, innocence, and not wrong-doing, is to be presumed; second,
an official oath will not be violated; and third, a republican form of government cannot
survive long unless a limit is placed upon controversies and certain trust and confidence
reposed in each governmental department or agent by every other such department or
agent, at least to the extent of such presumption. 12 Thus, this presumption evidences a
rule of convenient public policy universally applied and without which great distress
would spring in the affairs of men.
The presumption of regularity of official acts may be rebutted by affirmative
evidence of irregularity or failure to perform a duty. The presumption, however,
prevails until it is overcome by no less than clear and convincing evidence to the
contrary. Thus, unless the presumption is rebutted, it becomes conclusive. Every
reasonable intendment will be made in support of the presumption and in case of doubt
as to an officer's act being lawful or unlawful, construction should be in favor of its
lawfulness.

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CONFLICT WITH ACCUSED’ PRESUMPTION OF INNOCENCE

A police officer who enjoys presumption of regularity of performance of his acts and the
accused who enjoys his constitutionally guaranteed presumption of innocence. Let’s say
a case wher ethe police fabricated an evidence against the accused. Of course, the
police would rebut. What about the constitutional right of the accused?

PEOPLE V. DONALDO PADILLA

G.R. No. 172603 August 24, 2007

The presumption of regularity in the performance of official functions cannot by

itself affect the constitutional presumption of innocence of the accused,
particularly if the evidence for the prosecution is weak. People v. Mirantes[8] so
teaches:

The oft-cited presumption of regularity in the performance of official functions

cannot by itself affect the constitutional presumption of innocence enjoyed by an
accused, particularly when the prosecution’s evidence is weak.
The evidence of the prosecution must be strong enough to pierce the shield
of this presumptive innocence and to establish the guilt of the accused beyond
reasonable doubt.

And where the evidence of the prosecution is insufficient to overcome this

presumption, necessarily, the judgment of conviction of the court a quo must be
set aside.The onus probandi on the prosecution is not discharged by casting
doubts upon the innocence of an accused, but by eliminating all reasonable
doubts as to his guilt.

(n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was
acting in the lawful exercise of jurisdiction;

Jurisdiction cannot be presumed but Acts of Jurisdiction can be presumed.

(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;

‘passed upon”—it means it was considered. Letters N and letter O are collectively known as the
PRESUMPTION OF REGULARITY OF JUDICIAL ACTS.

(p) That private transactions have been fair and regular;

PRESUMPTION OF REGULARITY OF PRIVATE TRANSACTIONS

Rationale: Good faith is always presumed. It is the burden o the person claiming otherwise to
adduce clear and convincing evidence on the contrary.

INSTANCES WHERE CLEAR AND CONVINCING EVIDENCE IS REQUIRED

1. Criminal law
2. When you are about to rebut a presumption (under the Rules of court)

Same thing with FRAUD.

G.R. No. 115734 February 23, 2000

LOYOLA V. CA

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The rule on fraud is that it is never presumed, but must be both alleged and proved. 15 For
a contract to be annulled on the ground of fraud, it must be shown that the vendor never
gave consent to its execution. If a competent person has assented to a contract freely
and fairly, said person is bound. There also is a disputable presumption, that private
transactions have been fair and regular. 16 Applied to contracts, the presumption is in
favor of validity and regularity. In this case, the allegations of fraud was unsupported, and
the presumption stands that the contract Gaudencia entered into was fair and regular.

(q) That the ordinary course of business has been followed;

This is related to the presumption of regularity but letter (q) is broader because it appears to
cover the ordinary course of business of both public and private transactions.

(r) That there was a sufficient consideration for a contract;

Consideration is presumed to exist.

(s) That a negotiable instrument was given or indorsed for a sufficient consideration;

the provision of letter (r) and (s) is equivalent to the Civil code provision of 1354: Article
1354. Although the cause is not stated in the contract, it is presumed that it exists and is lawful,
unless the debtor proves the contrary.

(t) That an indorsement of a negotiable instrument was made before the instrument was
overdue and at the place where the instrument is dated;

WHAT IS THE EFFECT? It has the effect of presuming or making a presumption that the holder is
a holder in due course. Not necessarily for value but a holder in due course.

(u) That a writing is truly dated;

(v) That a letter duly directed and mailed was received in the regular course of the mail;

This is also the reason why we have to trust our Registry Mail Service. If you file a pleading by
ordinary mail service, the date of receipt is the date of filing. With respect to registered mail, the
date of mailing is the date of filing.

BARCELON V. CIR
August 7, 2006

when a mail matter is sent by registered mail, there exists a presumption, set
forth under Section 3(v), Rule 131 of the Rules of Court, that it was received in the
regular course of mail. The facts to be proved in order to raise this presumption are: (a)
that the letter was properly addressed with postage prepaid; and (b) that it was
mailed. While a mailed letter is deemed received by the addressee in the ordinary
course of mail, this is still merely a disputable presumption subject to controversion, and
a direct denial of the receipt thereof shifts the burden upon the party favored by the
presumption to prove that the mailed letter was indeed received by the addressee.

In the present case, petitioner denies receiving the assessment notice, and the
respondent was unable to present substantial evidence that such notice was, indeed,
mailed or sent by the respondent before the BIR’s right to assess had prescribed and that
said notice was received by the petitioner.

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(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 aircraft which is
missing, who has not been heard of for four years since the loss of the
vessel or aircraft;
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;

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.

PRESUMPTION OF DEATH
Summary:
1. When can a person be presumed dead for ALL purposes except succession? 7 years.
2. Exceptions:
a. the absentee shall not be considered dead for purposes of opening his
succession until the absence of 10 years.
b. If the absentee disappeared at the age of more than 75 years, an absence of 5
eyars shall be sufficient so that his succession may be opened.
c. A period of 4 years shall be sufficient for all purposes including for the opening of
his succession under the 4 circumstances of in danger of death.
d. A period of 2 years for contracting a subsequent marriage when a spouse was
absent for 2 years under the circumstances provided in 1,2,3 and 4.

Remember article 41 of the Civil code:

Article 41. For civil purposes, the foetus is considered born if it is alive at the
time it is completely delivered from the mother's womb. However, if the foetus
had an intra-uterine life of less than seven months, it is not deemed born if it dies
within twenty-four hours after its complete delivery from the maternal womb.

(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;

You do not presume the supernatural or the unnatural.

(z) That persons acting as copartners have entered into a contract of copartnership;

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PARTNERSHIP BY ESTOPPEL
Article 1825. When a person, by words spoken or written or by conduct, represents
himself, or consents to another representing him to anyone, as a partner in an existing
partnership or with one or more persons not actual partners, he is liable to any such
persons to whom such representation has been made (ESTOPPEL or admission by
silence)

CORPORATION BY ESTOPPEL

Sec. 21. Corporation by estoppel. - All persons who assume to act as a corporation
knowing it to be without authority to do so shall be liable as general partners for all debts,
liabilities and damages incurred or arising as a result thereof: Provided, however, That
when any such ostensible corporation is sued on any transaction entered by it as a
corporation or on any tort committed by it as such, it shall not be allowed to use as a
defense its lack of corporate personality.

One who assumes an obligation to an ostensible corporation as such, cannot resist

performance thereof on the ground that there was in fact no corporation.

CASES

LIM TONG LIM V. PHILIPPINE FISHING GEAR INC.

November 3, 1999

Thus, even if the ostensible corporate entity is proven to be legally nonexistent, a party
may be estopped from denying its corporate existence. "The reason behind this doctrine
is obvious — an unincorporated association has no personality and would be
incompetent to act and appropriate for itself the power and attributes of a corporation as
provided by law; it cannot create agents or confer authority on another to act in its behalf;
thus, those who act or purport to act as its representatives or agents do so without
authority and at their own risk. And as it is an elementary principle of law that a person
who acts as an agent without authority or without a principal is himself regarded as the
principal, possessed of all the right and subject to all the liabilities of a principal, a person
acting or purporting to act on behalf of a corporation which has no valid existence
assumes such privileges and obligations and becomes personally liable for contracts
entered into or for other acts performed as such agent.
The doctrine of corporation by estoppel may apply to the alleged corporation and to a
third party. In the first instance, an unincorporated association, which represented itself to
be a corporation, will be estopped from denying its corporate capacity in a suit against it
by a third person who relied in good faith on such representation. It cannot allege lack of
personality to be sued to evade its responsibility for a contract it entered into and by
virtue of which it received advantages and benefits.

On the other hand, a third party who, knowing an association to be unincorporated,

nonetheless treated it as a corporation and received benefits from it, may be barred from
denying its corporate existence in a suit brought against the alleged corporation. In such
case, all those who benefited from the transaction made by the ostensible corporation,
despite knowledge of its legal defects, may be held liable for contracts they impliedly
assented to or took advantage of.

CHRISTIAN CHILDREN’S FUND V. NLRC

June 30, 1989

As an organization lawfully created, the doctrine of corporation by estoppel will apply.

When a third person has entered into a contract with an association which represented

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itself to be a corporation, the association will be estopped from denying its

corporate capacity in a suit against it by such third person. It cannot allege lack of
capacity to be sued to evade responsibility on a contract it had entered into and by virtue
of which it received advantages and benefits

RONALDO LOZANO V. DE LOS SANTOS

June 19, 1997

The doctrine of corporation by estoppel[16] advanced by private respondent cannot

override jurisdictional requirements. Jurisdiction is fixed by law and is not subject to the
agreement of the parties.[17] It cannot be acquired through or waived, enlarged or
diminished by, any act or omission of the parties, neither can it be conferred by the
acquiescence of the court.

Corporation by estoppel is founded on principles of equity and is designed to

prevent injustice and unfairness. [19] It applies when persons assume to form a corporation
and exercise corporate functions and enter into business relations with third
persons. Where there is no third person involved and the conflict arises only among
those assuming the form of a corporation, who therefore know that it has not been
registered, there is no corporation by estoppel.

(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.

The same with the relationships without benefit of marriage.

(cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry
each other and who have acquired 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 manage 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.

relate with article 168 of the Family Code.

(ee) That a thing once proved to exist continues as long as is usual with things of that
nature;

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PRESUMPITON OF CONTINUITY OF EXISTENCE

(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.

Counterpart: article 43 of the Civil Code: Article 43. 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, it is presumed that they died at the same time and there shall be no transmission
of rights from one to the other.

SEC. 4. No presumption of legitimacy or illegitimacy. — There is no presumption of

legitimacy or illegitimacy of a child born after three hundred days following the dissolution
of the marriage or the separation of the spouses. Whoever alleges the legitimacy or
illegitimacy of such child must prove his allegation.

RULE 132
Presentation of Evidence

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A. EXAMINATION OF WITNESSES

SECTION 1. Examination to be done in open court. — The examination of witnesses

presented in a trial or hearing shall be done in open court, and under oath or affirmation.
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.

REQUIREMETNS
Three requriemetns:
1. That the examination be done in open court;
2. Under oath and affirmation and
3. Examination is to be answered by the witness and shall be given orally.

EXAMINAITON IN OPEN COURT

Affidavits are generally admissible as testimony and the affiant himself is not required in
court to testify. In these cases would actually say that it is hearsay. Any written testimony
in the form of written afficavit is hearsay because there is no opportutnity to cross-
examine. The rationale that examination be doen in open court is wrespect for ht accused
constitutional right of Confrontation or to meet the witness face to face with specific
reference to specific cases, to safeguard his right under section 1 and 2 of Rule 132

PEOPLE V. SERVANO
July 17, 2003
Vitug, Dissenting opinion
Section 1, Rule 132, of the Rules of Court provides that the “examination of
witnesses presented in a trial or hearing shall be done in open court, and under oath or
affirmation,” and that, 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
reason for the requirement obviously is to enable the court to judge the credibility of the
witness by the manner he testifies, by his intelligence, and by his appearance. [18] It is
unquestionably the safest and most satisfactory method of investigating facts, and
affords the greatest protection to the rights of the individual. [19] Section 1, Rule 133, of the
Rules of Court requires that in determining the preponderance or superior weight of
evidence on the issues involved, the court may, among other things, consider the
“witnesses’ manner of testifying” which can only be done if the witnesses give their
testimony orally and in open court.
A sworn statement is not a substitute for testimony given at and during the trial. The
demeanor of a witness at the stand and in responding to questions is a matter that can
prove to be invaluable in determining the credibility of the witness. The trial court must
have the full opportunity to observe the behavior of the witness in all the declarations that
can be significant to the case, its outcome and in decreeing judgment. It is not enough
that the affiant broadly confirms the contents of the extrajudicial statement. Wigmore, an
eminent authority on the rules on evidence, has said: “No one has ever doubted that
the former testimony of a witness cannot be used if the witness is still available for the
purpose of testifying at the present trial.” [20] Truly, it is well-entrenched that the findings of
the trial court bear great weight because of the vantage point it enjoys in scrutinizing the
deportment of the affiant-witness; each twitch of the witnesses’ muscle, the blink of the
eyes, the sweating palms, or the rise and fall of the voice, as well as the varied change in
behavior, could well spell the difference between truth and falsehood, and determine
whether the witness can be relied on or not.

EXCEPTIONS TO THE RULE

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Where there is no examination in open court: Rule in examination of Child

Witness (Section 8)  SEC. 8. 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.

WHAT ARE ALLOWED?

1. By live television (section 25)
2. Video-taped deposition (section 27)-- SEC. 27. Videotaped deposition.—(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.
3. SEC. 29. Admissibility of videotaped and audiotaped in-depth investigative or
disclosure interviews in child abuse cases.
4. When the child is dead or otherwise unavailable.

SEEMING EXCEPTION UNDER DEPOSITIONS

However, there seems to be an exception also under DEPOSITIONS.

SAN LUIS V. ROJAS

G.R. No. 159127

Depositions are chiefly a mode of discovery. They are intended as a means to compel
disclosure of facts resting in the knowledge of a party or other person which are relevant
in some suit or proceeding in court. Depositions, and the other modes of discovery
(interrogatories to parties; requests for admission by adverse party; production or
inspection of documents or things; physical and mental examination of persons) are
meant to enable a party to learn all the material and relevant facts, not only known to him
and his witnesses but also those known to the adverse party and the latter's own
witnesses. In fine, the object of discovery is to make it possible for all the parties to a
case to learn all the material and relevant facts, from whoever may have knowledge
thereof, to the end that their pleadings or motions may not suffer from inadequacy of
factual foundation, and all the relevant facts may be clearly and completely laid before
the Court, without omission or suppression.

Depositions are principally made available by law to the parties as a means of

informing themselves of all the relevant facts; they are not therefore generally meant to
be a substitute for the actual testimony in open court of a party or witness. The deponent
must as a rule be presented for oral examination in open court at the trial or hearing. This
is a requirement of the rules of evidence. Section 1, Rule 132 of the Rules of Court
provides:

"SECTION 1. Examination to be done in open court. — The examination of

witnesses presented in a trial or hearing shall be done in open court, and under
oath or affirmation. 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."

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Indeed, any deposition offered to prove the facts therein set out during a trial or hearing,
in lieu of the actual oral testimony of the deponent in open court, may be opposed and
excluded on the ground that it is hearsay: the party against whom it is offered has no
opportunity to cross-examine the deponent at the time that his testimony is offered. It
matters not that opportunity for cross-examination was afforded during the taking of the
deposition; for normally, the opportunity for cross-examination must be accorded a party
at the time that the testimonial evidence is actually presented against him during the trial
or hearing.

However, depositions may be used without the deponent being actually called to
the witness stand by the proponent, under certain conditions and for certain
limited purposes. These exceptional situations are governed by Section 4, Rule
24[24] of the Rules of Court.

SEC 4. Use of depositions. — At the trial or upon the hearing of a motion of an

interlocutory proceeding, any part or all of a deposition, so far as admissible under the
rules of evidence, may be used against any party who was present or represented at the
taking of the deposition or who had due notice thereof, in accordance with any of the
following provisions:

(a) Any deposition may be used by any party for the purpose of contradicting or
impeaching the testimony of deponent as a witness;

(b) The deposition of a party or of any one who at the time of taking the deposition
was an officer, director, or managing agent of a public or private corporation, partnership,
or association which is a party may be used by an adverse party for any purpose;

(c) The deposition of a witness, whether or not a party, may be used by any
party for any purpose if the court finds: (1) that the witness is dead; or (2) that the
witness if out of the province and at a greater distance than fifty [25] (50) kilometers
from the place of trial or hearing, or is out of the Philippines, unless it appears that
his absence was procured by the party offering the deposition; or (3) that the
witness is unable to attend to testify because of age, sickness, infirmity, or imprisonment;
or (4) that the party offering the deposition has been unable to procure the attendance of
the witness by subpoena; or (5) upon application and notice, that such exceptional
circumstances exist as to make it desirable, in the interest of justice and with due regard
to the importance of presenting the testimony of witnesses orally in open court, to allow
the deposition to be used;

(d) If only part of a deposition is offered in evidence by a party, the adverse party may
require him to introduce all of it which is relevant to the party introduced, and any party
may introduce any other parts.

The principle conceding admissibility to a deposition when the deponent is dead,

out of the Philippines, or otherwise unable to come to court to testify, is consistent with
another rule of evidence, found in Section 47, Rule 132 of the Rules of Court.

SEC. 47.Testimony or deposition at a former proceeding. — The testimony or

deposition of a witness deceased or unable to testify, given in a former case or
proceeding, judicial or administrative, involving the same parties and subject matter, may
be given in evidence against the adverse party who had the opportunity to cross-
examine him."

It is apparent then that the deposition of any person may be taken wherever he may be,
in the Philippines or abroad. If the party or witness is in the Philippines, his deposition

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"shall be taken before any judge, municipal or notary public" (Sec. 10, Rule
24, Rules of Court). If in a foreign state or country, the deposition "shall be taken: (a) on
notice before a secretary or embassy or legation, consul general, consul, vice-consul, or
consular agent of the Republic of the Philippines, or (b) before such person or officer as
may be appointed by commission or under letters rogatory" (Sec. 11, Rule 24).

Leave of court is not necessary where the deposition is to be taken before "a secretary or
embassy or legation, consul general, consul, vice-consul, or consular agent of the
Republic of the Philippines," and the defendant's answer has already been served (Sec.
1, Rule 24). After answer, whether the deposition-taking is to be accomplished within
the Philippines or outside, the law does not authorize or contemplate any intervention by
the court in the process, all that is required being that "reasonable notice" be given "in
writing to every other party to the action . . (stating) the time and place for taking the
deposition and the name and address of each person to be examined, if known, and if
the name is not known, a general description sufficient to identify him or the particular
class or group to which he belongs . . . "(Sec. 15, Rule 24). The court intervenes in the
process only if a party moves (1) to "enlarge or shorten the time" stated in the notice
(id.), or (2) "upon notice and for good cause shown," to prevent the deposition-taking, or
impose conditions therefor, e.g., that "certain matters shall not be inquired into" or that
the taking be "held with no one present except the parties to the action and their officers
or counsel," etc. (Sec. 16, Rule 24), or (3) to terminate the process on motion and upon a
showing that "it is being conducted in bad faith or in such manner as unreasonably to
annoy, embarrass, or oppress the deponent or party" (Sec 18, Rule 24).

2ND REQUIREMENT: OATH AND AFFIRMATION

This has been discussed under the qualifications of the witness

3rd REQUIREMENT: ANSWERS OF WITNESS MUST BE GIVEN ORALLY

EXCEPTIONS
1. WHERE THE WITNESS IS INCAPACITATED TO SPEAK OR IS DEAF-MUTE, in
which case, the testimony can be done in sign language or with the aid of an
interpreter or have the witness write the answer on a portable white board or may be
illustrated or demonstrated by pictures.
2. IF THE QUESTION CALLS FOR A DIFFERENT ANSWER SUCH AS WHEN
ANSWER CALLS FOR A SPECIFIC GESTURE OR ACTION—for example, gesture
when there is grave threat or when witness sis asked by the court to identify the
specific part of the body which has been injured by the act of the defendant.

APPLICATION UNDER THE SUMMARY PROCEDURE

 The Rules apply to Summary Procedure but in a modified form, since in Summary
Procedure the testimonies of the witnesses, (in civil cases) will be reduced into
writing in the form of affidavit. Hence, there is no direct, cross, re-cross or re-direct
examination.
 Affiant is not allowed in Summary Procedure to embody hearsay testimony.
 In criminal cases under Summary Procedure, the affidavits of the witnesses take the
place of the direct examination. There is cross examination of the same.
 The witness cannot also testify in narrative form. It has to be in a logical question and
answer format. For practical purposes, 1 question, 1 fact.

SEC. 2. Proceedings to be recorded.— The entire proceedings of a trial or hearing,

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including the questions propounded to a witness and his answers thereto, the
statements made by the judge or any of the parties, counsel, or witnesses with reference
to the case, shall be recorded by means of shorthand or stenotype or by other means of
recording found suitable by the court.

A transcript of the record of the proceedings made by the official stenographer,

stenotypist or recorder and certified as correct by him shall be deemed prima facie a
correct statement of such proceedings.

PRESUMPITON OF REGULAIRTY OF STENOGRAPHIC NOTES

“deemed prima facie correct statement of such proceedings”—this relates to

presumptions. The PRESUMPITON OF REGULAIRTY OF STENOGRAPHIC NOTES.
What is the effect of this presumption? The effect is that whatever is written in the TSN,
that whatever happened during the direct testimony or direct exam of that witness, mao
na iyang giingon. But the problem sometimes is that dili tanan makuha especially so if the
witness talks very fast.

What is your remedy if you were mistranscribed? FILE MOTION TO CORRECT TSN and
have it corrected. The problem is there are too many errors and the court might not pay
attention to your motion.

USE OF TRANSCRIPT AS EVIDENCE

Yes, it can be used as evidence since it is an official document. You can use it in the
same case or in another case. when you present it, do you have to bring with you the
stenographer to testify as to the notes he made? NO. it is covered under the exceptions
of the hearsay rule. It is one made as an official record made in the performance of the
duties a public officer.

FULLERO V. PEOPLE
September 12, 2007

Section 36, Rule 130 of the Revised Rules on Evidence, states that a witness
can testify only to those facts which he knows of or comes from his personal knowledge,
that is, which are derived from his perception. A witness, therefore, may not testify as to
what he merely learned from others either because he was told, or he read or heard the
same. Such testimony is considered hearsay and may not be received as proof of the
truth of what he has learned.[57] This is known as the hearsay rule.

The law, however, provides for specific exceptions to the hearsay rule. One of
the exceptions is the entries in official records made in the performance of duty by a
public officer.[58] In other words, official entries are admissible in evidence regardless of
whether the officer or person who made them was presented and testified in court, since
these entries are considered prima facieevidence of the facts stated therein. Other
recognized reasons for this exception are necessity and trustworthiness. The necessity
consists in the inconvenience and difficulty of requiring the official’s attendance as a
witness to testify to innumerable transactions in the course of his duty. This will also
unduly hamper public business. The trustworthiness consists in the presumption of
regularity of performance of official duty by a public officer.

SEC. 3. Rights and obligations of a witness. — A witness must answer questions, although
his answer may tend to establish a claim against him. However, it is the right of a witness:
1. To be protected from irrelevant, improper, or insulting questions, and from harsh or
insulting demeanor;

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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.

RIGHT AGAINST SELF-INCRIMINATION

“A witness “must” answer questions even if it will tend to establish a claim against you.” It
is a positive command. How is this reconciled with the right against self-incrimination? If a
question calls for an incriminatory answer form the witness, it may be objected to. This
rule applies to criminal cases but NOT in civil cases. Hence, when a question tends to
establish a civil claim against he witness, he cannot refuse to answer the question. But if
it’s a criminal incrimination, we will go back to that in number 4. But that word “claim”
refers to civil cases.

CASE: Supposing a witness refused to answer because he feels the question is

incriminatory. However, the court directs the witness to give an answer and the witness
obeys the order of the court. Later on the answer turns out to be incriminatory and later
on the witness was indicted for the commission of this offense, can his testimony in court
be given in evidence against him in the form of an admission?
ANSWER: NO, because the witness has initially objected and he gave the answer only in
compliance with an order of the court. According to some decisions that could be treated
as a compelled testimony given under duress and therefore could not be used against
the witness.

To be protected from irrelevant, improper, or insulting questions, and from harsh or

insulting demeanor;
This may come from the protection needed from the conduct of parties, lawyers and even
the judge. This safeguard appears in a greater form when you look at the examination of
child witness.

Not to be detained longer than the interests of justice require;

There are a lot of things that had been devised to combat that. an example would be the
need to sate in the pre-trial brief how long will the witness will take the witness stand. This
does not mean to be imprisoned. This merely refers to that restriction as to time when
you are testifying as a witness in court. Generally, this is also a safeguard against
repetitive questions where point has already been made. What can be your objections?
(1) objection due to repetitive questions and the witness is detained longer than the
interest of justice require and (2) the question had already been answered.

Not to be examined except only as to matters pertinent to the issue;

When the witness is examined on matters not pertinent toteh issue, the objection can be
raised on 2 grounds:
1. The specific ground under this provision: not to be examined on mattes nto
pertitnet to the issue or
2. To the general ground that the question is either immaterial or irrelevant to the
fact in issue.

Not to give an answer which will tend to subject him to a penalty for an offense unless
otherwise provided by law; or
This is now the safeguard against SELF-INCRIMINATION. The first paragraph (opening
paragraph) is the one tht would compel you to answer question even if it may establish a
claim against you and this provision is the one that is counterpart in the CRIMINAL
CASES. The exception here also has exceptions.

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EXCEPTIONS TO RULE AGAINST SELF-INCRIMINATION

1. Use Immunity- the witness will still be indicted for the commission of an offense, but
the statements given by the witness cannot be used against him. He is not
immunized from prosecution.
2. Transactional Immunity- There is absolute immunity, both to prosecution and use of
the statements given by the witness.

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
An example would be the case of declaration of nullity of marriage d/t psychological
incapacity. Sir shares about his case of asking about ‘sexual promiscuity’ of the party.

Exceptions under this provision:

1. If it be the very fact at issue or
2. To a fact from which the fact in issue would be presumed or
3. To the fact of his previous final conviction for an offense

SEC. 4. Order in the examination of an individual witness.— The order in which an

individual witness may be examined is as follows:
(a) Direct examination by the proponent;
(b) Cross-examination by the opponent;
(c) Re-direct examination by the proponent;
(d) Re-cross-examination by the opponent.
DEFINITION OF TERMS
 proponent-he is the one who presents you so you could testify
 Opponent—one who will rebut and say that you are not a credible witness

SEC. 5. Direct examination.— Direct examination is the examination-in-chief of a witness

by the party presenting him on the facts relevant to the issue.

DIRECT EXAMIATNION

It is the Examination-in-chief of a witness by the party presenting him on the facts

relevant to the issue.
‘examination in chief”—there is no other way of examining a witness but by direct
exmiantion.
‘party presenting him”—the one who will conduct the examination
About what?—about facts relevant to the issue. Otherwise, that testimony may be
objected to on the ground that it is irrelevant.

SEC. 6. Cross-examination; its purpose and extent.— Upon the termination of the direct
examination, the witness may be cross-examined by the adverse party as to any matters
stated in the direct examination, or connected therewith, with sufficient fullness and
freedom to test his accuracy and truthfulness and freedom from interest or bias, or the
reverse, and to elicit all important facts bearing upon the issue.

CROSS-EXAMINATION
- When conducted: upon termination of direct examination
- Matters covered: witness may be cross-examined by the adverse party as to –
= Any matters stated in the direct examination, or connected therewith, with sufficient

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fullness and freedom to test his accuracy and truthfulness and freedom from
interest or bias, or the reverse, and
= To elicit all important facts bearing upon the issue.
Implied waiver of cross-examination – The party was given the opportunity Dela Paz vs.
IAC (1987)

TWO RULES ON LIMITS OF CROSS EXAMINATION

1. English Rule- where a witness is called to testify to a particular fact, he
becomes a witness for all purposes and may be fully cross-examined upon all
matters material to the issue, the examination not being confined to the matters
inquired about in the direct examination.
2. American Rule- restricts cross-examination to facts and circumstances which
are connected with the matters that have been stated in the direct examination of
the witness. (applies when witness is the accused in a criminal case; and when
witness is hostile or adverse party witness)

NOTE: Section 6 is actually the provision that gives examiners sufficient leeway in
examining witnesses because for as long as it can be reasonably related to the fat in
issue or in any one of those facts connected to it. It does not have to be limited to what is
stated in the direct examination.

NATURE OF THE RIGHT TO CROSS-EXAMINE

DELA PAZ V. IAC

G.R. No. 71537 September 17, 1987

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).
xxx xxx xxx

The right of a party to cross-examine the witness of his adversary in invaluable

as it is inviolable in civil cases, no less than the right of the accused in criminal
cases. The express recognition of such right of the accused in the Constitution
does not render the right thereto of parties in civil cases less constitutionally
based, for it is an indispensable part of the due process guaranteed by the
fundamental law. ... Until such cross-examination has been finished, the
testimony of the witness cannot be considered as complete and may not,
therefore, be allowed to form part of the evidence to be considered by the court
in deciding the case. (Bacrach Motor Co., Inc., v. Court of Industrial Relations, 86
SCRA 27 citing Savory Luncheonette v. Lakas ng Manggagawang Pilipino, et
al., supra, Ortigas, Jr. vs. Lufthansa German Airlines, 64 SCRA 610)

But we have also ruled that it is not an absolute right which a party can demand
at all times. This Court has stated that:
xxx xxx xxx
the right is a personal one which may be waived expressly or impliedly by
conduct amounting to a renunciation of the right of cross-examination. Thus,
where a party has had the opportunity to cross-examine a witness but failed to
avail himself of it, he necessarily forfeits the right to cross-examine and the
testimony given on direct examination of the witness will be received or allowed
to remain in the record.
The conduct of a party which may be construed as an implied waiver of the right
to cross-examine may take various forms. But the common basic principle

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underlying the application of the rule on implied waiver is that the party was given
the opportunity to confront and cross-examine an opposing witness but failed to
take advantage of it for reasons attributable to himself alone.
xxx xxx xxx
The case of the herein petitioner, Savory Luncheonette, easily falls within the
confines of the jurisprudence given above. Private respondents through their
counsel, Atty. Amante, were given not only one but five opportunities to cross-
examine the witness, Atty. Morabe, but despite the warnings and admonitions of
respondent court for Atty. Amante to conduct the cross-examination or else it will
be deemed waived, and despite the readiness, willingness and insistence of the
witness that he be cross-examined, said counsel by his repeated absence and/or
unpreparedness failed to do so until death sealed the witness' lips forever. By
such repeated absence and lack of preparation on the part of the counsel of
private respondents, the latter lost their right to examine the witness, Atty.
Morabe, and they alone must suffer the consequences. The mere fact that the
witness died after giving his direct testimony is no ground in itself for excluding
his testimony from the record so long as the adverse party was afforded an
adequate opportunity for cross-examination but through fault of his own failed to
cross-examine the witness. (Savory Luncheonette v. Lakas ng Manggagawang
Pilipino,supra; at pp. 263-267)

EFFECT OF LACK OF CROSS-EXAMINAITON

There was direct examination but there was no cross examination The remedy is to
STRIKE OFF the testimony of the witness. Why? Because it is hearsay . A motion to
strike is an order issued by the court to order the removal of all or part of the opposing
party’s pleading or testimony in court. A motion to strike is to be used to request
elimination of all or part of a trial witness’ testimony.

INSTANCES WHERE TESTIMONY STILL ADMISSIBLE DESPITE LACK OF CROSS-

EXAMINAITON

Exceptions:
1. If cross-examination is made or
2. Waiver, express or implied –for example, you say in open court “we waive our
right to cross-examine”. Then that is express waiver.

DELA PAZ V. IAC

G.R. No. 71537 September 17, 1987

But we have also ruled that it is not an absolute right which a party can
demand at all times. This Court has stated that:
xxx xxx xxx
the right is a personal one which may be waived expressly or impliedly
by conduct amounting to a renunciation of the right of cross-examination.
Thus, where a party has had the opportunity to cross-examine a witness
but failed to avail himself of it, he necessarily forfeits the right to cross-
examine and the testimony given on direct examination of the witness
will be received or allowed to remain in the record.

The conduct of a party which may be construed as an implied waiver of

the right to cross-examine may take various forms. But the common
basic principle underlying the application of the rule on implied waiver is
that the party was given the opportunity to confront and cross-examine
an opposing witness but failed to take advantage of it for reasons
attributable to himself alone.

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xxx xxx xxx

The case of the herein petitioner, Savory Luncheonette, easily falls within
the confines of the jurisprudence given above. Private respondents
through their counsel, Atty. Amante, were given not only one but
five opportunities to cross-examine the witness, Atty. Morabe, but despite
the warnings and admonitions of respondent court for Atty. Amante to
conduct the cross-examination or else it will be deemed waived, and
despite the readiness, willingness and insistence of the witness that he
be cross-examined, said counsel by his repeated absence and/or
unpreparedness failed to do so until death sealed the witness' lips
forever. By such repeated absence and lack of preparation on the part of
the counsel of private respondents, the latter lost their right to examine
the witness, Atty. Morabe, and they alone must suffer the consequences.
The mere fact that the witness died after giving his direct testimony is no
ground in itself for excluding his testimony from the record so long as the
adverse party was afforded an adequate opportunity for cross-
examination but through fault of his own failed to cross-examine the
witness. (Savory Luncheonette v. Lakas ng Manggagawang
Pilipino,supra; at pp. 263-267)

In the case at bar, the petitioners' failure to cross-examine Loreto was

through no fault of the respondents. As can be gleaned from the record,
Loreto was available for cross-examination from the time she finished
her direct testimony on March 12, 1984 to November 7, 1984, the last
scheduled hearing of the case before her death on December 1, 1984.
The petitioners not only kept on postponing the cross-examination but at
times failed to appear during scheduled hearings. The postponement of
the trial on May 23, 1984 to a later date duet o the correction of the
stenographic notes of Loreto's testimony may be justified, but the same
cannot be said for the subsequent posponements requested by the
petitioners. The scheduled trials before November 7, 1984, did not push
through, because of the petitioners' fault. It may also be recalled that at
the scheduled hearing on September 14, 1984 neither the petitioners nor
their counsel appeared leading to the presentation of evidence ex parte.
And also during the scheduled hearing on September 18, 1984, when
the petitioners were allowed to cross-examine Loreto despite the fact
that the case was already deemed submitted for decision, the petitioners
again failed to appear.
Under these circumstances, we rule that the petitioners had waived their
right to cross-examine Loreto. Through their own fault, they lost their
right to cross-examine Loreto. Her testimony stands.

FAILURE TO CROSS-EXAMINE DUE TO DEATH OR INCAPACITY OF WITNESS

NOTE: When we talk about waiver, it usually talks about a cause that is attributable to a
party. The opponent or the adversary is not dong the cross-examination. Now what if the
cause for the failure to cross=examine is not because either of the collision or default or
the adverse party. for example, FORTUITOUS EVENT such as earthquake and the
witness died? What happens when failure to cross-examine was due to the subsequent
incapacity or death of the witness?

To my mind, it depends upon the reason why there was failure to conduct subsequent
cross-examination after the direct examination.

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1. If cross-examination was deferred at the instance of the PROPONENT, or

the witness he presents then the testimony on direct examination should be
stricken because the failure to cross-examine was not due to causes attributable to
the opponent.
2. If the deferment of the cross examination was due to the instance of the COURT for
i.e. lack of material time the testimony on direct examination of the witness must
again be stricken because the cause for failure to cross-examine was due to a cause
not attributable to the opponent.
3. However, if the deferment was due to a cause attributable to OPPONENT or the
party who is supposed to cross-examine, then the testimony on direct examination
would stand and may be used by the court in consideration of the controversy and
susceptible to any motion to strike. In this case, the conduct of the opponent himself
amounts to a waiver.

TRICKS OF THE TRADE: It is possible that the case will drag on for a long time. The judge may
get frustrated sometimes due to several postponements. What if during the court hearing, you are
not prepared (referring to counsel) then the court will insist to continue with the direct examination
and cross-examination –you tell the judge that you move on with the direct examination but
DEFER the cross-examination and take the risk if subsequently, cross-examination won’t be
possible due to the death or incapacity of the witness to testify.

WHAT WILL NOW BE THE BASIS OF YOUR CROSS-EXAMINATION? The basis for the cross-
examination will be the TRANSCRIPT of Stenographic notes. Most especially If the reasons for
deferment are valid, you have time to think about the questions to ask by just taking a look at the
TSN. But remember, when you cause the deferment of the cross-examination at a later date, the
lawyer of the other party will also be able to take a look at the case and of your possible
objections, questions.

DOCTRINE OF INCOMPLETE TESTIMONY: When cross examination cannot be done or

completed due to causes attributable to the party who offered the witness, the incomplete
testimony is rendered incompetent and should be stricken from the record. Except: where the
prosecution witness was extensively cross-examined on the material points and thereafter failed
to appear and cannot be produced despite a warrant for his arrest. (People v. GOrospe, GR
51513, May 15, 1984)

Section 7. Re-direct examination; its purpose and extent. — After the cross-examination of
the witness has been concluded, he may be re-examined by the party calling him, to
explain or supplement his answers given during the cross-examination. On re-direct-
examination, questions on matters not dealt with during the cross-examination, may be
allowed by the court in its discretion.

My question is unsa ni sya, English rule or American rule? Is it a rule that gives leeway to the
examiner or does it limit? If we look at Section7, it appears that there’s a limit. Why? Because the
purpose of redirect is for explaining or supplementing answers given during the cross-
examination. So if you asked a question that does not relate whatsoever to the cross-examination
of the opponent, it is not covered. It can be objected on the ground that is it not covered by the
cross examination.

However, if you look at the last sentence, On re-direct-examination, questions on matters not
dealt with during the cross-examination, may be allowed by the court in its discretion.

So mura gihapon ug walay limit kay ang court still has the discretion. To my mind, dapat wala na
ng last sentence. Why? Because if you are a lawyer what you need to remember is, tanan facts
should have been stated already in the direct charge. You already have a chance. So upon cross
examination, nakahunahuna ka, tama naa ko nalimtan! You cannot do that, dapat during direct

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examination. That’s the reason the law limits it to explaining or supplementing

answers given during the cross examination. But the intention of the law is it may be allowed
upon discretion of the court.

Section 8. Re-cross-examination. — Upon the conclusion of the re-direct examination, the

adverse party may re-cross-examine the witness on matters stated in his re-direct
examination, and also on such other matters as may be allowed by the court in its
discretion.

LIMITAITON

There’s a limitation again. You can only recross on matters stated in the redirect and also
on matters allowed by the court in its discretion. Again there’s that leeway. But to my
mind, that’s understandable under Section8 because again if you’re in recross-
examination, you’re the one given sufficient fullness on the credibility of the witness. Ok
lang ni siya. But section7 to my mind is not ok. You are only given one chance to get all
the facts important to the case and that is with respect to direct examination. That is just
how I see it; I’m not saying that that is the rule.

Section 9. Recalling 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.

RECALLING WITNESS

So di ka pwde magpatawag ug witness ug balik kay nahuman naman na siya, na

discharge na siya. After the redirect examination is finished, the judge will say the witness
is excused. What do you mean by that? The witness is discharged. He can go back lying.
He cannot be under oath forever. As a general rule, di na siya tawagon pag-usab as
witness. Of course the proponent has the duty to enter all the facts relevant to his case at
the time the witness is called. But what if naa jud kulang? Well, section 9 can apply to
that. The witness may be recalled but only with leave of court. Why? Because not
requiring leave of court before a witness can be recalled will actually be repugnant to the
right not to be detained longer than the interest of justice. The court must be given the
opportunity determine first whether or not the recall is unnecessary or merely fictitious.

Remember when you do that you are calling him as your witness, who is the proponent?
The original opponent. What do you call that witness? A hostile witness.

LEADING QUESTION

During direct examination you are not allowed to ask leading questions. In redirect
examination also you are not allowed to ask leading questions. Unsa manang leading
question? It is a question which already projects the answer desired by the lawyer.

Example: so you were there at the time of the commission of the offense? Answerable by
yes or no. You are already suggesting. The correct question would be: where were you at
the time the offense was committed? So W (who, what when, where, why) questions and
how.

But if the witness is already considered hostile or if you are calling the adverse party as
your witness, you are allowed to ask leading questions even during direct examination.

PEOPLE V. RIVERA
AUGUST 16, 1991

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But obviously that discretion may not be exercised in a vacuum, as it were, entirely,
isolated from a particular set of attendant circumstances. The discretion to recall a
witness is not properly invoked or exercisable by an applicant's mere general statement
that there is a need to recall a witness "in the interest of justice," or "in order to afford a
party full opportunity to present his case," or that, as here, "there seems to be many
points and questions that should have been asked" in the earlier interrogation. To regard
expressed generalities such as these as sufficient ground for recall of witnesses would
make the recall of witness no longer discretionary but ministerial. Something more than
the bare assertion of the need to propound additional questions is essential before the
Court's discretion may rightfully be exercised to grant or deny recall. There must be a
satisfactory showing of some concrete, substantial ground for the recall. There must be
a satisfactory showing on the movant's part, for instance, that particularly
identified material points were not covered in the cross-examination, or that
particularly described vital documents were not presented to the witness whose
recall is prayed for, or that the cross-examination was conducted in so inept a
manner as to result in a virtual absence thereof. Absent such particulars, to repeat,
there would be no foundation for a trial court to authorize the recall of any witness.

WHO CAN ASK QUESTIONS DURING TRIAL

Who can ask questions during trial?
1. Proponent – direct and redirect examination
2. Opponent – cross and recross examination
3. The judge. Only the judge, ayaw na apila ng mga sheriff etc.

SCOPE OF JUDGE’S PARTICIPATION AT TRIAL:

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 a 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). Of course, the judge cannot curtail counsel's right to interrogate
witnesses. (People v. Bedia, 83 Phil. 909)

There is no prohibition against the judge conducting the examination of the witness. The
counsel may object to the questions propounded by the judge.

If the court has the power to ask questions to the witness, the court also has the power to
stop further evidence. Under rule 133 section 6

Section 6. 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.

2 powers of the judge that should be exercise with caution:

1. Interrogating witness
2. To stop further evidence

POWER OF COURT TO STOP FURTHER EVIDENCE

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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. When the evidence already presented
on one point is sufficient and the party merely seeks to present cumulative evidence
which cannot produce additional persuasive effect or that he is not sure of what the other
witnesses would testify, the court may in its sound discretion stop the introduction of such
further evidence. (People v. Reyes, et al., 133 SCRA 51)

ROLE OF ATTORNEY DURING PRESENTATION OF EVIDENCE

An attorney has a dual role to perform relative to proving the truth respecting a matter of
fact.

He must ensure that all evidence supporting the material allegations, whether raised in
the pleadings or not are admitted by the court. His other role is to block the admission of
evidence supporting his opponents' material allegations whether raised in the pleadings
or not.

In order to perform this dual role the attorney should ensure that the evidence he offers
are admissible in accordance with the Rules of Court and those of his opponent are
properly objected to for being inadmissible

Section 10. Leading and misleading questions. — A question which suggests to the
witness the answer which the examining party desires is a leading question. It is not
allowed, except:
(a) On cross examination;
(b) On preliminary matters;
(c) When there is a difficulty is 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.
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. It is not allowed. (5a, 6a, and
8a)

MISLEADING QUESTIONS

Examples of misleading questions (asked by the fiscal to his own witness):

 You are related to the accused, correct?
 You are the cousin of the accused, correct?

Proper question would be answerable by a specific fact, not merely by a yes or no. A
good way of determining whether or not a question is leading is what is the foundation of
the question, is it who, what when, where, why, how. Pag-ingun ana, that’s not leading.
But if the answer is limited to a yes or no, that is a leading question.

WHEN LEADING QUESTIONS ARE ALLOWED

So when are leading questions allowed? The exceptions are 5:

1. On CROSS EXAMINATION – if the witness called by the party is hostile, leading
questions can be asked

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2. On PRELIMINARY MATTERS – this is allowed to hasten the proceedings and to

zeroed in immediately to a particular point or time of a witness testimony
3. When there is a DIFFICULTY IS 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 - WITH RESPECT TO A
SPECIAL WITNESS (e.g., ignorant, tender years, deaf-mute). Recall that the
court may allow leading questions at any stage in the rule of examination of a
child witness in the further interest of justice.
4. Of an UNWILLING OR HOSTILE WITNESS – relate sec10 1 st par xxx Except
with respect to witnesses referred to in paragraphs (d) and (e) of Section 10, the
party producing a witness is not allowed to impeach his credibility.
GR: You are not allowed to impeach your won witness
XPN : hostile or unwilling witness
5. 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.

In leading question, in effect, it is the lawyer who is testifying.

SUMMARY
Leading questions
 Questions that suggest to the witness the answer, which the examining party desires,
are leading questions.
 General Rule: Not allowed
 Exceptions:
1. On cross examination;
2. On preliminary matters;
3. When there is a difficulty is 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;
4. Of an unwilling or hostile witness; or
o A witness may be considered as unwilling or hostile only if so declared by the
court upon adequate showing of his -
 adverse interest,
 unjustified reluctance to testify, or
 his having misled the party into calling him to the witness stand.
1. 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.

 When the answer is derived from a leading question the evidence has no
probative value at all even if there is no objection to a leading question.

Misleading questions
1 Those that assume as true a fact not yet testified to by the witness, or contrary to that
which he has previously stated.
2 Not allowed.

Section 11. Impeachment of adverse party's witness. — A witness may be impeached by

the party against whom he was called, by contradictory evidence, by evidence that his
general reputation for truth, honestly, or integrity is bad, or by evidence that he has made
at other times statements inconsistent with his present, testimony, but not by evidence of
particular wrongful acts, except that it may be shown by the examination of the witness, or
the record of the judgment, that he has been convicted of an offense.

RATIONALE

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Why do you think that a witness should always answer to conviction or to the fact of his
conviction? Because anyway it is of public record. The rule to remember here is
impeachment of a witness can be done only by the opponent. It cannot be done by a
party producing the witness or the proponent. Why? Because again of section 12 that a
party cannot impeach his own witness.

IMPEACHMENT

How do we define impeachment? Impeachment of a witness is the process of

challenging or calling into question the credibility or intention of an individual testifying in
court.

IMPEACHMENT; HOW MADE

So how do you make impeachment?

1. By CONTRADICTORY EVIDENCE
 This involves the presentation of evidence which is the exact opposite of what
the witness said. In effect the evidence is destroying the credibility of the witness
by essentially telling the court that he cannot be believed and that there is
evidence to the contrary of what he is saying. So he is saying na wala syay
utang, ipakita nako nga naa syay utang. Ipakita nako ang promissory note,
contract of loan.

2. By EVIDENCE THAT HIS GENERAL REPUTATION FOR TRUTH, HONESTY OR

INTEGRITY IS BAD.
 By means of character evidence. Evidence of particular wrongful acts is not
allowed except that it may be shown by the examination of the witness, or the
record of the judgment, that he has been convicted of an offense.
 The opponent must show that the witness generally has a reputation for
dishonesty. However evidence of a particular wrongful act is not allowed. It
means that the specific examples of character are intransmissible. In other
words, you are not allowed to say na tong grade 1 sa nangopya siya, tong grade
2 nangopya na pod, particular wrongful act.

 WHERE CHARACTER EVIDENCE MAY BE ALLOWED:

a. if it can be shown by the examination of a witness or the records of the
judgment that he has been convicted
b. the witness by his own testimony admits the particular act

HOW DO YOU DO IMPEACHMENT BY CHARACTER EVIDENCE? You are actually

presenting witnesses who can attest to the witness character. Si A ang witness,
karon gipresent sa opponent si B nga nag-ingon nga bakakon si A. So si B who
impeached the testimony of A may also be impeached by another witness C or even
by A himself as well.

let’s relate this to sec3 par5 xxx (5) Not to give an answer which will tend to degrade
his reputation, unless it to be 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.xxx So exception in section11 also appears in section 3 par
5. So you cannot hide from a final conviction.

3. By EVIDENCE THAT HE HAS MADE IN SOME OTHER TIMES STATEMENTS

INCONSISTENT WITH HIS TESTIMONY.

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- IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS It means here

that the witness made 2 or more conflicting statements. By exposing his
conflicting statements, you reduce his credibility. Pinaka grabe niini if the
conflicting statements were both made in a judicial proceeding. So definitely, you
are lying at one time. You have cause of action for perjury.
- A prior inconsistent statement may not only come from testimony in the court but
also from modes of discovery (deposition, request for admission) or even from
interviews, affidavits, testimonies in another case, and official interrogations.
Those may be sources of prior inconsistent statements.
- Know that inconsistent statements other than the one made in open courts are
technically hearsay. However, despite the fact that they are technically hearsay,
they are admissible because they are not offered to prove the proof of prior
statement; you’re only proving them to impeach the witness. You do not prove
the tone of the prior inconsistent statement but you only want to prove the fact
that this prior inconsistent statement was uttered. Tenor of declarations only.
- By way of exception only to the hearsay rule. Relate this to section47 of hearsay
rule xxx Section 47. Testimony or deposition at a former proceeding. — The
testimony or deposition of a witness deceased or unable to testify, given in a
former case or proceeding, judicial or administrative, involving the same parties
and subject matter, may be given in evidence against the adverse party who had
the opportunity to cross-examine him.
- What are the other exceptions?
*WHEN A PRIOR INCONSISTENT STATEMENT WAS OFFERED TO PROVE
AN ADMISSION

How is impeachment made?

Section 13. How witness impeached by evidence of inconsistent statements. — Before a

witness can be impeached by evidence that he has made at other times statements
inconsistent with his present testimony, the statements must be related to him, with the
circumstances of the times and places and the persons present, and he must be asked
whether he made such statements, and if so, allowed to explain them. If the statements be
in writing they must be shown to the witness before any question is put to him concerning
them

LAYING THE PREDICATE.

So the proper procedure is, I’d like to show you an affidavit. Kindly look at the affidavit.
Do you affirm that the affidavit is yours? Yes I affirm. So compare that affidavit to what
was being said by the witness. Dili pwde nga, diba niingon ka sa una nga ingon-ani,
ngano lain naman lagi karon? Dili na tinuod oie, wala jud ko nag-ingon ana. Unsa man
diay ning nasa affidavit oh! Dili na pwede, binata na! 1.) You have to give him a copy of
the written affidavit first before you proceed to confront the witness. And then, 2.)
confronting the witness with prior inconsistent statements with the circumstances, which
means the time, place, persons under which the circumstances were made. And 3.)
asking him whether or not he made such statement and 4.) you have to give him a
chance to explain.

This is known as laying the predicate. How is this different from laying the foundation
rule? Can you recall best evidence rule? In admitting photocopies, you have to lay down
the foundation/basis of that document. That is laying the foundation rule. In laying the
predicate, you have previously laid the foundation. Before a witness can be impeached
by evidence that he has made at other times statements inconsistent with his present
testimony: the statements must be related to him, with the circumstances of the times
and places and the persons present, and he must be asked whether he made such

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statements, and if so, be allowed to explain them; if the statements be in

writing they must be shown to the witness before any question is put to him concerning
them (laying the predicate).

Laying the foundation or laying the basis- refers to a situation where an evidence
which is otherwise incompetent will be introduced in evidence because it falls under the
exceptions to that rule on exclusion.

Example: If a party desires to introduce secondary or substitutionary evidence he must

first lay the foundation or lay the basis. He must first proved that there was a writing duly
executed and that the original has been lost or destroyed.

Impeachment means to destroy, to call in to question the credibility of the witness. What’s
the opposite of impeachment? Bolstering.

*I emailed to your officer in charge notes authentication and proof of documents…

If a witness maybe impeached by producing prior inconsistent statements, can you do the
opposite? Can you produce prior consistent statements to bolster the credibility of a
witness? Pwde na siya. A prior consistent statement can be produced as evidence if and
only if the credibility of the witness has already been attacked.

GR: It cannot be produced that at previous times his testimony was inconsistent. Prior
instance is not the same as the case as now.
Exception: Only for purposes of bolstering after the credibility of the witness has been
impeached.

Other modes of impeachment not found under the Rules: (very limited under the
rules are modes of impeachment of witness, but jurisprudence and for practical trial
purposes, there are other means to impeach a witness)
1. Prove the bias or the opponent will prove that the witness bias is of one party or
in favour of the other witness. Therefore in this case, there is a personal interest
in the outcome of the case. A classic example is a witness for the prosecution
who is awaiting sentencing is likely to be pro-prosecution. In the US, there is a
sentencing hearing, after conviction. So the prosecution will have the opportunity
to contest before the judge regarding the amount of time it believes the accused
should go to jail. Accused can pray for leniency; either suspend the sentence or
imposed a minimum of the penalty proscribed for the offense.
2. Prove inconsistency. To answer a particular question or give testimony regarding
a testament of fact. But in Philippine law there is a presumption of consistency.
3. Evidence of contradiction. This occurs when witness is induced to contradict his
testimony during the present proceeding. This is different from inconsistent
statement. Inconsistent statement includes statements made out of court or in
private proceedings contradiction to the witness says in 2 different things to what
he is testifying. This can be done during cross-examination or during testimony of
a witness, procedural.

Section 12. Party may not impeach his own witness. — Except with respect to witnesses
referred to in paragraphs (d) and (e) of Section 10, the party producing a witness is not
allowed to impeach his credibility.

A witness may be considered as unwilling or hostile only if so declared by the court upon
adequate showing of his adverse interest, unjustified reluctance to testify, or his having
misled the party into calling him to the witness stand.

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The unwilling or hostile witness so declared, or the witness who is an adverse

party, may be impeached by the party presenting him in all respects as if he had been
called by the adverse party, except by evidence of his bad character. He may also be
impeached and cross-examined by the adverse party, but such cross-examination must
only be on the subject matter of his examination-in-chief. (6a, 7a)

IMPEACHMENT OF OWN WITNESS

This rule is actually based on the theory that a person who produces a witness vouches
for him as being worthy of credit and that a direct attack on the veracity of the witness
would enable the party to destroy the witness if he spoke against him and to make him a
good witness and he spoke for him with the means of destroying his credit if he spoke
against him. Ikaw ang nagpresent meaning you believe that what the witness testify will
be favourable to your cause but later on you found out that he said something in
contradiction with the facts you want to prove. You are not allowed to impeach him
because in the first place you vouched that this witness will testify.

It’s your fault actually that the witness did not say everything that you wanted to say.
Remember a rule in trial technique; never asked a question from the witness that you do
not previously know the answer. You can do mock examinations. There’s really no rule in
prohibiting you from briefing the witness or rehearsing the witness for testimony, what is
prohibited is coaching the witness or trying to change what he is about to say. Ayaw
pagpatakang pangutana na dili ka sigurado sa iyang itubag. When you bring a witness to
the witness stand, you are not allowed to impeach his credibility.

WHAT WOULD BE THE OCCASION WHEN YOU FEEL THE NEED TO IMPEACH
WITNESS CREDIBILITY? If the testimony of your own witness is not favourable to you.
Why is it that you’re allowed to impeach an unwilling /hostile witness or the adverse
party’s witness?

Because you do not vouched to what he is going to say. You are of course to expect that
what the unwilling/hostile witness of adverse party’s witness to say is something that is
against your cause of action or your defence. It stands to reason that the rule of a party
not being allowed to impeach his own witness does not apply to an unwilling/hostile
witness or adverse party’s witness.

GR: party producing a witness is not allowed to impeach the latter’s credibility.
XPN: unwilling or hostile witness or adverse party’s witness

When can a witness be considered as unwilling or hostile? There must be a declaration

of the court upon adequate showing of 3 matters:
1. adverse interest
2. unjustified reluctance to testify or
3. planted witnesses.

You can move for the court to declare the witness as unwilling or hostile.

EFFECTS OF THE DECLARATION THAT WITNESS IS UNWILLING OR HOSTILE (3 EFFECTS

ACCORDING TO DEAN INIGO)
1. Leading questions can now be asked in direct examinations. Why? Because the
witness there is in all respects, a witness of the adverse party. The impeachment
may be made by the party presenting the hostile or unwilling witness in all
respects as if he had been called by the adverse party.
2. The hostile witness may also be impeached and cross examined by the adverse
party, however, because technically speaking that witness is the witness of the

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adverse party. The cross examination must only be on the subject matter of the
examination in chief. And that is an application of the american rule.
3. Cross examination by his own lawyer will be governed by the rules on direct
examination, which means that even in cross examination, a leading question
can be asked.

So baliktad you’re the one calling an adverse party or an unwilling or hostile witness, your
manner of examination will be governed by the Rules on Cross Examination. But upon
cross examination of the adverse party, the rule will be covered by what you can do
during the direct examination. Another effect would be, if a lawyer calls an unwilling or
hostile witness or an adverse party as a witness, ka kinsa syang witness? Would he still
be the witness of the adverse party or is he considered the witness already of a party
calling him. That is answered by the case of

CHUA GAW VS SUY BEN CHUA

APRIL 16, 2008.

A party who calls his adversary as a witness is, therefore, not bound by the
latter’s testimony only in the sense that he may contradict him by introducing
other evidence to prove a state of facts contrary to what the witness testifies on. 35
A rule that provides that the party calling an adverse witness shall not be bound
by his testimony does not mean that such testimony may not be given its proper
weight, but merely that the calling party shall not be precluded from rebutting his
testimony or from impeaching him.

If the declaration, imoha na syang witness, gitawag nimo, you cannot contradict the
witness. But if the declaration is that he is an unwilling or a hostile witness and that he is
not your witness even if you’re the one proposing to present him as witness, it may still
be contradicted.

Section 14. Evidence of good character of witness. — Evidence of the good character of a
witness is not admissible until such character has been impeached.

RATIONALE

Why? For one it is immaterial to whatever the witness testifies upon. So the witness
testifies as to certain matters of fact and in the end of his testimony he produces
evidence saying he is honest and trustworthy. There’s no need for that. It is immaterial
and irrelevant.

When you do that despite the fact that the character of witness has not yet been
impeached, you are liable for bolstering. Bawal ng bolstering. The proponents of a
witness may not attempt to build up the witness’s credibility prior to the witness being
impeached.

The rationale is the witness is presumed trustworthy. It also speeds up proceedings by

not spending time bolstering the witness.

BOLSTERING A WITNESS

When can you bolster a witness? If the credibility of the witness has already been
impeached. In all probability if you are the proponent of that witness when can you
bolster? When can you present evidence of good character? Now it would be on redirect
examination. That’s the only time. You will know only kung gi-impeach ba sa opponent
ang witness during cross examination. The proper term for that is rehabilitation. When the

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character of the witness has been impeached, the proponent can now present
evidence of his good character. That is commonly known as rehabilitation.

Section 14 applies only when the character of the witness has been impeached. How is
rehabilitation done in case where other modes of impeachment where made? When you
say a witness character is impeached by evidence of bad character, how do you
impeach? By evidence that his character is good. But what about if another mode of
impeachment, let’s say prior inconsistent statements. How do you rehabilitate?

Actually Section14 was not saying anything about it. Neither do the other provisions
regarding on this matter have nothing to say about it. The Rules are actually silent.
However, my opinion is that, for the sake of fairness and for purposes of judicial
economy, the proponent is confined to use the same technique used by the opponent to
impeach the witness. So for example, if the opponent tried to impeach the witness by
means of bias, then rehabilitation is limited to negating the claim of bias. Bias ang means
sa imong kontra, pagrehabilitate nimo, you prove evidence of good character. You cannot
do that. That is not fair.

If the opponent brought in a rebuttal witness to testify the character of principal witness
as that of a liar, rehabilitation is limited also to a character witness who testifies the
principal witness is a truthful person. If for example the witness made a prior inconsistent
statement (witness was bought into saying something else before), how do you try to
rehabilitate that witness? By saying that there is no motive to lie, he is actually saying the
truth, by means of similar evidence rule. You cannot use a different type of evidence.

Section 15. Exclusion and separation of witnesses. — On any trial or hearing, the judge
may exclude from the court any witness not at the time under examination, so that he may
not hear the testimony of other witnesses. The judge may also cause witnesses to be kept
separate and to be prevented from conversing with one another until all shall have been
examined.

EXCLUSION AND SEPARATION OF WITNESS

Section15 has good intentions but again this is one of those rules that do not work. Any
good lawyer who exercises care in handling a case would tell you that you should be able
to talk to your witnesses ahead of his testimony…(Atty Espejo talked about his
experience). The law says that on any trial or hearing, the judge may exclude any
witnesses not at that time under examination. What’s the purpose of that? So that they
won’t hear the testimony of each other, para dili sila magkopyahanay. Pero pag discharge
pod sa witness, they can still talk with each other. It’s actually useless.

The judge may also cause witnesses to be kept separate and to be prevented from
conversing with one another until all shall have been examined. I have not encountered a
strict application of this rule. This is what we call sequestration of witnesses but in the
Philippine law, this has not been working.

SEC. 16. When witness may refer to memorandum. — A witness may be allowed to refresh
his memory respecting a fact, by anything written or recorded by himself or under his
direction at the time when the fact occurred, or immediately thereafter, or at any other time
when the fact was fresh in his memory and he knew that the same was correctly written or
recorded; but in such case the writing or record must be produced and may be inspected
by the adverse party, who may, if he chooses, cross-examine the witness upon it, and may
read it in evidence. So, also, a witness may testify from such a writing or record, though
he retain no recollection of the particular facts, if he is able to swear that the writing or

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record correctly stated the transaction when made; but such evidence must be
received with caution. (10a)

SEC. 17. When part of transaction, writing or record given in evidence, the remainder
admissible. — When part of an act, declaration, conversation, writing or record is given in
evidence by one party, the whole of the same subject may be inquired into by the other,
and when a detached act, declaration, conversation, writing or record is given in evidence,
any other act, declaration, conversation, writing or record necessary to its understanding
may also be given in evidence. (11a)

SEC. 18. Right to inspect writing shown to witness.— Whenever a writing is shown to a
witness, it may be inspected by the adverse party. (9a)

Refreshing Recollection of Witnesses – Rule 132, Sec. 16

REVIVAL OF PRESENT MEMORY

A witness may be allowed to refresh his memory respecting a fact, by anything written or
recorded by himself or under his direction at the time when the fact occurred, or
immediately thereafter, or at any other time when the fact was fresh in his memory and
knew that the same was correctly written or recorded,

BUT in such case the writing or record must be produced and may be inspected by the
adverse party, who may, if he chooses, cross examine the witness upon it, and may read
it in evidence.

Note: The memorandum is not evidence, it is still the testimony

PAST RECOLLECTION RECORDED

A witness may testify from such writing or record, (as in the case in revival of present
memory) though he retain no recollection of the particular facts, if he is able to swear that
the writing or record correctly stated the transaction when made; but such evidence must
be received with caution.

Note: It is the memorandum that will serve as evidence (documentary evidence)

WHAT IS THE CONSEQUENCE OF GIVING IN EVIDENCE A PART OF AN ACT,

DECLARATION, CONVERSATION, WRITING OR RECORD? (Rule 132, Section 17) [RULE OF
COMPLETENESS]

The whole of the same subject may be inquired into by the other, and when a detached
act, declaration, conversation, writing or record is given in evidence, any other act,
declaration, conversation, writing or record necessary to its understanding may also be
given in evidence.

B. AUTHENTICATION AND PROOF OF DOCUMENTS

BASIC REQUISITES FOR
THE ADMISSIBILITY OF DOCUMENTARY EVIDENCE

1. The evidence must be relevant;

2. The evidence must be authenticated by a competent witness; and
3. The document must be formally offered in evidence.

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WHAT IS AUTHENTICATION?

Authentication, in the law of evidence, is the process by which documentary evidence and
other physical evidence is proven to be genuine, and not a forgery.

For documents in general and from a practical standpoint, authentication can be shown in
one of two ways. First, a witness can testify as to the chain of custody through which the
evidence passed from the time of the discovery up until the trial.

Second, the evidence can be authenticated by the opinion of an expert witness examining
the evidence to determine if it has all of the properties that it would be expected to have if it
were authentic.

The following provisions present modifications to the process of authentication we have

learned so far.

Section 19. Classes of Documents. - For the purpose of their presentation in evidence,
documents are either public or private.

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.

All other writings are private. (20a)

FOR THE PURPOSE OF THEIR PRESENTATION OF EVIDENCE

The provision classifies documents either as public or private for evidentiary purpose. Is there
another classification of documents but not for evidentiary purposes? YES. This can be found
under the Revised Penal Code regarding the crime of Falsification.

PUBLIC DOCUMENTS

The provision enumerates all documents which are deemed to be public and all others not
enumerated are private. 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.

OFFICIAL ACTS AND RECORDS

Written official acts and records are proven in the manner provided for under Sections
23 and 24, to wit:

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In general
Section 23. Public documents as evidence. - Documents consisting of entries in public
records made in the performance of a duty by a public officer are prima facie evidence of
the facts therein stated. 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 latter. (24a)

Note that entries in public records are prima facie evidence of all the facts therein stated. This
makes this class of documents self-authenticating.

All other public documents are evidence, even against a third person, of two facts, namely: 1. the
fact which gave rise to their execution; and 2. the date of the document.

This is in consonance with a previous rule, Rule 130, Section 44:

Section 44. Entries in official records. - Entries in official records made in the performance of his
duty by a public officer of the Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein stated. (38)

PEOPLE OF THE PHILIPPINES vs. FILOMENO MAYINGQUE

G.R. No. 179709, July 6, 2010

The testimony of Dr. Salen as regards the Anatomical Sketch, and Medico Legal Report, among
other things, prepared by Dr. Aranas falls under the exception to the hearsay rule because the
said sketch and report are entries in official records made by Dr. Aranas in the performance of his
duty as a Medico Legal Officer of the WPD Crime Laboratory. Dr. Aranas had personal
knowledge of the facts stated by him the said sketch and report relative to the nature and number
of wounds sustained by Tusi because he was the one who performed the autopsy on the cadaver
of Tusi. Dr. Salen acquired such facts from the sketch and report made by his predecessor, Dr.
Aranas, who had a legal duty to turn over the same to him as his successor. Such entries were
duly entered in a regular manner in the official records, hence, the entries in said sketch and
report are prima facie evidence of the facts therein stated and are admissible under Section 44,
Rule 130 of the Rules of Court.

OFFICIAL RECORDS

Section 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 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. (25a)

By way of summary, the official record may be evidenced by:

(1) an official publication thereof;
(2) 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 record 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.

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NOTARIAL DOCUMENTS

Notarial documents are proven in the following manner:

Section 30. Proof of notarial documents. - Every instrument duly acknowledged or proved
and certified as provided by law, may be presented in evidence without further proof, the
certificate of acknowledgment being prima facie evidence of the execution of the
instrument or document involved.

FUNCTION OF NOTARIZATION

ANGELES vs. IBAÑEZ

January 15, 2009

Notarization of a private document converts such document into a public one and renders it
admissible in court without further proof of its authenticity; courts, administrative agencies and the
public at large must be able to rely upon the acknowledgement executed by a notary public and
appended to a private document. Consequently, it is the duty of the notarial officer to demand that
a document be signed in his presence by the real parties thereto; the notarial officer must
observe "utmost care" to comply with the elementary formalities in the performance of his duties

PRESUMPTION OF REGULARITY OF NOTARIAL DOCUMENTS

LAZARO vs. AGUSTIN

G.R. No. 152364, April 15, 2010

Settled is the rule that generally, a notarized document carries the evidentiary weight
conferred upon it with respect to its due execution, and documents acknowledged before
a notary public have in their favor the presumption of regularity. However, this
presumption is not absolute and may be rebutted by clear and convincing evidence to the
contrary.

Moreover, not all notarized documents are exempted from the rule on authentication.
Thus, an affidavit does not automatically become a public document just because it
contains a notarial jurat. The presumptions that attach to notarized documents can be
affirmed only so long as it is beyond dispute that the notarization was regular.

Petitioners rely heavily on the presumption of regularity accorded by law to notarized

documents. While indeed, a notarized document enjoys this presumption, the fact that a
deed is notarized is not a guarantee of the validity of its contents.

As earlier discussed, the presumption is not absolute and may be rebutted by clear and
convincing evidence to the contrary. The presumption cannot be made to apply to the
present case because the regularity In the execution of the sworn statement was
challenged in the proceedings below where its prima facie validity was overthrown by the
highly questionable circumstances under which it was supposedly executed, as well as
the testimonies of witnesses who testified on the improbability of execution of the sworn
statement, as well as on the physical condition of the signatory, at the time the
questioned document was supposedly executed. The trial and appellate courts were
unanimous in giving credence to the testimonies of these witnesses.

The Court has repeatedly held that it will not interfere with the trial court's determination
of the credibility of witnesses, unless there appears on record some fact or circumstance

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of weight and influence which has been overlooked or the significance of

which has been misinterpreted. The reason for this is that the trial court was in a better
position to do so, because it heard the witnesses testify before it and had every
opportunity to observe their demeanor and deportment on the witness stand.

EXCEPT LAST WILLS AND TESTAMENTS

The exception is grounded on the principle that a will is a strictly personal act and is highly
private in nature. Even if a will is notarized, it is not converted into a public document in the
context of Section 19. In fact, a notary public is not even required to keep a copy of a will.

Note that there are separate rules and requirements in the authentication and proof of a
notarial will, which rules are found in the Civil Code and under the Rules on Special
Proceedings.

PUBLIC RECORDS OF PRIVATE DOCUMENTS

Examples of these are forms accomplished by a private citizen and required by law to be
submitted to a government office (i.e. tax returns, birth certificate). They are proven in the manner
provided in:

Section 27. Public record of a private document. - An authorized public record of a private
document may be proved by the original record, or by a copy thereof, attested by the legal
custodian of the record, with an appropriate certificate that such officer has the custody.
(28a)

Section 20. Proof of private document. - 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.

Any other private document need only be identified as that which it is claimed to jbe.

PRIVATE DOCUMENTS AND NEED FOR AUTHENTICATION

Section 20 highlights the distinction between a public document and a private document. A
private document requires authentication while a public document is normally self-
authenticating.

A private document cannot be admitted in evidence if it has not been duly authenticated.

HOW TO AUTHENTICATE:

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.

WHEN AUTHENTICATION OF A PRIVATE DOCUMENT IS DISPENSED WITH:

1. When the private document is an actionable document not denied under oath by a party;
2. When the authenticity and due execution of the document are otherwise admitted (i.e.
during pre-trial or in a request for admission);
3. Where the private document is an ancient document under Section 21.

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Section 21. When evidence of authenticity of private document not necessary. -

Where a private document is more than thirty years old, is 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. (22a)

ANCIENT DOCUMENT

With respect to authentication, an "ancient document" is one that may be deemed authentic
without a witness to attest to the circumstances of its creation because its age suggests that it is
unlikely to have been falsified in anticipation of the litigation in which it is introduced.

REQUISITES

1. The private document is more than thirty years old;

2. It is produced from the custody in which it would naturally be found if genuine; and
3. It is unblemished by any alterations or circumstances of suspicion.

OTHER COMMENTS

By admitting an ancient document into evidence, it is presumed only that the document is what it
purports to be, but there are no presumptions about the truth of the document's contents. The
court still has absolute discretion as to how much evidentiary weight is to be given to the ancient
document.

Finally, take note that an ancient document is technically hearsay inasmuch as it is an out-of-
court declaration made by a declarant who, in all probability, could no longer testify. However, due
to the unlikelihood of falsification in anticipation of litigation, ancient documents are admissible.

ANCIENT DOCUMENTS AND DEAD MAN’S STATUTE

CEQUEÑA vs. BOLANTE

G.R. No. 137944, April 6, 2000

Before a private document offered as authentic can be received in evidence, its due
execution and authenticity must be proved first. And before a document is admitted as an
exception to the hearsay rule under the Dead Man's Statute, the offeror must show (a) that
the declarant is dead, insane or unable to testify; (b) that the declaration concerns a fact
cognizable by the declarant; (c) that at the time the declaration was made, he was aware
that the same was contrary to his interest; and (d) that circumstances render improbable
the existence of any motive to falsify.

An ancient document is one that is (1) more than 30 years old, (2) found in the proper
custody, and (3) unblemished by any alteration or by any circumstance of suspicion. It must
on its face appear to be genuine.

SELF-AUTHENTICATING DOCUMENTS
A self-authenticating document, under the law of evidence in the United States, is any
document that can be admitted into evidence at a trial without proof being submitted to
support the claim that the document is what it appears to be. Among self-authenticating
documents are:

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1. Public documents under Section 19; and

2. Ancient documents.
In the US, newspapers are considered self-authenticating. While not public documents in
the legal or procedural sense, they are considered self-authenticating because newspapers
are public in nature, being published in the multitudes.

AUTHENTICITY BY CONTENT
If a document is known only to a person and a writing appears to be making reference to
the fact, the presumption is that the writing is a genuine writing of that person. (Example: Reply
Letters)

Section 22. How genuineness of handwriting proved. - The handwriting of a person may be
proved by any witness who believes it to be the handwriting of such person because he
has seen the person write, or has seen writing purporting to be his upon which the witness
has acted or been charged, and has thus acquired knowledge of the handwriting of such
person. Evidence respecting the handwriting may also be given by a comparison, made by
the witness or the court, with writings admitted or treated as genuine by the party against
whom the evidence is offered, or proved to be genuine to the satisfaction of the judge.
(23a)

CROSS REFERENCE

Rule 130, Section 50. Opinion of ordinary witnesses. - The opinion of a witness for which
proper basis is given, may be received in evidence regarding:
(a) The identity of a person about whom he has adequate knowledge;
(b) A handwriting with which he has sufficient familiarity; and
(c) The mental sanity of a person with whom he is sufficiently acquainted.
The witness may also testify on his impressions of the emotion, behavior, condition or
appearance of a person. (44a)

Section 25. What attestation of copy must state. - Whenever a copy of a document or
record is attested for the purpose of 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. (26a)

ATTESTATION

Attestation is the act of authenticating a document by observing its execution at the request of the
party signing the document, and then signing it as a witness.

CROSS REFERENCE TO RULE 130

Section 3. Original document must be produced; exceptions. - When the subject of inquiry is
the contents of a document, no evidence shall be admissible other than the original document
itself, except in the following cases:
XXX
(d) When the original is a public record in the custody of a public officer or is recorded in a public
office. (2a)
Section 7. Evidence admissible when original document is a public record. - 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. (2a)

Section 26. Irremovability of public record. - Any public record, an official copy of which is
admissible in evidence, must not be removed from the office in which it is kept, except
upon order of a court where the inspection of the record is essential to the just

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determination of a pending case. (27a)

Section 28. 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. (29)

EXAMPLE (DEAN IÑIGO: Certification of Lack of Record re: Birth Certificate)

Section 29. How judicial record 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. (30a)

COMMENT

Section 29 refers to judicial records and judgments of a domestic court offered in evidence in
another case. For foreign judgments, we have:

Section 48. Effect of foreign judgments or final orders. — The effect of a judgment or final
order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is
as follows:
(a) In case of a judgment or final order upon a specific thing, the judgment or final order, is
conclusive upon the title to the thing, and
(b) In case of a judgment or final order against a person, the judgment or final order is
presumptive evidence of a right as between the parties and their successors in interest by a
subsequent title.
In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction,
want of notice to the party, collusion, fraud, or clear mistake of law or fact. (50a)

Section 31. Alteration in document, how to explain. - The party producing a document as
genuine which has been altered and appears to have been altered after its execution, in a
part material to the question in dispute, must account for the alteration. He may show that
the alteration was made by another, without his concurrence, or was made with the
consent of the parties affected by it, or was otherwise properly or innocent made, or that
the alteration did not change the meaning or language of the instrument. If he fails to do
that, the document shall not be admissible in evidence. (32a)

Section 32. Seal. - There shall be no difference between sealed and unsealed private
documents insofar as their admissibility as evidence is concerned. (33a)

Section 33. Documentary evidence in an unofficial language. - Documents written in an

unofficial language shall not be admitted as evidence, unless accompanied with a
translation into English or Filipino. To avoid interruption of proceedings, parties or their
attorneys are directed to have such translation prepared before trial. (34a

C. OFFER AND OBJECTION

SEC. 34. Offer of evidence.—The court shall consider no evidence which has not been
formally offered. The purpose for which the evidence is offered must be specified.

PRESENTATION V. OFFER OF EVIDENCE

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There is a big difference between presentation and offer of evidence. The

presentation of evidence consist of putting in evidence the testimony of witnesses and
the document as well relevant to the issue. On the other hand, an offer of evidence is
the statement made by counsel as to what he expects to prove through the evidence.
Offer is an introduction or it is an explanation of what the document or the testimony is. A
party therefore may opt to formally offer evidence, if he believes that it could advance his
cause or not to do so at all, in event that he will do the latter the trial court is not
authorized by the rules of court to consider it. Effect of failure to offer evidence: All
evidence not formally offered the court cannot assign the evidence any evidentiary weight
or value.

RATIONALE

To inform the court of the purpose of the testimony to enable the judge to rule whether
the testimony is necessary or irrelevant or immaterial. Formal offer is necessary because
judges are mandated to rest their findings of facts and their judgments only strictly on the
evidence presented during the trial.

FUNCTIONS OF OFFER

To enable the judge to know the purpose for which the proponent presenting the
evidence and on the other hand allows the other party to examine and to object to its
admissibility. Moreover, it facilitates to reveal to the appellate court not to review
documents not previously scrutinized by the trial court. It is the act of making the offer to
determine the relevancy of evidence. If it is irrelevant, the court will not allow the
proponent to present the witness or document.

SUBJECT TO THE RULE OF MULTIPLE ADMISSIBILITY OF EVIDENCE

WHAT IS THIS MULTIPLE ADMISSIBILITY OF EVIDENCE? Evidence can be

admissible for different purposes. An evidence not formally offered will be excluded.
Sec. 34 is a rule of exclusion. Failure to make an offer within a reasonable time is
deemed a waiver to submit it. Consequently, the evidence not presented shall be
excluded.

WHAT IS THE REMEDY OF THE OPPONENT? To move for the striking out of evidence
in the record and the court may exclude the same by (?in its own initiative?).

TIOMIKO V. CA
[MARCH 4 1999]

Even if sec. 34 is a rule of exclusion, it is still subject to substantial compliance.

In the case under scrutiny, since the purpose of subject testimony was succinctly
stated, the reason behind the requirement for its formal offer has been
substantially complied with. What the defense counsel should have done should
have been to interpose his objection the moment the private respondent was
called to testify, on the ground that there was no prior offer made by the
proponent. 10
The tendency of the rules on evidence, is towards substantial justice rather than
strict adherence to technicalities. To condemn the disputed testimony as
inadmissible due to the failure of the private prosecutor to properly observe the
rules on presentation of evidence, would render nugatory, and defeat the
proceedings before the lower court.

CAN JUDICIAL ADMISSION BE SUBJECT TO THE RULE ON OFFER?

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No. A judicial admission is an evidence elicited during trial. It is not part of

offer, whether it is admissible or not. Why? Because it has the effect of taking point from
a contention.

SEC. 35. When to make offer.—As regards the testimony of a witness, the offer must be
made at the time the witness is called to testify.
Documentary and object evidence shall be offered after the presentation of a party's
testimonial evidence. Such offer shall be done orally unless allowed by the court to be
done in writing.

A. WHEN DO YOU OFFER TESTIMONIAL EVIDENCE?

At the time the witness is called to testify.

B. EFFECT OF NO FORMAL OFFER: The lawyer forgets to offer as evidence the testimony of
his witness. He instead, proceeded to the direct examination of his witness. The other party may
not cross-examine the said witness, and instead file a motion to strike out the testimony of the
witness from the records of the case. Kapoy-kapoy lang ang witness ug testify.

C. WITH RESPECT TO OBJECT EVIDENCE, WHEN WILL YOU KNOW, WHAT ARE THE
EVIDENCES OF THE PARTIES?
In the affidavit complaint or in the answer, naa na dira ang documentary evidence, if the evidence
is related to the cause of action or defense. During Pre-trial, there will be a process called pre-
marking of documentary and object evidence. The photocopy of these documents are
provisionally marked. Then during the trial, when the witness testifies and he identifies these
documents, mas dali na lang ang pagtransfer sa status sa document from provisionally marked to
permanently marked evidence.

D.WHEN DO YOU OFFER DOCUMENTARY EVIDENCE?

After the party presented the testimonial evidence. Offer may be done orally unless allowed by
the court in writing. But the general rule is, it is really made in writing. But there are courts that
will allow offer of documentary evidence that would not be in writing. Trick of lawyers who are
swamped by cases, so they will just dictate and the stenographer just record it.

All you need to do is submit a formal offer of documentary evidence. Stating what are your
exhibits and what are the purpose of these exhibits? And you submit your offer after you rested
your case. Meaning wala na kay ipresent na witness.

E. HOW DO YOU OFFER AN OBJECT EVIDENCE?

Take a photo and have a witness identify the object evidence.

F. WHAT WILL HAPPEN IF YOU PRE-MARKED THE DOCUMENT, MADE THE WITNESS
IDENTIFY THE DOCUMENT, BUT YOU FORGOT TO FORMALLY OFFER THE SAME?

The mere fact that the document is pre-marked and identified as exhibit does not mean it is
already part of the evidence. It must be emphasized that any evidence that a party wish to
connect for the consideration of the court must be formally offered by the party, otherwise it is
excluded.

PEOPLE V. MARTE
[MARCH 27, 1981]

Ruling: The defense questions also the failure of the state prosecutor Cornelio Melendres
to make a formal offer of his exhibits, although they have been marked and identified.
Such an oversight appears trivial because the entire evidence for the prosecution is
recorded. Even without the exhibits which have been incorporated into the records of the

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case, the prosecution can still establish the case because the witnesses
properly identified those exhibits and their testimonies are recorded.

Exhibits "A", "B", and "J" are all admissible against Mate because it appears with clarity
that he voluntarily and spontaneously gave those narrations without compulsion from
anybody, In fact, ... when he testified against Been Bohol he affirmed those narrations
again. Even without the exhibit the prosecution can still establish that the witness
properly identified the accused.

MATO V. CA
[NOVEMEBER 23, 1995]

From the foregoing provision, it is clear that for evidence to be considered, the same
must be formally offered. Corollarily, the mere fact that a particular document is identified
and marked as an exhibit does not mean that it has already been offered as part of the
evidence of a party. In Interpacific Transit, Inc. v. Aviles, 10 we had the occasion to make a
distinction between identification of documentary evidence and its formal offer as an
exhibit. We said that the first is done in the course of the trial and is accompanied by the
marking of the evidence as an exhibit while the second is done only when the party rests
its case and not before. A party, therefore, may opt to formally offer his evidence if he
believes that it will advance his cause or not to do so at all. In the event he chooses to do
the latter, the trial court is not authorized by the Rules to consider the same.

However, in People v. Napat-a 11 citing People v. Mate, 12 we relaxed the foregoing rule
and allowed evidence not formally offered to be admitted and considered by the trial
court provided the following requirements are present,viz.: first, the same must have
been duly identified by testimony duly recorded and, second, the same must have been
incorporated in the records of the case.

IDENTIFICATION—that the evidence must have been identified and pre-marked during the trial
and subsequently identified by the witness in his testimony which is duly recorded. Bolstering
this act, is the act of the opposing counsel, cross-examining the witness.

INCORPORATION—means evidence must be made part of the records.

WHEN IS EVIDENCE MADE PART OF THE RECORD? During the Submission. By filing a
motion or filing a pleading.

BRAVO VS. BORJA

[FEBRUARY 1997]

This was error because evidence of petitioner's minority was already a part of the
record of the case. It was properly filed in support of a motion. It would be a
needless formality to offer it in evidence.

GR: THE COURT CANNOT CONSIDER AN EVIDENCE THAT IS NOT FORMALLY OFFERED.
EXCEPTION:
A. Case of Mate and Mateo
1) if the evidence have been duly identified by testimony which is duly recorded and,
2) the same must have been incorporated in the records of the case.

B. waiver:
when the opposing party failed to file a motion to strike but in fact cross-examined the witness.
Or simply the lawyer of the opposing party failed to object.

C. Substantial compliance—case of Tiomico

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As aptly stressed by the Solicitor General in his Comment, “the absence of

the words, ‘we are formally offering the testimony for the purpose of...’ ” should be
considered merely as an excusable oversight on the part of the private prosecutor.

It should be borne in mind that the rationale behind Section 34 of Rule 132 is to inform
the Court of the purpose of the testimony, to enable the judge to rule whether the said
testimony is necessary or is irrelevant or immaterial.

In the case under scrutiny, since the purpose of subject testimony was succinctly stated,
the reason behind the requirement for its formal offer has been substantially complied
with. What the defense counsel should have done should have been to interpose his
objection the moment the private respondent was called to testify, on the ground that
there was no prior offer made by the proponent.

The tendency of the rules on evidence, is towards substantial justice rather than strict
adherence to technicalities. To condemn the disputed testimony as inadmissible due to
the failure of the private prosecutor to properly observe the rules on presentation of
evidence, would render nugatory, and defeat the proceedings before the lower court.

EXCEPTION TO THE EXCEPTION: Even if the document is pre-marked and pre-identified. In

criminal cases, evidence would still be excluded if the pre-trial order is not signed. Remember in
criminal cases you cannot be bound if what happened to pre-trial is not signed.

WHAT ARE THE STAGES OF PRESENTATION OF EVIDENCE?

1. identification—that the document presented is the same one referred to by the witness.
2. marking—every time you present an exhibit, you always have it marked. It may have
been pre-marked during pre-trial, but it still needed to be permanently marked after it is
being identified. [Not all documents that will be identified in the direct examination are
pre-marked. In my practice, I always reserved the marking of some documents.]
3. authenticated—prove the document’s due execution and then
4. inspection—give the other party the opportunity to examine
5. offer

SEC. 36. Objection.— Objection to evidence offered orally must be made immediately after
the offer is made.
Objection to a question propounded in the course of the oral examination of a witness
shall be made as soon as the grounds therefor shall become reasonably apparent.
An offer of evidence in writing shall be objected to within three (3) days after notice of the
offer unless a different period is allowed by the court.

In any case, the grounds for the objections must be specified. (36a)

MEANING OF OBJECTION
Objection is a formal protest raised in court during a trial to disallow a witness'
testimony or other evidence which would be in violation of the rules of evidence or other
procedural law.

So Section 36 provides that Objection to evidence offered orally must be made

immediately after the offer is made.

WHAT ABOUT OBJECTION TO A QUESTION?

Objection to a question propounded in the course of the oral examination of a witness

shall be made as soon as the grounds therefor shall become reasonably apparent. For

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example: a witness testify on a matter that has no relation to the facts of the
case so the objection is on the ground for relevancy.

GROUNDS FOR OBJECTION

An offer of evidence in writing shall be objected to within three (3) days after notice
of the offer unless a different period is allowed by the court.

The grounds for the objections must be specified.

So let us go to the different kinds of objections

AS TO GROUND:
1. General or broadside – it does not go beyond declaring the objection based on
immaterial, incompetent or irrelevant. It does not specify the ground.
2. Specific – states the ground of the objection. Ex. Ground is marital privilege.

AS TO TYPE:
Objections may be formal or substantive.
1. Formal objection: one directed against the alleged defect in the
formulation of the question (Examples of defectively formulated
questions: ambiguous, argumentative, etc.)
2. Substantive objection: objections made and directed against
the very nature of the evidence, i.e. it is inadmissible either
because it is irrelevant or incompetent or both

NOTE: Objections do not have to be made during trial; it can be made outside of trial.
Ex. Objection during taking of deposition.

WHAT IS THE PURPOSE OF OBJECTIONS DURING DEPOSITION?

Not for exclusion but to preserve the objection for exclusion later on.

PURPOSE OF OBJECTIONS

 To protect the witness so as not be badgered by the lawyer and from himself
( inexperienced witness )
 To protect evidence for review. Example. Evidence , otherwise inadmissible, was
admitted by the lower court, so you have to object so that later on when you
appeal you can point out specifically that you have objected against such
admission so that there will be no waiver by failure to object.

COMMON OBJECTIONS

- Objections based on vague questions

- Objection based on “arguing the law” . The lawyer cannot object based on an
interpretation of law.
- “Asked and answered objection” – when a question has already been asked and
the witness has already been answered to create an inconsistency when no such
inconsistency exist.
- Objection based on badgering – when the witness is treated with insulting
demeanor, openly mocking the witness.
- Objection on inadmissibility of documentary evidence presented.
- Objections beyond the scope – for example: in cross examination, the counsel
will ask questions not covered in direct examination.

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- Objection that calls for a conclusion – when the counsel ask questions making
conclusions.
- Objections when a question tends to illicit prejudice to the witness ( same as
badgering )
- Objections when the witness is narrating. Remember one question = one answer.
No narration otherwise you can object.
- Objections based on the answer of the witness as not responsive to the question.
( Story about dean Inigo )

SEC. 37. When repetition of objection unnecessary.— 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, it shall not be necessary to repeat the
objection, it being sufficient for the adverse party to record his continuing objection to
such class of questions.

Example: In a document containing several paragraphs, you do not have to object after each
paragraph is presented. As long as it is within the same class, no need to repeat objection. You
are allowed to make a continuing objection – objection to all questions of the same class.

SEC. 38. Ruling.— The ruling of the court must be given immediately after the objection is
made, unless the court desires to take a reasonable time to inform itself on the question
presented; 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.

The reason for sustaining or overruling an objection need not be stated. However, if the
objection is based on two or more grounds, a ruling sustaining the objection on one or
some of them must specify the ground or grounds relied upon. (38a)

The rule is that the court must immediately rule on the objection. If overruled, then the counsel
will proceed. If sustained, the counsel shall stop or rephrase his question. But by way of
exception, if the court desires to take reasonable time, then the ruling of the question may be
deferred.

If there are two or more grounds, the judge must specify the ground for sustaining the objection.
This is necessary in case the case is appealed. To provide on record the basis for error found
which will be raised on appeal.

SEC. 39. Striking out answer.— Should a witness answer the question before the adverse
party had the opportunity to voice fully its objection to the same, and such objection is
found to be meritorious, the court shall sustain the objection and order the answer given
to be stricken off the record.

On proper motion, the court may also order the striking out of answers which are
incompetent, irrelevant, or otherwise improper. (n)

When the answer is supposed to be objectionable but there is no time to raise the objection, the
remedy is to have that answer stricken off.

SEC. 40. Tender of excluded evidence.— If documents or things offered in evidence are
excluded by the court, the offeror may have the same attached to or made part of the
record. If the evidence excluded is oral, the offeror may state for the record the name and

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other personal circumstances of the witness and the substance of the proposed
testimony. (n)

You want to present this evidence, you feel it is important but the judge did not allow you to
present. What will you do? You apply this section, you tender the excluded evidence or according
to Dean inigo, proffer evidence. Why is this important? For purposes of appeal.

SUMMARY

Documentary evidence – the offeror may have the same attached or made part of the
record.

Testimonial evidence – the offeror may state for the record the name and other personal
circumstances of the witness and the substance of the proposed testimony.

There is a distinction between identification of documentary evidence and its formal offer
as an exhibit. The former is done in the course of the trial and is accompanied by the
marking of the evidence while the latter is done only when the party rests his/her case.
That a document has been identified does not mean that it will be offered. (Interpacific
Transit vs. Aviles, 1990)

While there was no offer of the testimony, petitioner waived this defect by failing to object
when the ground became reasonably apparent the moment private respondent was
called to testify without any prior offer having been made. (Catuira vs. CA, 1994)

The rule requiring that there must be a formal offer of evidence before the evidence can
be considered may be relaxed provided the evidence must have duly identified by
testimony duly recorded and they must have been incorporated in the records of the
case. (Vda. De OÒate vs. CA, 1995)

OFFER OF PROOF/TENDER OF EXCLUDED EVIDENCE vs. OFFER OF EVIDENCE

First, is only resorted to if admission is refused by the court for purposes of review on
appeal. Second, refers to testimonial, documentary or object evidence that are presented
or offered in court by a party so that the court can consider his evidence when it comes to
the preparation of the decision.

RULE 133
WEIGHT AND SUFFICIENCY OF EVIDENCE
This is not probably the first time you will be hearing the concepts that we will discuss tonight but
this is the only time that we are going to hear about preponderance of evidence, proof beyond
reasonable doubt and substantial evidence in remedial law purposes.

So, the question is what are the differences between weight and sufficiency of evidence

WEIGHT
Balance of evidence – in whose favour the
balance tilts.
This refers to the implication of the greater
evidence between the parties. It depends on
SUFFICIENCY
Refers to the adequacy of evidence and such
evidence in character, weight or amount that
would legally justify the judicial action
demanded and prayed for by the parties.
It answers the question whether the evidence
amounts or meets the required quantum

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the judicial interpretation based on needed to arrive at a decision whether in a civil,

the guidelines provided by the rules and by
jurisprudence.
criminal or administrative case or to prove
matters or defense or in litigation to overcome
a prima facie case or presumption. In
sufficiency you have there the quantum of
proof.

DEFINITION OF QUANTUM OF PROOF

Quantum of proof is the standard which must be satisfied in order to prove something.

HIERARCHY OF EVIDENTIARY VALUES

1. Proof beyond reasonable doubt.

2. Clear and Convincing Evidence- It is above preponderance but below proof beyond
reasonable doubt.
3. Preponderance of Evidence in Civil Cases.
4. Administrative Evidence.

A. REQUIRED QUANTUM OF EVIDENCE

SECTION 1. Preponderance of evidence, how determined.— In civil cases, the party having
the burden of proof must establish his case by a preponderance of evidence. In
determining where the preponderance or superior weight of evidence on the issues
involved lies, the court may consider all the facts and circumstances of the case, the
witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing
the facts to which they are testifying, the nature of the facts to which they testify, the
probability or improbability of their testimony, their interest or want of interest, and also
their personal credibility so far as the same may legitimately appear upon the trial. The
court may also consider the number of witnesses, though the preponderance is not
necessarily with the greater number.

One thing to remember here: Witnesses are not supposed to be counted but they are supposed
to be weighed.

HOW DETERMINED? The court may consider:

1. All the facts and circumstances of the case;
2. The witnesses’ manner of testifying;
3. Their intelligence;
4. Their means and opportunity of knowing the facts to which they testify;
5. The probability or improbability of their testimony;
6. Their interest or want of interest;
7. Personal credibility so far as the same may legitimately appear upon the trial;
8. Number of witnesses (note preponderance that is not necessarily equated with the no. of
witnesses)

SEC. 2. Proof beyond reasonable doubt.—In a criminal case, the accused is entitled to an
acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable
doubt does not mean such a degree of proof as, excluding possibility of error, produces
absolute certainty. Moral certainty only is required, or that degree of proof which produces
conviction in an unprejudiced mind.(2a)

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What is the reason why a mere reasonable doubt is sufficient to acquit? This is
answered in the case of

AMANQUITON V. PEOPLE
(G.R. NO. 186080) AUG. 14, 2009

Reason for the requirement of proof beyond reasonable doubt to convict an accuse:
[Proof beyond reasonable doubt] lies in the fact that in a criminal prosecution, the State is
arrayed against the subject; it enters the contest with a prior inculpatory finding in its
hands; with unlimited means of command; with counsel usually of authority and capacity,
who are regarded as public officers, as therefore as speaking semi-judicially, and with an
attitude of tranquil majesty often in striking contrast to that of defendant engaged in a
perturbed and distracting struggle for liberty if not for life. These inequalities of position,
the law strives to meet by the rule that there is to be no conviction where there is
reasonable doubt of guilt. However, proof beyond reasonable doubt requires only moral
certainty or that degree of proof which produces conviction in an unprejudiced mind.
Example: OJ Simpson (the gloves)

WHAT IS REASONABLE DOUBT?

PP. V. DELA CRUZ

GR NO. 185717 JUNE 8, 2011

By reasonable doubt is not meant that which of possibility may arise but it is that doubt
engendered by an investigation of the whole proof and an inability, after such an
investigation, to let the mind rest easy upon the certainty of guilt. An acquittal based on
reasonable doubt will prosper even though the appellants’ innocence may be doubted,
for a criminal conviction rests on the strength of the evidence of the prosecution and not
on the weakness of the evidence of the defense. Suffice it to say, a slightest doubt should
be resolved in favor of the accused.

Now let’s go first to Section 5.

SEC. 5. Substantial evidence.—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.(n)

This applies to administrative and labor law.

WHAT IS SUBSTANTIAL EVIDENCE?

Substantial evidence requires that amount of relevant evidence which a reasonable mind
might accept as adequate to support a conclusion.

COMPARE THE THREE:

 Preponderance of evidence = has more guidelines to follow under Section 1.
 Proof beyond reasonable doubt = has a stringent provision, which is moral certainty.
 Substantial evidence = has only one standard, reasonable mind or reasonableness.

As to what constitutes reasonable is also relative. What may be reasonable to me may not be
reasonable to the court.

The greater the quantum of proof is, the easier it is to defend. But the lower the hierarchy of the
quantum of proof is, the more it is difficult to defend.

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 law on evidence

In the landmark case of Ang Tibay v. CIR, we laid down the cardinal rights of parties in
administrative proceedings, as follows:
1) The right to a hearing, which includes the right to present one’s case and submit
evidence in support thereof.
2) The tribunal must consider the evidence presented.
3) The decision must have something to support itself.
4) The evidence must be substantial.
5) The decision must be rendered on the evidence presented at the hearing, or at
least contained in the record and disclosed to the parties affected.
6) The tribunal or body or any of its judges must act on its or his own independent
consideration of the law and facts of the controversy and not simply accept the views of a
subordinate in arriving at a decision.
7) The board or body should, in all controversial question, render its decision in such a
manner that the parties to the proceeding can know the various issues involved, and the
reason for the decision rendered.

B. EXTRAJUDICIAL CONFESSION

SEC. 3. Extrajudicial confession, not sufficient ground for conviction.—An extrajudicial

confession made by an accused, shall not be sufficient ground for conviction, unless
corroborated by evidence of corpus delicti.(3)

This is something that we have discussed already.

CORPUS DELICTI
(not the body of the victim) it refers to the fact that the crime has been committed. In
murder, the corpus delicti is the fact of death. In theft, the fact that the object is stolen.
Not necessarily the body of the crime.

REQUISITES FOR THE ADMISSIBILITY OF EXTRAJUDICIAL CONFESSIONS?

(1) Must involve an express and categorical acknowledgment of guilt (US v. Corales);
(2) The facts admitted must be constitutive of a criminal offense (US v. Flores);
(3) Must have been given voluntarily (People v. Nishishima);
(4) Must have been made intelligently (Bilaan v. Cusi)
(5) Must have been made with the assistance of competent and independent counsel
(Art III, Sec. 12, 1987 Constitution)

DIFFERENTIATE THE EFFECTS OF JUDICIAL AND EXTRAJUDICIAL CONFESSIONS.

A judicial confession is sufficient in itself to sustain a conviction, even in capital offenses.

On the other hand, an extrajudicial confession is insufficient in itself to sustain a
conviction. It must be corroborated by evidence of the corpus delicti

Note: In judicial confession, the accused takes the witness stand and say yes I confess.
Then no need to prove the elements of the crime. In an extra-judicial confession, the
prosecution still have to prove the corpus delicti. How? By proving the elements of the
crime.

RULES GOVERNING EXTRAJUDICIAL CONFESSIONS:

General Rule: The extrajudicial confession of an accused is binding only upon himself
and is not admissible against his co-accused.

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 law on evidence

Exceptions:
(1) Interlocking confessions, i.e. extrajudicial confessions independently made without
collusion which are identical with each other in their material respects and
confirmatory of the other (People v. Encipido);

(2) If the co-accused impliedly acquiesced in or adopted said confession by not

questioning its truthfulness (People v. Orenciada);

(3) Where the accused admitted the facts stated by the confessant after being apprised
of such confession (People v. Narciso);

(4) If the accused are charged as co-conspirators of the crime which was confessed by
one of the accused and said confession is used only as corroborative evidence
(People v. Linde);

(5) Where the confession is used as circumstantial evidence to show the probability of
participation by the co-conspirator (People v. Condemena);

(6) Where the confessant testified for his co-defendant (People v. Villanueva);

(7) Where the co-conspirator’s extrajudicial confession is corroborated by other

evidence of record (People v. Paz)

PP V. QUIMZON
APRIL 14, 2004]

Corpus delicti is defined as the body, foundation or substance upon which a crime has
been committed, e.g. the corpse of a murdered man. It refers to the fact that a crime has
been actually committed. Corpus delicti does not refer to the autopsy report evidencing
the nature of the wounds sustained by the victim nor the testimony of the physician who
conducted the autopsy or medical examination.

It is made up of two elements:

(a) that a certain result has been proved, for example, a man has died and
(b) that some person is criminally responsible for the act.

Proof of corpus delicti is indispensable in prosecutions for felonies and offenses. While
the autopsy report of a medico legal expert in cases of murder or homicide is preferably
accepted to show the extent of the injuries suffered by the victim, it is not the only
competent evidence to prove the injuries and the fact of death. It may be proved by the
testimonies of credible witnesses.

Even a single witness’ uncorroborated testimony, if credible, may suffice to prove it and
warrant a conviction therefor.

PEOPLE V. VILLAHERMOSA
[JUNE 1, 2011] 186465

What constitutes corpus delicti in a buy bust operation?

Essentially, in a prosecution for illegal sale of dangerous drugs, like shabu in this case,
the following elements must concur: (1) the identity of the buyer and the seller, the object
and the consideration of the sale; and (2) the delivery of the thing sold and the payment
therefor. The commission of the offense of illegal sale of prohibited drugs requires merely
the consummation of the selling transaction, which happens the moment the buyer
receives the drug from the seller. Thus, what is material to a prosecution for illegal

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 law on evidence

sale of dangerous drugs is proof that the illicit transaction took place,
coupled with the presentation in court of thecorpus delicti or the illicit drug as
evidence. Such proof is present in this case.

Silverio, the poseur-buyer, positively identified appellant, who was caught in flagrante
delicto, to be the same person whom he saw and approached beside a store inside
the Manila South Cemetery inBarangay Sta. Cruz, Makati City, and who later on sold to
him two (2) small plastic sachets containing white crystalline substance for a
consideration of P400.00. Such white crystalline substance contained inside the two (2)
small plastic sachets handed to Silverio by appellant was confirmed to be
methamphetamine hydrochloride or shabu per Chemistry Report No. D-599-02 dated 1
November 2002 issued by the PNP Crime Laboratory. During trial, the two (2) small
plastic sachets containing white crystalline substance were presented in court, which
Silverio identified to be the same object sold to him by appellant as shown by the
markings found thereon representing his initials written by PO2 Tizon in his
presence. Silverio also identified in court the recovered buy-bust money from appellant,
which consists of four (4) pieces of P100 peso bills in the total amount of P400.00 with
markings “ASSJR” on the right collar of former President Manuel A. Roxas.

Furthermore, the testimony of Silverio clearly established in detail how his transaction
with appellant came about commencing from the moment he approached appellant and
expressed his intention of buying the goods appellant was selling, i.e., shabu, until the
time appellant handed him the two (2) small plastic sachets containing white crystalline
substance, which upon examination yielded positive results to the presence of
methamphetamine hydrochloride or shabu, and in exchange to that he handed appellant
four (4) pieces of P100.00 peso bills marked money amounting to P400.00 that
consummated the sale transaction between him and appellant.

Beyond cavil, the prosecution clearly established beyond reasonable doubt appellant’s
guilt for the offense of illegal sale of shabu, a dangerous drug, in violation of Section 5,
Article II of Republic Act No. 9165.

SEC. 4. Circumstantial evidence, when sufficient.—Circumstantial evidence is sufficient

for conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.(5)

Relate with Rule 128, Sec. 4

My suggestion is to memorize this section 4.

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

Collateral--not directly pointing to the cause of action or defense.

OUT-OF-COURT IDENTIFICATION, THE TOTALITY OF CIRCUMSTANCE TEST

1.Witness’ opportunity to view the criminal act at the time of the crime
2.Witness’ degree of attention at that time
3.The accuracy of any prior description given by the witness
4.The level of certainty demonstrated by the witness at the identification
5.The length of time between the crime and the identification

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 law on evidence

6. The suggestiveness of the identification procedure

res ipsa loquitur (The thing speaks for itself)- A procedural device which presumes that the
person is negligent, when he is in control of an instrumentality causing an injury in the absence of
some explanation by him.

CONCEPT OF FALSUS IN UNO, FALSUS IN OMNIBUS

Falsus in uno, falsus in omnibus (False in one thing, false in everything)- If the testimony of
the witness on a material issue is willfully false and given with an intention to deceive, court
may disregard all the witness’ testimony. (Not a mandatory rule of evidence)
- It deals only with the weight of evidence and not a positive rule of law
- The witnesses’ false or exaggerated statements on other matters shall not preclude
the acceptance of such evidence as is relieved from any sign of falsehood
- The court may accept and reject portions of the witness’ testimony depending on the
inherent credibility thereof.

SEC. 6. 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.(6)

May the court stop the introduction of further testimony? YES 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; this power should be exercised with caution. (Rule 133,
Section 6)

So you want to present 20 witnesses proving the same point. Nitestify na ang lima, tapos
magtestify kapag unom. So pde istop sa court. But this must be exercised with caution.

SEC. 7. 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.

How will the court dispose of a motion which is based on facts not appearing of record?
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, Section
7)

WHAT ARE EXAMPLES OF MOTIONS REQUIRING HEARING AND THEREFORE THE

PRESENTATION OF EVIDENCE?

 CRIMINAL CASES: Motion for bail (Under Criminal Procedure, the evidence taken up
during the hearing of the motion will form part automatically of the records of the case, so
there is no need to repeat in the trial what have been covered in the hearing of the
motion)

 CIVIL CASES:
1. Application for preliminary attachment/injunction
2. Motion to dismiss founded on certain facts which are not solely predicated on
absence of jurisdiction or

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 law on evidence

3. failure to state a Cause of action, i.e. it is predicated on the ground of

payment
(Same with Criminal Case, evidence taken up during hearing made part
automatically of records of the case)

So wala na, the caveat is to always read the notes of dean Inigo.

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