BAR QUESTION (1994)
exists between the evidence sample and the reference sample.
At the trial of A for the violation of Dangerous Drugs Act, the
prosecution offered in evidence a photocopy of the marked
P100bills used in the buy-bust operation. A objects the presentation
of the photocopy on the ground that the Best Evidence Rule
prohibits the introduction of the secondary evidence in lieu of the
original.
Can the photocopy be admissible as evidence?
It boils down now on whether it is documentary or an object
evidence. If it is documentary evidence, the Best Evidence Rule
applies. If it is not, no need to apply the Best Evidence Rule.
The answer is the photocopy is object evidence. It is not
documentary evidence because it is not offered as proof of its
contents. Being object evidence, Best Evidence Rule does not apply.
BAR QUESTION (2005)
Q: May a private document be offered, and admitted in evidence
both as documentary evidence and object evidence?
Suggested Answer: Yes. A private document can be admitted both
as documentary evidence and object evidence. A document can also
be considered as an object for purposes of the case. Objects as
evidence are those addressed to the senses of the court. (Section 1,
Rule 130)
Documents as evidence consist of writing or any material containing
letters, words, numbers, figures, symbols or other modes of written
expressions offered as proof of their contents. (Section 2, Rule 130)
Hence, a private document may be presented as object evidence in
order to establish certain physical characteristics that are visible on
the paper and writings that comprise the document.
POSSIBLE BAR QUESTION
PEOPLE vs. VALLEJO (GR No. 144656, May 9, 2002)
(This is the first case that the SC convicted the accused on the basis
of DNA Evidence. After this case was decided, the SC kept on asking
for DNA evidence on related cases. This case also paved way to the
new Rule on DNA Evidence. This is a very important case.)
Vallejo was charged with raping and murdering a 9-year-old child.
The victim’s DNA samples from the bloodstained clothes of the
accused were admitted in evidence. Also, the DNA profile from the
vaginal swabs taken from the rape victim matched the accused’s
DNA profile. The high Court affirmed the accused’s conviction of
rape with homicide and sentenced him to death.
Held: DNA is an organic substance found in a person’s cells which
contains his or her genetic code. Except for identical twins, each
person’s DNA profile is distinct and unique.
When a crime is committed, material is collected from the scene of
the crime or from the victim’s body for the suspects DNA. This is the
evidence sample. The evidence sample is then matched with the
reference sample taken from the suspect and the victim.
The purpose of DNA testing is to ascertain whether an association
The samples collected are subjected to various chemical processes
to establish their profile.
The DNA test may yield THREE possible results (Possible Bar
Question):
1) EXCLUSION. The samples are different and therefore must have
originated from different sources. This conclusion is absolute and
requires no further analysis or discussion;
2) INCONCLUSIVE. It is not possible to be sure, based on the results
of the test, whether the samples have similar DNA types. This might
occur for a variety of reasons including degradation, contamination,
or failure of some aspect of the protocol. Various parts of the
analysis might then be repeated with the same or a different
sample, to obtain a more conclusive result; or
3) INCLUSION. The samples are similar, and could have originated
from the same source. In such a case, the samples are found to be
similar, the analyst proceeds to determine the statistical significance
of the similarity.
through further analysis. The possible margin of error should be
[accounted to?].
In assessing the probative value of DNA evidence, therefore, courts
should consider, among others things, the following data:
1. How the samples were collected;
2. How they were handled;
3. The possibility of contamination of the samples;
4. The procedure followed in analyzing the samples, whether
the proper standards and procedures were followed in
conducting the tests; and
5. The qualification of the analyst who conducted the tests.
WHEREFORE, in view of all the foregoing considerations, the
decision of the Regional Trial Court, Branch 88, Cavite City, finding
accused-appellant Gerrico Vallejo y Samartino alias Puke GUILTY
beyond reasonable doubt of the crime of Rape with Homicide and
sentencing him to the supreme penalty of DEATH and directing him
to indemnify the heirs of the victim in the amount of P100,000.00 as
civil indemnity and P50,000.00 as moral damages, is hereby
AFFIRMED.
(Bar Question)
PEOPLE vs. YATAR (GR No. 150224, May 19, 2004)
Yatar was convicted of the crime of Rape with Homicide. Testing
showed that the DNA of the sperm specimen from the vagina of the
victim was identical the semen to be that of appellant’s gene type.
Held: In Daubert v. Merrell Dow, it was ruled that pertinent evidence
based on scientifically valid principles could be used as long as it was
relevant and reliable. Judges, under Daubert, were allowed greater
discretion over which testimony they would allow at trial, including
the introduction of new kinds of scientific techniques. DNA typing is
one such novel procedure.
Under Philippine law, evidence is relevant when it relates directly to
a fact in issue as to induce belief in its existence or non-existence.
Applying the Daubert test to the case at bar, the DNA evidence
obtained through polymerase chain reaction (PCR) testing and
utilizing short tandem repeat (STR) analysis, and which was
appreciated by the court a quo is relevant and reliable since it is
reasonably based on scientifically valid principles of human genetics
and molecular biology.
Arguments of the Accused to exclude DNA Evidence in Pp. vs. Yatar:
Argument #1: 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
silent as well as his right against self-incrimination under Secs. 12
and 17 of Art. III of the Constitution.
Held: This contention is untenable. The kernel of the right is not
against all compulsion, but against testimonial compulsion. The 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 is part of object evidence.
We ruled in People v. Ronderothat 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.
Argument #2: Appellant further argues that the DNA tests
conducted by the prosecution against him are unconstitutional on
the ground that resort thereto is tantamount to the application of
an ex-post facto law.
Held:This argument is specious. No ex-post facto law is involved in
the case at bar. The science of DNA typing involves the admissibility,
relevance and reliability of the evidence obtained under the Rules of
Court. Whereas an ex-post facto law refers primarily to a question of
law, DNA profiling requires a factual determination of the probative
weight of the evidence presented.
TESTS (Bar Question):
1. The Frye Test (Frye vs. United States, 293 F. 1013, 1014 [D.
C. Cir. 1923])
2. The Daubert Test (Daubert vs. Merrell Dow
Pharmaceuticals, 509 U.S. 579 S.Ct. 2786 [1993]) as later
on expanded in Kumho Tire vs. Carmichael, 526 U.S. 137,
119 S.Ct. 1167 (1999)
BAR QUESTION (1997)
 When JZE loaned a sum of money to Bangs, JZE typed a
single copy of the promissory note, which they both
signed. JZE made two photocopies of the promissory note,
giving one copy to Bangs and retaining the other copy, JZE
entrusted the typewritten copy to his counsel for
safekeeping. The copy with JZE’s counsel was destroyed
when the law office was burned by Maja.
(a) In an action to collect the promissory note, which is
deemed to be the “original” copy?
Among the copies that existed, would it be the one kept by counsel?
Would it be the one that were mere photocopies?
(b) Can the photocopies in the hands of the parties be
considered “duplicate” originals?
Suggested Answers
(a) The original is the one typed and signed by both
parties and which was lost when the office of the
counsel of JZE was burned. It is the one the contents
of which is the subject of inquiry.
(b) The photocopies are not duplicate originals. They
cannot be deemed as having been made at the same
time with the original because they were not signed
unlike the original.
But what if this is what you do, you make one copy and then you
have it photocopied. Isa ra gyud imong gi-type, nagpa-photocopy
ka. Gipirmahan kadtong originally na gi-type nimo, gipirmahan pud
ang duha ka photocopy. Which one will be the original?
All of them will become original. So that’s the principle that you
need to remember. Originality therefore is not about form. Kung
unsa ba ang original, kung unsa ang photocopy. It depends now on
which of the documents have been authenticated by the signatures
of the parties. So if everything is signed, regardless of whether or
not photocopy lang tong uban na mga copies, well they’re all
originals because everything has been signed. That’s what we need
to remember.
Best Evidence Rule: A Misnomer (1994 Bar)
The term “Best Evidence” has been a source of misconception. It has
often been misunderstood and given a meaning it does not deserve.
Despite the word “best”, the rule does not proclaim itself as the
highest and most reliable evidence in the hierarchy of evidence. The
term “best” has nothing to do with the degree of its probative value
in relation to other types of evidence. It is not intended to mean the
“most superior” evidence. More accurately, it is the “original
document” rule, or the “primary evidence” rule.
Q: Why do we need to present the original? Why can we not present
mere duplicate copies?
RATIONALE: The underlying purpose of the best evidence rule is the
prevention of fraud or mistake in the proof of the contents of a
writing. This Rule is adopted for the prevention of fraud and is
declared to be essential to the pure administration of justice.
(Moran, Vol. 5, p. 12) If a party is in possession of such evidence and
withholds it, the presumption naturally arises that the better
evidence is withheld for fraudulent purposes. (Francisco, Rules of
Court, Vol. VII, Part I, pp. 121, 122)
BAR QUESTION (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 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 object or documentary evidence?
(b) Is the photocopy admissible in evidence?
How do you argue that it’s object or documentary evidence. You go
by definition, that’s the best thing to do it. But you need to
remember is what would be the subject of inquiry? If the subject of
inquiry would be the contents of a document, then you’re talking
about documentary evidence. But in a buy-bust operation, ang
marked money, are you so concerned what is written in the marked
money? Simply marked money is an object addressed to the senses
of the court. Of course, marked money here is an object. We’re not
talking about terms of a writing.
Answers:
(a) The photocopy is object evidence. It is not documentary
evidence because it is not offered as proof of its contents.
(b) Yes, the photocopy is admissible in evidence because the
best evidence rule does not apply to object or real
evidence.
DISTINCTIONS (Favorite source of BAR Qs)
MARITAL DISQUALIFICATION MARITAL PRIVILEGE
Can be invoked only if one of the Can be claimed WON the spouse
spouses is a party to the action is a party to the action
Applies only if the marriage is
Can be claimed even after the
existing at the time the
marriage has been dissolved
testimony is offered
Applies only to confidential
Constitutes a total prohibition
communications between the
against the spouse
spouses
BAR QUESTION:
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
had 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 DEF, the minor daughter of ABC by her first husband
who was a Filipino, was molested by XYZ earlier. Thus, ABC had filed
for legal separation from XYZ since last year.
Q: May the court admit testimony and affidavits of the wife, ABC,
against her husband, XYZ, in the criminal case involving child
prostitution? Reason.
YES. The court may admit the testimony and affidavits if the wife
against her husband in the criminal case where it involves child
prostitution of the wife’s daughter. It is not covered by the marital
disqualification rule. One exception thereof is where the crime is
committed by one against the other or the latter’s direct
descendants or ascendants. A crime by the husband against the
daughter is a crime against the wife and directly affects or vitally
impairs the conjugal relation. (Ordonio v Daquigan)
BAR QUESTION 1995:
Allan and Narita were married on August 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
Basilio, a married man. In 1992, Narita obtained a judicial decree of
nullity of 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 purportedly
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 ground of marital disqualification.
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. (Sec 22, Rule 130, Rules of Court)
2. Suppose Narita’s testimony as offered while the decision
nullifying her marriage to Allan was pending appeal, would your
answer be different?
NO. The answer would not be different and a valid objection may
still be interposed. 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
after, 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
(Allan) 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.
Yes. 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.
However, Riano posits that:
The testimony could not be validly objected upon by Basilio’s
counsel on the basis of the marital privileged communication 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
3rd person. This is clear from the provision: “…..cannot be examined
without the consent of the other…” (Sec. 24, Rule 130)
BAR QUESTION 2008:
A tugboat owned by Speedy Port Service, Inc. (SPS) sank in Manila
Bay while helping tow another vessel, drowning 5 of the crew in the
resulting shipwreck. At the maritime board inquiry, the 4 survivors
testified. SPS engaged Atty. Ely to defend it against potential claims
and to sue the company owning the other vessel for damages for to
the tug. Ely obtained signed statements from the survivors. He also
interviewed other persons, in some instance making memoranda.
The heirs of the 5 victims filed an action for damages against SPS.
Plaintiff 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.
Q: Is the contention tenable? Explain.
YES, considering that he was acting in his professional capacity in
bringing about the statement he obtained from the witnesses and
the memoranda he made. The notes, memoranda, and writings
made by the counsel in pursuance of his professional duty, form part
of his private and confidential files in the cases handled by him;
hence privileged.
BAR QUESTION 2014
Rene, bothered by his conscience, surrendered to the authorities
with his counsel. As his surrender was broadcasted all over media,
Rene opted to release his statement to the press which goes:
"I believe that I am entitled to the presumption of innocence until my
guilt is proven beyond reasonable doubt. Although I admit that I
performed acts that may take one's life away, I hope and pray that
justice will be served the right way. God bless us all”
Love, Rene
Q: Is this a confession?
Atty JZE: Is it a categorical and express acknowledgement of guilt
that is also unconditional and unqualified? Take note that he only
said “Although I admit that I performed acts that may take one's life
away” So it is not categorical. It is not constitutive of an offense.
A: No. Rene's statement is not a confession but an admission. A
confession is one wherein a person acknowledges his guilt of a
crime, which Rene did not do.
BAR QUESTION 2003
Homer Honesto Henson was charged with robbery. On the strength
of a warrant of arrest issued by the court, Homer Honesto Henson
was arrested by the police operatives. They seized from his person a
handgun. A charge for illegal possession of firearm was also filed
against him. In a press conference called by the police, Homer
Honesto Henson admitted that he had robbed the victim of jewelry
valued at P 500, 000.
The robbery and illegal possession of firearm cases were tried
jointly. The prosecution presented in evidence a newspaper clipping
of the report to the reporter who was present during the press
conference stating that Homer Honesto Henson admitted the
robbery. It likewise presented a certification of the PNP Firearms
and Explosive Office attesting that the accused had no license to
carry any firearm. The certifying officer, however, was not presented
as a witness. Both pieces of evidence were objected to by the
defense.
Question: Is the newspaper clipping admissible in evidence against
Homer Honesto Henson?
Suggested Answer:
Yes, the newspaper clipping is admissible in evidence against
Henson. Regardless of the truth or the falsity of a statement, the
hearsay rule does not apply and the statement may be shown where
the fact that it has been made is relevant. 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. (Gotesco Investment Corporation
vs. Chatto, 1992)
REQUISITES (Bar 1998) – Memorize!
PEOPLE vs. PALANAS
For a dying declaration to constitute an exception to the hearsay
evidence rule, four (4) conditions must concur:
(a) the declaration must concern the cause and
surrounding circumstances of the declarant’s
death;
(b) that at the time the declaration was made, the
declarant is conscious of his impending death;
 (c) the declarant was competent as a witness (if he BAR Question: At Nolan’s trial for possession and use of the
survived); and prohibited drug, known as “shabu”, his girlfriend Kim, testified that
on a particular day, he would see Noland very prim and proper, alert
the declaration is offered in a criminal case for Homicide, Murder, or and sharp, but that three days after, he would appear haggard, tired
Parricide where the declarant is the victim. and overly nervous at the slightest sound he would hear. Nolan
objects to the admissibility of Kim’s testimony on the ground that
Kim merely stated her opinion without having been first qualified as
expert witness. Should you, as judge, exclude the testimony of Kim?
Excited Utterances vs. Verbal Acts (possible Bar question)
Answer: No. The testimony of Kim should not be excluded. Even
Excited Utterances Verbal Acts though Kim is not an expert witness, Kim may testify on her
impressions of the emotion, behavior, condition or appearance of a
Principal fact is a startling Principal fact is an equivocal person. (Sec. 50, last par., Rule 130)
occurrence act

Statement may precede,

Statement must accompany
accompany or succeed the Bar Question 1995
the equivocal act
startling occurrence
Q: Explain the equipoise doctrine in the law of evidence and cite its
Statement need not Statement must explain the constitutional basis. (refer to previous discussion)
necessarily explain the principal fact and give it legal
principal fact significance

Possible Bar Question

Distinguish between recorded recollection and refreshing

recollection.
BAR Question: Dencio barged into the house of Marcela, tied her to
a chair and robbed her of assorted pieces of jewelry and money. Distinguish between past recollection recorded and present
Dencio then brought Candida, Marcela’s maid, to a bedroom where memory refreshed (sometimes present memory revived)
he raped her. Marcela could her Candida crying and pleading:
“Huwag! Maawa ka sa akin!” After raping Candida, Dencion fled
from the house with the loot. Candida then untied Marcela and
rushed to the police station about a kilometer away and told Police
Officer Roberto Maawa that Dencion had barged into the house of
Marcela, tied the latter to a chair and robbed her of her jewelry and
money. Candida also related to the police officer that despite her
pleas, Dencion had raped her. The policeman noticed that Candida
was hysterical and on the verge of collapse. Dencio was charged
with robbery with rape. During the trial, Candida can no longer be
located.

If the police officer will testify that he noticed Candida to be

hysterical and on the verge of collapse, would such testimony be
considered as opinion, hence, inadmissible? Explain.

UP Suggested Answer: No, it cannot be considered as opinion,

because he was testifying on what he actually observed. The last
paragraph of Section 50, Rule 130, Revised Rules of Evidence,
expressly provides that a witness may testify on his impressions of
the emotion, behavior, condition or appearance of a person.

-Although to my mind, mali ang pagkatubag nila. Still opinion, it’s

just that it is an admissible opinion. Pwede man siya, impression
lang gud na siya of a person. “In you opinion, what was she?” “She
was hysterical and on the verge of collapse.” Although you do know
that for a certainty, you did not physically examine her.