Stacey Dones Pederio

( Assigned Topic in Remedial Law)

M. Appeals (Rule 122, 123, 124 and 125)

Only final judgment and orders are appealable. A judgment is final if it completely disposes of the issues so
that nothing more is left to be done by the trial court or no further questions affecting the merits of the case remain
for adjudication (People vs. Virola, et al. 95 P 759).

An appeal by the prosecution from the order of dismissal of the criminality case by the trial court will not
constitute double jeopardy if:

A. The dismissal is made upon motion or with the express consent of the accused;
B. The dismissal is not an acquittal or based upon consideration of the evidence or of the merits of the
case; and
C. The question to be passed upon by the appellate court is purely legal so that should the dismissal be
found incorrect, the case would have to be remanded to the court of origin for it to determine the guilt
or innocence of the accused ( People vs. Desalisa, et al, L-15516)

A verbal notice does not perfect an appeal from the decision ( People vs. Natividad, et al. 63 P. 336) but if
in addition thereto a bail bond on appeal was filed by the accused, it has been held that there is substantial
compliance with the rules and appeal is perfected. This doctrine may still apply even if the accused did not post a
bail bond during the trial but only for purposes of his appeal.

Nota Bene

Procedure of Trial

At the Trial, the affidavits submitted by the parties shall constitute the direct testimonies of the witnesses
who executed the same. Witnesses who testified may be subjected to cross- examination, re-direct or re- cross
examination. Should the affiant fail to testify, his affidavit shall not be considered as competent evidence for the
party presenting the affidavit, but the adverse party may utilize the same for any admissible purpose.

The affidavits required to be submitted under this rule shall state only facts of direct personal knowledge
of the affiants which are admissible in evidence, and shall show their competence to testify to the matters stated
therein.

N. Search and Seizure (Rule 126)

Search warrants cannot be validly issued against chattels and effects of persons enjoying diplomatic
immunity pursuant to R.A. 75 which provides penal sanctions therefor. The determination of diplomatic immunity is
essentially a political question and courts should not look beyond a determination therefor by the executive branch
of the government and should accept the claim of immunity upon appropriate suggestion therefor by the Solgen.

The rules provide that a search warrant shall issue “ in connection with one specific offense” and further
direct that no ‘search warrant shall issue for more than one specific offense.” Unless such requirement are complied
with, it would be impossible for the issuing judge to determine the existence of probable cause. ( Castro, at al. vs.
Pabalan)
 Hence, where the search warrants averred the offenses in the abstract and, on top of that, compounded
that violation by not particularizing the effects to be search for and seized, the same are general warrants and are
null and void ( Burgos vs. Chief of Staff, GR No. 64261)

The remedies from an unlawful search are:

a. A motion to quash the search warrant; and

b. A motion to suppress as evidence the objects illegally taken.

Where the search warrant is a patent nullity, certiorari lies to nullity the same ( Marcelo, at al vs. De Guzman, L-
29077)

A search conducted at night without a direction to that effect is unlawful search ( Alvarez vs. CFI of Tayabas,
et al, 64 P.33). The same rule applies where the warrant left blank the time for making the search.

A public officer or employee who exceeds his authority or uses unnecessary severity in executing the
warrant is liable under Article 129 of the RPC.

The legality of the search must be distinguished from the validity of the search warrant issued therefor since
even if the search warrant is valid, the search may be illegal if the searching party exceeded its authority or violated
the directives in the search warrant.

O. Provisional Remedies in Criminal Cases (Rule 127)

Under the present rules, where the civil action is instituted where the criminal action, all provisional
remedies available in civil action may be availed of whenever the same are applicable. It therefor expressly
recognizes that in said criminal proceedings, the court may grant the provisional remedies of preliminary
attachment, preliminary injunction, appointment of a receiver, replevin, and support pendente lite.

Where the civil action arising from a criminal offense is suspended by filling of the criminal action the court
wherein said civil cases is pending can issue the aforesaid auxiliary writs since such orders do not involve a
determination of the merits of the case (babala vs. Abano, 90 P 827). It should be recalled however, that of no final
judgment has been rendered in the civil action, the same may be consolidated with the criminal action upon
application to the court trying the latter case.

VIII. EVIDENCE

A. General Principles
1. Proof vs. Evidence

Proof is not the evidence itself. There is proof only because of evidence. It is merely the probative effect of
evidence and is the conviction or persuasion of the mind resulting from a consideration of the evidence ( 29 Am
Jur 2d, Evidence).

Evidence is the medium or means by which a fact is proved or disproved. Proof is the effect of the evidence
because without evidence there is no poof (Black’s Law Dictionary). Bare allegations unsubstantiated by
evidence, are not equivalent to proof.

2. Burden of Proof vs. Burden of Evidence

 The burden of proof, or unos probandi, traditionally refers to the obligation of a party to the litigation to
persuade the court that he is entitled to relief.

Burden of Proof is the duty of a party to present evidence to establish his claim or defense by the amount
of evidence required by law, which is preponderance of evidence in civil cases. The party whether plaintiff or
defendant, who asserts the affirmative of the issues has the burden of proof to obtain a favorable judgment.

The burden of proof is fixed by the pleadings. The claim of the plaintiff which must prove, is spelled out in
his complaint. The defendants defenses which he must likewise prove are to be found in his answer to the complaint.
The burdens of proof of both parties do not shift during the course of the trial.

Burden of Evidence

The burden of evidence is the duty of the party to go forward with the evidence to overthrow the prima
facie evidence against him. The burden of going forward with the evidence may shift from one side to the other as
the exigencies of the trial require and shift with alternating frequency.

Bar 2004

Distinguish clearly but briefly between burden of proof and burden of evidence

Suggested Answer:

Burden of proof is the obligation 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 , while burden of evidence is the duty of a party to
go forward with the evidence to overthrow any prima facie presumption against him ( Bautista vs. Sarmiento, 138
SCRA 587).

3. Equipoise Rule

The equipoise doctrine is based on the principle that no one shall be deprived of life, liberty or property without
due process of law.

The doctrine refers to a situation where the evidence of the parties are evenly balanced or there is doubt on
which side the evidence preponderates. In this case the decision should be 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 render a verdict for the defendant.

In a criminal case, the equipoise rule provides that where the evidence is evenly balanced, the constitutional
presumption of innocence tilts the scales in favor of the accused ( People vs. Erquiza, GR. No. 171348).

B. Admissibility
1. Requisites

Factum probandum is the ultimate fact or the fact sought to be established; factum probans is the
evidentiary facts or the fact by which the factum probandum is to be established. The former refers to the
proposition while the latter refers to the material which establish that proposition ( Wigmore on Evidence, pp 5-6).

Requisites:

Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules (Sec. 3)
and it must have 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
of the fact in issue.

C. Object Evidence ( Rule 130 A)

When an object is relevant to the fact in issue, the court may acquire knowledge thereof by actually viewing the
object in which case such object becomes object (real) evidence, or by receiving testimonial evidence thereon.

Object (real) evidence includes any article or object which may be known or perceived by the use of any of the
senses. It includes the examination of the anatomy of the person or of any substance taken therefrom or the conduct
of tests, demonstration or experiments or the examination of representative portrayals of the object in question,
such as maps, diagrams or sketches, pictures or audio visual recordings, provided the same are properly
authenticated ( City of Manila vs. Cabangis, 10 Phil. 151).

D. Documentary Evidence (rule 130 B)

A document is a deed, instrument or other duly authorized paper by which something is proved, evidence
or set forth. Documentary evidence is that which is furnished by written instrument, inscription and documents
of all kinds.

The best evidence rule applied to documentary evidence operates as a rule of exclusion, that is secondary
evidence cannot inceptively be introduced as the original writing itself must be produced in court except in the
four instance (a) when it is lost or destroyed, (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 account and (d) when the original is a public record in the custody of a public
officer or is recorded in a public office.