Вы находитесь на странице: 1из 55

EVIDENCE | EH 403 PRE-MIDTERMS ATTY.

TORREGOSA

RULES OF EVIDENCE Examples:


INTRODUCTION 1. Rumors/Chismis – Chismis can be a source of
information and it can be based on facts and reality.
Evidence is just a small part of the entire REM 1 , it only But as we all know, chismis, is not sanctioned by
involves 6 rules: Rules 128 to 133. Comparing it with civil the rules of court because it is hearsay which is
procedure, criminal procedure, provisional remedies, special information that is not based on one’s personal
civil actions and special proceedings, it covers very few rules. knowledge but based on the information that he
But this does not make the subject less important, especially obtained from someone else.
for those who want to venture into trial practice.
No matter how salacious, how truthful, and how
EVIDENCE DEFINED titillating the information may be, if it is not
RULE 128 SECTION 1. Evidence Defined. — Evidence is the sanctioned by the rules, it has no place in court. It
means, sanctioned by these rules, of ascertaining in a judicial cannot be a source of truth.
proceeding the truth respecting a matter of fact.
2. Coerced confession or a truthful voluntary
Characteristics / elements of evidence in the context of ROC2: confession but unassisted by a counsel – Say
1. It is just a means someone is arrested, and in the course of the
2. Sanctioned by the Rules interrogation, the subject voluntarily and truthfully
3. Applies only in judicial proceedings confessed to the crime but without the assistance
4. Purpose is to ascertain the truth of counsel. In the course of the interrogation, the
5. Truth respecting a matter of fact information revealed or disclosed by the subject
could be truthful, could be based on reality, but
IT IS JUST A MEANS because it is not sanctioned by the rules, it cannot
be used as truth, it cannot be used as a means of
Evidence vs. Proof ascertaining truth.
The Rules on Evidence is only a means to ascertain the truth,
and is never an end in itself. The end is the proof, thus Bottomline: Regardless of the truth or falsity of any
evidence and proof are different concepts. information, if it is not sanctioned by the rules, it cannot be
considered evidence in the parlance of the ROC
The evidence is just a means, the tools, the medium. Proof
on the other hand is the effect of evidence. But proof simply APPLIES ONLY IN JUDICIAL PROCEEDINGS
refers to the conviction or persuasion formed in the mind of
the judge as a result of consideration of the evidence GENERAL RULE: ROE can only be applied in judicial
presented. proceedings.

If you have the required quantum of evidence, then you may Judicial refers to court proceedings. Not quasi-judicial, not
have proof of a fact. There is a cause and effect relationship legislative, not quasi-legislative, not executive, not quasi-
between evidence and proof. executive or whatever. The rules of court strictly apply only
in court proceedings.
Illustration: If Ms. Centino suspects her boyfriend to be
cheating on her, do not make the mistake of demanding from When we talk about courts, we are referring to the SC
her a proof of such cheating act. You demand from her an created by the Constitution, and all other lower courts
evidence. So, if the boyfriend demands for proof, correct him created by statute: MTC, RTC, CA, CTA, SB.
and say ask me for evidence not proof, because the evidence
is the means of ascertaining the truth, it is not the proof. Example proceedings wherein ROE3 does not strictly
apply:
SANCTIONED BY THE RULES
1. Proceedings before quasi-judicial like labor arbiter
Not just any information that finds its way to the court is involving labor complaints filed by workers against
considered evidence. For whatever is offered as a source of their employers
information, it can only be considered evidence if that piece 2. Proceedings before the DARAB involving agrarian
of information is sanctioned by the ROC. This characteristic dispute.
simply refers to the requirement of competency. 3. Proceedings before the prosecutor’s office
undergoing preliminary investigation.
When is an evidence competent?
Evidence is competent when it is not excluded by any specific Estrada vs. Ombudsman; Philippine Deposit
rule, including the ROC. Whatever the source of information, Insurance Corp. vs Casimiro
how truthful it may be, if not sanctioned by the rules, then it These two cases involved criminal cases filed against certain
cannot be considered evidence and therefore, it cannot be government officials pending before the office of the
used as a means of ascertaining truth in a judicial ombudsman for the required preliminary investigations. The
proceeding. common issues raised and involved in these two cases is on
the admissibility of hearsay evidence.

1 3
Abbreviation for Remedial Law Abbreviation for Rules of Evidence
2
Abbreviation for Rules of Court

U S C L A W | Page 1 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

In Estrada, he objected to the admissibility of the counter- Ong Chia v. Republic of the Philippines
affidavits of his co-respondents, stating that he was not given This involves a petition for naturalization. During the trial, Mr.
or he was not allowed to have copy and confront the affiants Ong Chia presented truckloads of evidence to prove his
who executed the counter-affidavit. allegation that he possesses all of the qualifications and none
of the disqualifications to become a Filipino citizen. For one
In Casimiro, the respondents questioned the admissibility of reason or another, the prosecutor who represented the
the affidavit of one of the principal witnesses given that the interest of the state in the proceedings did not care to
affiant was not cross-examined and the information revealed present any evidence to controvert the evidence presented
in the affidavit was obviously not based on personal by Mr. Ong Chia. RTC granted the petition for naturalization,
knowledge. but the OSG appealed from the decision and questioned the
decision before the CA.
SC, taking cue from the rule that ROE do not strictly apply in
non-judicial proceedings, ruled that for purposes of In the proceedings before the CA, the OSG, for the first time,
preliminary investigation, even hearsay evidence is presented some evidence to controvert the evidence
admissible for purposes of having probable cause. Because presented by Mr. Ong Chia in RTC. Mr. Ong Chia objected to
probable cause in this case is based even on mere opinion or the introduction of this evidence, invoking another basic
belief of the investigating prosecutor. fundamental principle that the court shall consider no
evidence unless the evidence is formally offered and that the
EXCEPTION: RULE 1 SECTION 4 OF ROC offer should be made after the trial. In this case, since the
ROC (including ROE) does not apply specifically in [CLINE]: state did not present evidence during the trial, it had nothing
to formally offer when the case was still before the trial court.
1. Cadastral proceedings And because it presented evidence for the first time on
2. Land Registration appeal, obviously, it is in violation of the rule invoked by Mr.
3. Insolvency proceedings Ong Chia.
4. Naturalization proceedings
5. Election cases However, SC said that this is a naturalization proceeding and
by express provision of the rules, proceedings like this are
In these cases, the stringent rules of evidence are not strictly not strictly governed by the rules of evidence. And so even if
imposed. They have their own set of rules which serve as the the pieces of evidence presented for the first time on appeal
principal rules of procedure that govern their respective were not formally offered by OSG, supposedly in violation of
proceedings. the fundamental rule in procedure, the SC admitted and
considered them to form part of the judgment.
XPN TO XPN: ROC & ROE may be applied in non-judicial
proceedings or even in cases falling under Rule 1 Section 4 What happens if the case is just a normal civil action
but only by analogy or in suppletory character, whenever but there is an underlying issue regarding land
practical or convenient. registration? Would that be covered or excluded from
ROC?
Bantolino versus Coca-Cola Bottlers Co.
This is involving a complaint filed by several workers against TAKE NOTE: What characterizes the proceeding is the very
Coca-Cola Bottlers Co. for illegal dismissal. The defense of action itself. If it is an action like reconveyance, it is governed
respondent company was that there was no ER-EE by the ordinary procedure, then it falls under the general rule
relationship between the complainants and the company. But that it is governed by the rules of court as well as the rules
the labor arbiter ruled in favor of the complainants, holding of evidence. The exceptions to that general rule are specific.
that there existed an ER-EE relationship. This finding was
arrived at on the basis of the affidavits of the complainants. Atty: Assuming the dispute in Ong Chia was not
naturalization proceedings, if it was an ordinary collection of
Coca-Cola questioned the finding insofar as the existence of sums of money, so obviously, the CA was wrong, because it’s
ER-EE relationship contending that there was no basis for the a basic rule in procedure that evidence not formally offered
labor arbiter to give credence to the affidavits of the is not supposed to be admitted and considered.
complainants because the complainants were not presented
to confirm the contents of their respective affidavits, and So, if you are the counsel opposing the OSG, you can always
they were not subjected to cross-examination. Coca-Cola invoke that principle that it was wrong for the CA to admit
contends that there is a basic procedural rule that an affidavit and give credence to this piece of evidence in gross violation
is inadmissible for being hearsay unless the affiant is of the basic principle in procedure. If I were the SC, which I
presented and subjected to cross examination by the adverse am not, I would certainly castigate the CA for ignoring this
party against whom the affidavit is presented. very basic principle. Okay? But in this case, it is different
thing because it is really excluded from the coverage of the
But, SC said that the ROC, including the ROE, which adhere ROC.
to the principle that an affidavit is inadmissible as hearsay
unless the affiant is presented to confirm the contents of the PURPOSE IS TO ASCERTAIN THE TRUTH
affidavit and subjected to cross-examination is a principle
which strictly applies in judicial proceedings, not in Truth here has its own technical meaning. Were only talking
proceedings before administrative bodies like labor arbiter or here of legal truth, as distinguished from moral truth.
the NLRC.

U S C L A W | Page 2 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

Legal truth is that which evidence says it is. What your 2 TYPES OF FACTS IN EVIDENCE
evidence says, that’s your legal truth, it may not necessarily
be consistent with what actually happened. 1. Factum probandum – the ultimate fact to be
proved
Moral truth is when it is consistent with reality. When a
witness claimed that something happened, and that Examples:
statement coincided with what actually happened, then that’s a. In a rape case, the ultimate fact to be resolved
morally true. If that is also backed up by evidence, then that there is whether a crime of rape has been
is not only morally true, but as well as legally true. committed and that the accused is the one
responsible.
But in this imperfect world, we can’t always expect to have b. In a collection for sums of money, the factum
best of both worlds. It is not uncommon that a witness says probandum is that the defendant is indebted
something which is not morally true but only legally true to the plaintiff.
because it is supported by evidence.
2. Factum probans – the evidentiary facts or
Illustration: Your witness is arrested without warrant, and materials used to prove or support the factum
as a result, a search was conducted upon his person and probandum. This include the specific facts which
surroundings. Packs of shabu were recovered, and he when taken collectively, will be enough to support
confessed. He was prosecuted for illegal possession of illegal a conclusion that will establish factum probandum.
drugs. But during the trial, he your services as his lawyer.
Dr. Dela Llana vs. Biong
The accused, being truthful, he confided in you that “yes FACTS: This involves a civil action for damages arising from
attorney, I am a drug lord, and it’s true that I had these torts when the vehicle owned by Dr. Dela Llana got hit from
packs of shabu in my house. I’ve been storing them for a behind by the vehicle driven by the driver of Rebecca Biong.
while and I’ve been in the business for quite a time, but this As a result, it was claimed that Dr. Dela Llana suffered the
time I got busted.” so called “whiplash injury”. This is a kind of injury that one
normally suffers if he gets hit from behind.
Now what do you do as a lawyer? You may assail the validity
of arrest and the seizure because you know they were During the trial, factum probandum is “was the vehicular
without the benefit of judicial warrant. You only defend your accident the proximate cause of the plaintiff’s injury?” Dela
client from legal guilt, you have no choice but to object to Llana tried to prove the factum probandum by presenting 3
the presentation of the evidence presented by the factum probans or the evidentiary facts consisting of:
prosecution, even if the presentation of the evidence would
have been consistent with moral truth because indeed, and (1) photographs of the vehicle
your client confirmed it, he was guilty as hell. (2) the testimony of Dr. Dela Llana
(3) the medical certificate issued by the examining physician
Bottomline: Your concern is only to defend your client
against legal guilt. So, you invoke technicality, which under ISSUE: WON the factum probans presented by Dr. Dela Llana
the rules, makes your client innocent. That’s the dilemma were enough to support the factum probandum
that a lawyer lives in his life – always in a tug of war between
law and morality. So, if you think of practicing litigation and RULING: SC ruled in the negative. The SC said that as to the
trial practice, you should have the intestinal fortitude to first factum probans, the photograph, this evidence only
overcome your moral guilt. established the fact that the car was damaged as a result of
the accident. Second, as to the testimony of Dr. Dela Llana,
TRUTH RESPECTING A MATTER OF FACT it only established the circumstances of the accident and the
fact that she suffered injury as a result of the accident. And
Truth here should relate to the factual issues. If what as to the medical certificate, SC said that it has no probative
remains is only legal issue, take that evidence out of the value because the attending physician who prepared it was
picture because it has no place in the proceeding. not presented to confirm the contents of the report and
subject him to cross-examination. It’s hearsay.
That’s why we have remedies such as summary judgment
that is available in instances where no factual issues are The SC said that one of the critical elements for an action to
involved and what remains to be resolved by the court is tort to prosper is the evidence of causation. Now, the injury
question of law. And so, because there are no more factual complained of was the result of the negligence of the
issues, the court will dispense with the trial. respondent. Unfortunately for Dr. Dela Llana, she failed to
prove causation. In short, the factum probans presented
Take note, trial is intended for presentation of evidence to were insufficient to support the ultimate proposition sought
resolve factual issues. There being no factual issues, there is to be established.
no reason to go ahead with trial.
CLASSIFICATION OF EVIDENCE

It is essential to learn this because there are certain rules,


say, the application of the various exclusionary rules
provided for under the ROC that relate only to specific types

U S C L A W | Page 3 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

of evidence. Like the BER 4 does not apply to all types of DOCUMENTARY EVIDENCE
evidence, but only to documentary. It’s also possible that an RULE 130 SECTION 2. Documentary Evidence. — Documents
evidence can be considered as a documentary if offered for as evidence consist of writings, recordings, photographs or
a particular purpose but say object if offered for another any material containing letters, words, sounds, numbers,
purpose. figures, symbols, or their equivalent, or other modes of
written expression offered as proof of their contents.
Classifications: Photographs include still pictures, drawings, stored images,
1. Object, Documentary, Testimonial Evidence x-ray films, motion pictures or videos.
2. Direct and Circumstantial Evidence
3. Competent, Relevant, Material Evidence Not all documents are documentary evidence. What makes a
document a documentary evidence is that it is offered as
OBJECT, DOCUMENTARY, TESTIMONIAL EVIDENCE proof of the documents’ contents. If offered for something
OBJECT EVIDENCE else, not documentary evidence.
RULE 130 SECTION 1. Object as Evidence. — Objects as
evidence are those addressed to the senses of the court. TAKE NOTE: It is offered for the purpose of proving
When an object is relevant to the fact in issue, it may be the contents of the document because the contents
exhibited to, examined or viewed by the court. of it are the subject of inquiry.

Object evidence is that the type of evidence presented in Illustration: Let’s say there is a dispute involving A and B.
court for the court to view and observe. So, whatever is A claims that in page 5 of the book, the particular phrase
presented in court, the purpose of which is to allow the court “Our Father” is found. That’s the disputed portion of the
to subject the evidence to the court’s senses or observation book.
through all human faculty (smelling, tasting, smelling).
Here comes B who claims otherwise by saying that in page 5
TAKE NOTE: It is offered for the purpose of proving of the book, there is no “Our Father” stated, what is stated
the object’s existence and physical form. is “Our Mother”. So, there is now a question of accuracy
of the page 5 of the book.
Examples: A knife in a murder weapon, the injury of the
plaintiff in an action for damages arising from tort (could be Applying now the BER which peculiarly applies only to
the actual wound or a photograph of such wound), the stolen documentary evidence, the rule is to present the original so
item subject matter of the crime of theft. that we will know what is really found in page 5 of that book.
So, you offer the book to prove the contents.
2 Types of Object Evidence
1. Real Object Evidence – the actual thing which is Photograph as Demonstrative Object Evidence vs.
presented in court Photograph as Documentary Evidence
i.e. murder weapon it self
Documentary Evidence has been defined now as “any
2. Demonstrative Object Evidence – a replica, materials consisting of letters, words, figures numbers,
substitute, or representation of the real thing is the symbols or other forms of written expression which includes
one presented in court photographs.” So how do we now classify photo?
i.e. If during the investigation the arresting officer
took photos of the murder weapon, and upon the The classification of evidence depends largely on the purpose
storage of the thing it got lost, the prosecution may for which it is offered. A photo, is demonstrative object
present the photograph of the weapon provided evidence if offered to prove its existence or other external
that the purpose is to prove its existence. factors. But if offered to prove its contents, it’s documentary.

The classification of evidence as object does not really Illustration: There’s a photo of a man having sex with
depends so much on its physical form. It depends largely on another man. Mr. Asentista is sued by his wife for nullity of
the purpose as to why it is offered. That’s why you’ll not be marriage with psychological incapacity as a ground because
surprised if a book, which is normally offered as he is engaged in homosexuality. One of the pieces of
documentary, or a paper, but depending on the purpose, it evidence presented by the wife was a photo of a man naked
can verily be considered as object. and lying in bed in a sexual act with another man. As to what
classification was it offered?
Illustration: If you claim that a book is the murder weapon
and you want the court to appreciate how a book can kill, • If the purpose is to prove that a photo was taken
then it is essential for the court to view as to how the and such photo exists – Offered as object evidence
condition of the book as how it could be capable of being a • But if Mr. Asentista disputes the accuracy of the
murder weapon. Its thickness, size and hardness could be photo and now claims that it’s not him in the photo
the relevant characteristics that the court needs to examine but it’s Piolo Pascual, there is now a dispute over
and that can be done only if the book itself is presented as the accuracy of what really is found in the photo –
an object evidence, so that the court can now measure it, You may now offer it as a documentary evidence
touch it, or feel it. and pursuant to BER, you have to offer the original.

4
Abbreviation for Best Evidence Rule

U S C L A W | Page 4 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

Clarifications: DIRECT AND CIRCUMSTANTIAL EVIDENCE


• An evidence may be offered as object, DIRECT EVIDENCE
documentary, or testimonial in the same
proceeding, depending purely on the purpose of the Direct evidence is an evidence that directly proves a fact
offeror. However, we relate that to the principle of in issue without the need of an inference from other
multiple admissibility wherein evidence may be established facts.
admissible in one or two purposes, but inadmissible
in another Example: When a witness claims that he saw Mr. Asentista
• According to Atty, the BER of the recordings that rape Ms. Dasig, that’s an evidence that directly proves a fact
are classified as documentary evidence under the in issue; that a rape was committed and Mr. Asentista was
new rules is the voice recording itself or the original the one responsible for it. We don’t need other established
tape. But be wary of the so-called counterpart facts that need to support said witness’ testimony.
under the new rules wherein courts may also
consider counterparts if produced in same matrix, TAKE NOTE: You can prove a fact in issue not only by direct
the same impression of electronic or mechanical re- evidence but also by circumstantial evidence, especially if
recording or chemical reproduction or any there is no eyewitness readily available.
equivalent technique that produces the original
accurately. CIRCUMSTANTIAL EVIDENCE

TESTIMONIAL EVIDENCE Circumstantial evidence is an evidence that does not


directly prove a fact in issue but merely indirectly proves it,
Some literature will simply define this as an evidence that and this is only possible if there are other established facts
comes from the mouth of the witness. This is not accurate. that support it.
Again, the character of the evidence does not depend so
much on the form but on the purpose. 3 Forms of Circumstantial Evidence
1. Antecedent Circumstantial Evidence
Testimonial evidence, more accurately, refers to any 2. Concomitant or Contemporaneous Circumstantial
evidence where a witness conveys to the court his or her Evidence
recollection of past events that he or she perceived. 3. Subsequent Circumstantial Evidence

The manner of conveying it may vary into oral form or any ANTECEDENT CIRCUMSTANTIAL EVIDENCE
other form where communication is conveyed, such as sign
language, body language, or even in writing such as in Antecedent are circumstances which existed prior to the
judicial affidavits. fact in issue. So, if the fact in issue is about murder, your
antecedent evidence existed prior to the murder.
TAKE NOTE: It is offered for the purpose of conveying
the testimony to the court for the its appreciation. Common Types of Antecedent Circumstantial
Evidence:
Illustration: If Ms. Dasig is a victim of rape and the
prosecutor wants her to demo how the rape was committed 1. Motive – Motive is a circumstance that existed prior
because prosecutor wants the court to understand that the to the incident in question. If one has the motive,
rape was brutally done. This can be done by Ms. Dasig in the that may indirectly prove that one is a killer. But to
form of physically demonstrating it. It will be deemed as prove motive, you need other facts that you have
testimonial evidence although nothing came out from her to establish.
mouth because that body demo is a form of communicating
her testimony. To establish motive, you may present evidence that
a day prior to the killing, the victim and the accused
Judicial Affidavits (JA) had a very heated altercation, and in the course
A JA is testimonial in nature even if it does not come from thereof, the accused threatened to kill the victim.
the mouth of the witness, literally. But again, it depends on
the purpose of the offeror. If the JA asked the direct If you can establish the existence of the fight and
testimony of the witness, obviously it is testimonial. the fact that the accused threatened to kill the
But, let’s say there’s an issue as to the accuracy found in the victim, that would generate the motive.
statement of the JA. That in page 5 of the JA, in an answer TAKE NOTE: Standing alone, motive is not enough to
to the question “Did you enjoy the rape?”, the prosecution convict the accused. But if considered in tandem with other
said the answer was negative but the defense said it was a evidence and the totality of all evidence presented constitute
resounding yes. There’s now a dispute over the accuracy of proof beyond reasonable doubt of guilt, then it may be
the contents of the JA, and you may now offer it as enough to prove conviction.
documentary.
2. Bad Character
Or if you claim that the JA is the murder weapon, you may If Mr. Asentista is charged with the current rape of
offer it as object. Ms. Dasig, proof of Mr. Asentista’s character as a
serial rapist can be circumstantial evidence. You
may introduce Mr. Asentista’s past convictions for

U S C L A W | Page 5 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

the crimes of acts of lasciviousness, child abuse, 3. Concealment


child trafficking, etc. The character, sometimes, 4. Offer of compromise – For example, after the
determines your act. So, if he is proven to be a commission of rape, rapist offered to marry the
serial sex offender, that may be circumstantial victim. That’s admissible as an implied admission of
evidence that probably he is also guilty of the guilt. For no one in his right mind would offer
current crime of rape, of course subject to certain immediate marriage to a rape victim unless he was
rules on character (which will later be discussed in the one responsible for the rape.
the midterms).
COMPETENT, RELEVANT, MATERIAL EVIDENCE
3. Customs, practices, and habit
How is evidence used to ascertain truth in a judicial
CONCOMITANT OR CONTEMPORANEOUS proceeding?
CIRCUMSTANTIAL EVIDENCE
2 tests:
This include circumstances that existed contemporaneously 1. Admissibility – Admissibility is determined by
with the fact or incident in dispute. relevancy and competency.

Common Types of Concomitant or Contemporaneous Admissibility simply means that the court will accept
Circumstantial Evidence: and consider it. But as to whether the court will give
it credence or believe it, it’s a concern of the second
1. Opportunity – This means opportunity to commit test which is weight & sufficiency.
a crime. To establish, you need to prove his
presence at the crime scene at the time of the Admissibility is best explained by Wigmore’s 2
incident. Of course, standing alone, not enough. But axioms of admissibility namely: (a) That none but
if taken in tandem with others pieces of evidence, it facts having rational probative value are admissible;
may very well support the finding of guilt. and (b) That all facts having rational probative value
are admissible unless some specific rule forbids
Illustration: Let’s say a rape was committed but there was them.
no eyewitness that could identify that Mr. Asentista was the
rapist, but a witness was presented to testify that 2. Weight and sufficiency or credibility
immediately after Ms. Dasig cried for help, he saw Mr.
Asentista running away from the house of Ms. Dasig. But to be able to establish truth, you must prove not just the
Obviously, this is an evidence to establish opportunity admissibility but including its weight and sufficiency.
because around the time of the incident in question, the
evidence place Mr. Asentista at the crime scene. COMPETENCY

2. Incompatibility – This is the opposite of An evidence is competent when it is specifically not


opportunity; considered as absence of opportunity excluded by the Constitution, the Rules of Court, or some
to commit a crime. Common example of this is special laws. The test is in relation to a substantive law, rules
alibi. of pleadings, stipulations of the parties, admissions, and a
pre-trial order.
Illustration: Ms. Dasig claims that she was raped by Mr.
Asentista on Feb. 14, 2019 at her house in Junquera at RELEVANCY
around 8PM. The defense of Mr. Asentista is that he could
not have committed the crime because in the said date and An evidence is considered relevant when it has tendency in
time, he was in Jolo, Sulu. If indeed Mr. Asentista will be able reason to establish a probability or improbability of a fact in
to prove his presence in Sulu at that time, science would tell issue. Anything that can help the court in resolving the issue
us the principle that no one can be at the same place at the in the case is relevant. It throws light upon the issue by
same time. And thus, it is a circumstantial evidence of applying the test of common sense, logic, and human
incompatibility. experience.

SUBSEQUENT CIRCUMSTANTIAL EVIDENCE Illustration: In a prosecution for rape, one of the pieces of
evidence that the prosecution proposes to present is an
This include circumstances that took place after the fact or underwear with bears the embroidered nickname of Mr.
incident in question. Asentista, “RR with love.” It is claimed that this underwear
was found immediately in the crime scene. It is logical to
Common Types of Subsequent Circumstantial conclude that based on the underwear found at the crime
Evidence: scene, Mr. Asentista is probably guilty of the commission of
rape. (TN: only probability is required, not absolute
1. Flight – If a crime was committed and for without certainty) Hence, considered as relevant evidence.
any justifiable reason you just disappeared from
your usual place of habitat, something is amiss. On the other hand, Mr. Asentista presented in his evidence
Flight is an evidence of guilt. that he has so many girlfriends because he is a playboy. That
2. Nervousness is considered as in irrelevant evidence because logic,

U S C L A W | Page 6 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

common sense, and human experience will not support the Materiality – is it a requirement for admissibility?
fact that just because Mr. Asentista had so many girlfriends Relevancy is viewed in 2 senses: restrictive and broad.
in his life, he could not have committed the crime of rape.
His evidence is very remote from the issue. 1. Restrictive – relevancy is equal to probativeness
only; it should be something that sheds light upon
Heesen vs. Lopez the issue
Civil action for damages arising from the accidental firing of 2. Broad – relevancy is composed of probative value
the rifle. When Mr. Heesen went deer-hunting, his rifle (the restrictive view) and materiality.
accidentally fired, thereafter hitting Mr. Lopez. Thus, Mr.
Lopez sued Mr. Heesen and the merchant store that sold the TAKE NOTE: Our concept of relevancy is the second one,
rifle. Mr. Lopez theorizes that the cause of the accident was the broad view. But in our rules, materiality is considered to
the defective design of the safety mechanism when it be subsumed by relevancy. In the final analysis, for an
suddenly switches from safety to firing position. evidence to be considered relevant, it should also be
material.
Factum probandum: WON the design of the safety
mechanism of the rifle is defective Illustration 1: Relevant but Immaterial
In an action for collection of sums of money based in an
By way of defense, defendants presented an expert witness actionable document filed by Mr. Asentista against Ms. Dasig,
on gun-making who testified that throughout the years of the and he appended to the complaint the promissory note (PN)
commercial existence of the manufacturer of rifle and allegedly signed by Ms. Dasig.
manufacturer of safety mechanism, they have never been
sued for defective design. This was objected purportedly on You were taught in your Civ Pro that if a complaint is based
the ground of irrelevance. But SC overruled the objection and on an actionable document and the defendant wishes to
ruled that the good reputation of the manufacturers throw deny the genuineness and due execution of the actionable
light upon the issue. Because if the contention is that of document (PN), you should do it under oath. Specific denial
defective designs being manufactured, then logic, common is not enough, it should also be verified under oath.
sense, and human experience would tell us that there would Otherwise, the effect would be an implied admission of the
have been other similar complaints based on the same genuineness and due execution of the actionable document.
ground. Thus, the expert testimony was considered relevant. Once admitted, it is no longer an issue in the case. And thus,
any evidence offered to prove such fact is immaterial.
Missouri vs. Bull
This is a prosecution of robbery against Arthur Bull, who was So, during the trial, Ms. Dasig cannot present (or even if she
arrested 3 weeks from the time he got released from prison. presents, it can be objected to) evidence or testimony of the
A jewelry store got robbed, Arthur was arrested, and during NBI handwriting expert saying that the signature in the PN
the arrest, the police were able to recover some dollar bills forged. She is already barred because of her initial failure to
and coins. These dollar bills were offered as evidence to specifically deny it under oath.
prove that Arthur was the one responsible for the crime. This
was objected to on the ground of irrelevance. Here, while the evidence is considered relevant because if
the PN, which is the basis of the action, is forged, then logic
SC sustained the objection and said that the fact that Arthur would tell us that probably Ms. Dasig is not at all indebted to
was in possession of certain dollar bills does not establish the Mr. Asentista as it was someone else who signed the
probability that he was the one who robbed the store. Not a document. However, it is immaterial because if offered, it will
single evidence was offered to prove that those dollar bills only prove a fact which is NO LONGER AN ISSUE as it has
possess by Arthur were the same dollar bills taken from the already been deemed admitted. Finally, the admissibility in
vault of the store. All dollar bills of the same denomination this situation is determined based on the rule on pleadings,
are alike. specifically on the rule of specific denial under oath.

Also, just because Arthur was just released in prison, jobless, Illustration 2: Material but Irrelevant
and penniless, does not shed light upon the issue of whether Missouri vs. Bull
he was the one responsible for robbery. SC is in effect saying If evidence is offered consisting of the fact that the accused
that one’s financial condition does not throw light upon the is poor to prove that he was the one who robbed the store,
issue on the matter of robbery. it is considered material because it is offered to prove a fact
in issue. The issue in a robbery case being: WON a robbery
MATERIALITY was committed and the accused was the one responsible.

An evidence is considered material if offered to prove a fact However, to reiterate, just because Arthur was just released
in issue. As opposed to relevant evidence which is defined as in prison, jobless, and penniless, does not shed light upon
and evidence which has tendency in reason to establish a the issue of whether he was the one responsible for robbery.
probability or improbability of a fact in issue. SC is in effect saying that one’s financial condition does not
throw light upon the issue on the matter of robbery.
So, understood individually, relevancy is different from
materiality. It is possible that an evidence is relevant but
immaterial, or irrelevant but material.

U S C L A W | Page 7 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

TYPES OF ADMISSIBILITY was only offered to prove the fact of completion not the fact
MULTIPLE ADMISSIBILITY of delay and therefore it cannot be admitted to prove the fact
of delay. It can only be admitted to prove the fact of
Multiple admissibility is an evidentiary principle which completion. In the end, the project owner was not able to
demonstrates the importance of purpose for which an prove their counter-claim for liquidated damages for failure
evidence is offered. Under this principle, an evidence may be to establish the fact of delay.
admissible for one purpose and inadmissible for another
purpose. CONDITIONAL ADMISSIBILITY

That is why a formal offer of an evidence requires that the Conditional admissibility applies when a proponent offers
proponent should specify the purpose for which the evidence an evidence something which is not admissible but the court
is offered. Failure to specify the purpose would justify the may allow it conditionally provided that the proponent will
exclusion of such evidence because without such purpose, may be able to establish later the relevance of that piece of
there is no way that the court may determine if the evidence evidence.
is admissible or not.
Illustration: You are the prosecutor in the crime of murder.
People vs. Yatco There are 3 suspects, you want to offer the extrajudicial
There was a murder committed and 3 persons were confession of one of the suspects. You know that under the
suspected. One of them got arrested and during the custodial res inter alios acta rule, confession of one suspect is not
investigation, he executed an extrajudicial confession admissible to bind the other suspect. However, there are
admitting to his culpability and incriminated the other exceptions to this rule and one of this is admission by co-
suspects. During the trial, when an evidence was presented conspirator and for this exception to apply there has to be
to prove the existence of extrajudicial confession, RTC independent evidence of conspiracy. Without the
excluded the evidence on the ground that it does not bind independent evidence of conspiracy, the admission by a
the other 2 accused who did not make the confession. conspirator may not be admissible against the co-
conspirator. In actual practice, if you are the proponent, you
SC, however, said that the extrajudicial confession is have to first establish the existence of conspiracy by
admissible insofar as the confessant, the one who executed independent evidence other than the admission.
the confession, is concerned but inadmissible if the purpose
is to incriminate the other accused, because if it is offered to Now, suppose your evidence for establishing conspiracy is
establish the guilt of the other accused the accused who did not available at the time you are called to present your
not make an extrajudicial confession, the piece of witness, and the court directs you to start now otherwise the
extrajudicial confession is inadmissible under the res inter court will dismiss your case.
alios acta rule which says that the right of a party cannot
be prejudiced by the act, declaration, or omission made by So, what you do is invoke conditional admissibility and argue
another. that you are able to establish later the independent evidence
of conspiracy. Otherwise, you will be forced to present
Uniwide Sales vs. Titan Aikeda evidence to prove the extrajudicial confession of one the co-
This involves a construction contract where the contractor conspirator but it will be objected to as inadmissible on the
undertook to build three projects for the owner, Uniwide ground that there is no independent evidence yet of
Sales. Under their construction agreement, the contractor conspiracy.
was to complete the construction of the project within a
certain period. So, the date of completion was expressly CURATIVE ADMISSIBILITY
stipulated in the contract. But for reasons only known to the
contractor, the completion of the project got delayed but Curative admissibility allows the adverse party affected
although it was eventually completed. When the project by the admission of the other party’s inadmissible evidence,
owner did not pay the balance, a dispute occurred between which was earlier erroneously admitted by the court, to
the two. present an equally inadmissible evidence to cure that
damage sustained. It’s like saying “Judge, you erred in
During the proceedings the project engineer testified and his admitting that evidence, you should also err in admitting
testimony has established the fact that the project subject of ours.”
the contract was indeed completed on this particular date.
The project owner, on the other hand, tried to make use of When the court admits evidence that is inadmissible, then
the same testimony of the project engineer and argued that the other party can also forward their own inadmissible
based on the testimony of the project engineer there was evidence to balance things out.
indeed a delay. And under the contract, the contractor is
liable to pay liquidated damages. The project owner TAKE NOTE: The adverse part invoking the curative
interposed a counter-claim for liquidated damages, the admissibility of their inadmissible evidence must have
action was for the collection of the balance of the contract objected to the admission of the inadmissible evidence. So,
price. the party must be vigilant in objecting because exclusionary
rules are not self-executing principles, they have to be
The SC, in applying the multiple admissibility rule, said that invoked by the party concerned. Without the objection, it
while it may be true that the project engineer testified the amounts to a waiver of the benefit of the exclusionary rule.
project was completed on this particular date, that testimony

U S C L A W | Page 8 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

Illustration: Suppose Mr. Asentista filed a collection for How come the right to due process can be invoked by
sumS of money against Ms. Dasig. To prove that Ms Dasig is an employee against his employer, a private citizen?
indebted to him he presented a witness, Ms. Centino, to
testify that she (Ms. Centino) had a conversation with Atty. Atty: One justification for this seeming exception is due to
Gravador and in that coffee session, Atty. Gravador told her the fact that the procedural due process (the notice and
that Ms. Dasig confided to Atty. Gravador that indeed Ms hearing requirement) applicable in labor disciplinary cases is
Dasig is indebted to Mr. Asentista. statutory in origin referred to under the Labor code and its
IRR. This right to procedural due process is provided for
Obviously, the testimony of Ms. Centino is inadmissible for under the statute.
being hearsay because it was only Atty. Gravador who told
her. But for sheer ignorance, the court, over the objection of So, when the legislative enacted the Labor Code that requires
the counsel of Ms. Dasig, however allowed Ms. Centino to the twin notice as an indispensable requirement for due
testify. process, the state is in effect making the exception to the
general rule that the bill of rights can only be invoked against
This erroneous ruling of the court in allowing Ms Centino to the state.
testify gives rise to Ms. Dasig’s equal right to present an
inadmissible evidence to counter the effect of that evidence TAKE NOTE: With respect to Secs. 12 and 17, the SC
erroneously admitted. So maybe in her turn, Ms. Dasig can consistently held that these rights can only be invoked
also present Mr. X as a witness to testify that during his (Mr. against the state or state’s action.
X) conversation with Mr. Y, the latter told Mr. X that Ms.
Dasig told Mr. Y that she did not owe a thing to Mr. Asentista. RIGHT AGAINST UNREASONABLE SEARCH &
The court cannot deny Ms. Dasig the same benefit because SEIZURE
the court already accommodated the same type of evidence
in favor of Mr. Asentista. Atty: With regard to Sections 2 & 3, these two rights are
closely related. In fact, the right against unreasonable search
EXCLUSIONARY RULES and seizure is based on the individual’s right to privacy.

1. Exclusionary Rules under the Rules of Court Where do we apply for a search warrant?
2. Exclusionary Rules under the Constitution GR: Sec 2. Rule 126 of the rules on criminal procedure
3. Exclusionary Rules under Special Laws provides that an application for search warrant should be
filed with the court within whose territorial jurisdiction the
EXCLUSIONARY RULES UNDER THE CONSTITUTION crime has been committed.

EXCLUSIONARY RULE: These 4 rights under the bill of Illustration: If the crime is committed within the territory
rights uniformly provide for the rule that any evidence of Cebu, the application for search warrant should be filed in
obtained in violation of these rights is inadmissible in the RTC of Cebu and not the RTC of Lapu-Lapu or Mandaue.
any proceeding and for any other purpose.
XPNs:
Under Article III, the Bill of Rights include: 1. Administrative matter on special rules in
1. Right against searches and seizures (Sec. 2) application of search warrant involving
2. Right to privacy and inviolability of correspondence special criminal cases.
(Sec. 3)
3. Custodial rights during custodial investigation (Sec. Under this administrative matter, the executive judges of
12) RTC Manila and RTC QC or with their absence, their vice-
4. Right against self-incrimination (Sec. 17) executive judges, have the authority to issue search
warrants, enforceable anywhere within the Philippines with
These 4 constitutional exclusionary rules can only be invoked regard to the following cases:
against the state or state’s actions. The authority for this rule
is the trail blazing case of People v. Marti and reiterated in a. Heinous crimes
several successive cases like People v. Maceda, Waterous b. Illegal gambling
Drugs v. NLRC, People v. Bongcarawan. c. Violation of comprehensive dangerous acts
d. Illegal possession of firearm and ammunition
People vs. Marti e. Illegal trafficking
The only issue involved is the right against unreasonable f. Violation of Anti-Money Laundering act
searches and seizures. But in the decision of the SC, it made g. Customs and tariff code
a very sweeping finding that the purpose of the bill of rights
is to limit the state’s vast power over its citizens, that is why People vs. Punzalan
it can only be invoked against the state’s actions and not The executive judge of Manila RTC issued a search warrant
against individual private citizens. in connection with an offense committed in Pasay City. It
may be that the RTC of Manila has no territorial jurisdiction
over Pasay City, but it was issued in connection with the
violation of comprehensive dangerous drug act.

U S C L A W | Page 9 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

The accused, interposed as one of his defenses that the Report of the Partial Results of the Spot Audit of RTC
warrant was invalid because it was issued by the wrong Branch 70 Malabon City
court. SC invoked the recently enacted administrative matter, It involves an administrative complaint against the presiding
admitting the validity of the issued search warrant issued by judge for allegedly issuing search warrants which were
RTC Manila which is enforceable anywhere in the Philippines. enforced outside of its territorial jurisdiction, the SC said that
the application for search warrant is mandatory violation of
2. Paragraph (b) of Section 2, Rule 126 – which which would render the search warrant defective. But since
provides that for compelling reason stated in the this case is an administrative proceeding, it is not the proper
application, an application for search warrant may venue to litigate the issue on the propriety of the issuance of
be filed within any court within the judicial region the search warrant.
where the crime was committed if the place of
commission is known or if not known, any court of Compelling Reasons
the same judicial region where the search warrant People v. Tiu
is to be enforced. Doctrine: Possible leakage of information can be a valid
compelling reason to invoke the exception, provided that the
Judicial Region compelling reason should be stated in the application for
The Philippines is divided into 13 judicial regions. Cebu, search warrant.
Bohol, Dumaguete and Siquijor belong to 7th judicial region.
In this case, the crime was committed in Pasay City but the
Under this exception, so long as there is justifiable or application for search warrant was filed in Quezon city,
compelling reason which should be stated in the application, different territorial jurisdiction. But here, it was alleged that
if the crime is committed in Cebu, you can apply for search the accused was a person of high influence in the place
warrant in any court within the 7th judicial region. where the crime was committed, so there was a possibility
If the place of the commission is not known, the application of the leakage of information and SC upheld the validity of
should be in the place of enforcement. So, the crime may search warrant under the exception.
have been committed in Cebu but the search warrant is to
be enforced in Siquijor. In such case, you can apply the VALID SEARCH AND SEIZURES
search warrant in Siquijor.
GENERAL RULE: Seizure can only be valid if made pursuant
Pilipinas Shell Petroleum Corporation vs. Romar’s to a judicial warrant. So, the presumption is: any search
International Gases Corporation without a judicial warrant is unconstitutional. Any evidence
SC affirmed the mandatory nature of the rule on venue, that seized in the course thereof is inadmissible.
the application for search warrant shall only be filed with the
court within whose territorial jurisdiction the crime was EXCEPTIONS: Cases falling under valid warrantless search
committed. Failure to comply with this requirement would 1. Evidence in plain view
render the search warrant defective and may be quashed by 2. Search incidental to lawful arrest
the court upon motion by the interested party, without 3. Checkpoints
prejudice to the exception under par (b) Sec 2. 4. Stop and frisk / Terry search
5. Consented search
In this case, the crime was committed in Iriga City, but the 6. Emergency search
application for search warrant was filed in Naga City, a 7. Moving vehicles
different territorial jurisdiction. SC said it’s defective. 8. Customs search
However, the SC refused to nullify the search warrant and
ruled that while the venue on the application for search DOCTRINE OF EVIDENCE IN PLAIN VIEW
warrant is mandatory, it is not however jurisdictional.
Requisites:
The rule on venue in criminal cases is jurisdictional. But the 1. Prior valid justification for intrusion
rule on venue in application for search warrant is different 2. Inadvertent discovery of evidence
from the rule on venue in criminal cases because an 3. The incriminating nature of the evidence must be
application for search warrant is not a criminal case, immediately apparent to the seizing officer
it is only a criminal process. So, if is not jurisdictional, it
can be waived. PRIOR VALID INTRUSION

In this case, respondent failed to move for the quashal of the Prior valid intrusion of the police officer effecting the search
search warrant at the first opportunity, he only raised the is a requisite. His presence in the area where warrantless
argument on violation on rule on venue in the application for search is being enforced must be for a legitimate purpose.
search warrant when it filed a motion for reconsideration. This is when his presence is pursuant to a search warrant or
Now knowing the Omnibus Motion Rule, the respondent a warrantless search after a valid arrest. So, inside the house,
merely invoked the ground of absence of probable cause, not evidence in plain view may be seized without the need of
defect on the venue. Thus, by the failure of respondent to another search warrant.
raise it at the first opportunity, the action or ground is now
deemed waived. Prior valid intrusion also include a situation that when a
search warrant is implemented, in the sense that the purpose
of the search warrant was already accomplished, any further

U S C L A W | Page 10 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

search of any incriminating object may not be justified under for, even if it is incriminating at first glance, it cannot be
plain view. justified under evidence in plain view.

People vs Salanguit People vs Musa


The search warrant was for the seizure of undetermined The police conducted buy-bust operation outside the house
quantity of shabu and shabu paraphernalia. Then of Mr. Musa. After the posuer buyer handed the money to
presumably after the seizure of the paraphernalia, the Musa, Musa accepted the money and returned to his house
officers continued the search and eventually discovered dried to get the illegal drugs so he returned, they body searched
marijuana leaves wrapped in a newspaper. The seizure of the Mr. Musa but yielded negative in finding the marked money.
dried marijuana leaves was sought to be justified under plain
view, but SC enunciated the rule that when the purpose of Mr. Musa said he left it inside, so the arresting officer barged
the search has already been accomplished, any further in the house of Musa to search for the money and saw a red
search is already unjustified. In that sense, any further plastic hanging over the kitchen. They asked Musa what is
intrusion may not be justified. inside the plastic, and it turned out that it contains marijuana.

SC here presumed that the dried marijuana leaves not The admission this evidence was sought by the prosecution
mentioned in the search warrants was last found by the under plain view. When the police officer was looking for the
police officer. SC held that since the police officer marked money, the police officer by chance or inadvertently
implementing the search warrant knew where to locate the just stumbled upon the marijuana.
shabu and shabu paraphernalia, then it is reasonable to
assume that it was only after the accomplishment of the SC invoked the requirement of the law that it should not be
purpose that the police proceeded to turn the house upside specifically sought for. When the police officer went inside
down that they eventually discovered the dried marijuana and proceeded to the kitchen, their purpose was to look for
leaves. Failure to comply, the dried marijuana leaves were incriminating object although supposed purpose was only to
rendered inadmissible. look for the marked money. SC said it was not inadvertently
discovered.
Q: Would the ruling change if the flow of the findings
was shabu => marijuana => shabu? Q: Was there a valid intrusion in the first place inside
the house of Musa after he was caught outside?
Atty: [Implied yes] The wording of SC said "any further Apply search incidental to lawful arrest. Search can be made
search," so it contemplates a situation that the purpose of in the body of the person and his immediate surroundings. It
the warrant has already been accomplished. In your factual can be considered that the house is within the immediate
situation, it contemplates that the discovery of both took surrounding of Mr. Musa. Maybe it can be justified to that
place simultaneously or that there has yet to be an effect.
accomplishment of the search as it is not yet done. The
operative fact is that the purpose has already been THE INCRIMINATING NATURE OF THE EVIDENCE
accomplished. MUST BE IMMEDIATELY APPARENT TO THE SEIZING
OFFICER
To beat Salanguit, do not admit that the purpose of the
search has already been accomplished while the other things Meaning, the incriminating nature must be observable by the
has discovered. Maybe you slant the facts a little stating that, senses of the seizing officer. Senses here doesn’t only pertain
before we discovered the shabu, we stumbled upon an to sight but all the faculties of human senses such as hearing
immediately incriminating object. and smelling, among others.

What if there is a container with a label marijuana but People vs Claudio


there is no marijuana inside? When the police officer chanced upon a girl on a bus who
Still not valid as the criminality is not apparent. The name or seated herself in front of him, feeling suspicious, he dipped
label alone does not suggest criminality. his finger into the buri bag carried by the woman. He smelled
it but turned out he smelled something else, it is marijuana.
At what point the presumption of regularity in Meaning, personal knowledge to the crime committed does
applying the search warrant applicable? not only come from the knowledge by sight but all acquired
GR: There is a presumption of regularity by out different senses.
XPN: Presumption ceases to operate when you can establish
violation of the rules. When is an object immediately incriminating?
When its nature is immediately observable by the seizing
Once the exception lies, it is now incumbent upon the police officer. This happens when the object is not placed in a
officer to justify that the procedure was still regularly closed container or receptacle. Or even if it is placed in a
implemented. closed container or receptacle, it can still be considered
immediately apparent when the receptacle portrays its
INADVERTENT DISCOVERY OF EVIDENCE contents like when the receptacle is transparent or
determinable by distinctive configuration.
Item must not be specifically sought for by the seizing officer,
it is discovered by chance. If the item was specifically sought Example: An armalite in a sack, that will surely expose its
distinctive configuration.

U S C L A W | Page 11 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

SEARCH INCIDENTAL TO LAWFUL ARREST SC saw it the other way. Amminudin is not the authority in
this case. This is the reverse. Amminudin involved a search
This contemplates a situation where lawful arrest preceeds proceeded after the arrest. In Quebral this is the opposite.
the search only. Arrest may be by virtue of warrantless arrest The envelope was seized first and then there was arrest.
or with a valid arrest warrant.
In in flagrante delicto, there should be an overt act indicative
Instances of valid warrantless arrest of the crime. But if the search preceeds the arrest, the overt
Section 5, Rule 113 act required under in flagrante is not required, what is being
required is probable cause. And probable cause may not
1. In flagrante delicto arrest be based on personal knowledge of the overt acts indicating
2. Hot pursuit arrest that the crime was committed, it may be sufficient that the
3. Arrest of a fugitive or escapee information just came from a confidential informant, which is
4. Search with probable cause preceeding the arrest hearsay, but corroborated with actual actuations in the field
being personally observed by the searching officer.
IN FLAGRANTE DELICTO
The probable cause is the call of the informant and the
Requisites: personal knowledge of the police officers when they saw the
1. The person to be arrested must execute an over act jeepney and people involved whose descriptions fit the
indicating that he has just committed, or is actually description given by the confidential informant. So, in this
committing or is attempting to commit a crime, and case of Quebral, SC affirmed the admissibility if the
2. Personal knowledge of the police office – such overt act is marijuana without the search warrant.
done in the presence of within the view of the arresting
officer. Bottomline: Quebral is a situation opposite to Amminudin,
in no way you can apply one to the other.
Overt Act
There should be specific performed act that suggest crime. Personal Knowledge of the Overt Acts
The overt acts are performed by the person to be arrested in
People vs. Amminudin the presence or view of the arresting officer. Short of these,
Here, the act does not suggest that a crime was committed the arrest cannot be justified under in flagrante delicto.
by a person merely disembarking from a vessel, walking
through a gangplank because at that time the police didn’t Clarifications:
know yet the contents of the bag that Amminudin was • The way Amminudin was decided was anchored on
carrying. the requirement of overt act. The matter on their
failure to obtain search warrant when they could
People vs. Mengote have possibly done so was only an additional
Here, it does not also suggest that crime has been committed justification.
by someone looking side to side holding his abdomen. No • If you are the police officer, you can just invoke the
overt act was indicative that a crime was, is, and about to be Quebral case to at least get away with the
committed. irregularity of requisites under in flagrante delicto.
• Probable cause is really subjective, as long as there
People vs. Sy-Chua is a basis of reasonable suspicion. It is a case to
Same principle here, because no overt act of a commission case basis.
of a crime was established for someone who just alighted
from his car bringing along with him zest-o juice bags and SEARCH (THROUGH PROBABLE CAUSE)
walking towards lobby of a hotel. PRECEEDING THE ARREST

People vs. Quebral – Search Preceeding the Arrest TAKE NOTE: Here, you can conduct extensive search.
Here, on the day of the arrest, the police got a tip information
that 2 men and a woman will meet in a certain place to do a Example 1: Road checkpoints
drug deal. Acting in that confidential report, the police When the driver is being searched, it can be implied that
dispatched a police team to conduct a surveillance. On the within his immediate surrounding is the back rider. But an
course of the surveillance, they saw a jeep passing by and argument can be made that although that back rider is
stopped at a gasoline station. They observed the literally within his immediate surrounding, he cannot be
surroundings and saw another vehicle stopping by and covered by the scope of the search incident to a lawful arrest.
proceeded to talk on the woman in the passenger jeepney.
They observed that the woman handed unto the man a white TAKE NOTE: The back rider is in independent person of his
envelope. own who is also vested with his constitutional rights. Invoke
those rights.
At this time the police seized the envelope and seized the
marijuana inside. The admission of the marijuana was Can we apply the terry search doctrine to justify the
objected to under the authority of People vs. Amminudin search of the passenger?
saying that there's nothing wrong with a person handing over If you can comply with the requirements of terry search
to another person an envelope. doctrine why not.
Example 2: Classroom set-up

U S C L A W | Page 12 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

In this classroom, every corner can be argued that it is within but he witnessed some facts and circumstances indicative of
the immediate surrounding of Mr. Asentista. If he is bringing a crime.
a firearm with him and he is arrested by a classmate who
happens to be a police officer, then all of us covers the Illustration: Police officer Asentista is walking along
immediate surrounding of Mr. Asentista. Again, with regard Junquera St. trying to negotiate a lady for a night of fun, he
to the rest of the class, invoke your personal right against heard a woman scream for help, shouting that somebody
unreasonable search and seizure. snatched her necklace. Moments later, he saw someone
running away. He didn’t witness the snatching, but he has
HOT PURSUIT personal knowledge of the facts and circumstances: (1)
shouting; and (2) running away of someone. This is a valid
Requisites: hot pursuit.
1. An offense has just been committed (immediacy), and
2. The person making the arrest has personal knowledge of People vs. Abriol
the facts indicating that the person to be arrested committed This is a murder case. A police officer who was at a
it. vulcanizing shop heard a commotion, a burst of gunfire. He
proceeded to the area where the gunfire originated, saw
Immediacy people scampering away and a jiffy is speeding away. He
The element of immediacy is reckoned from the time of tried to give is a chase but he lost sight when the jiffy turned
commission to the time of arrest (not from time of knowledge left. So, he radioed another police officer who was at the
of the commission). If the crime committed today, 2 years direction where the jiffy is proceeding. It was at this juncture
later the authorities came to know about it and arrested the that as just the other police officer received the call, he saw
suspect – that is not hot pursuit. a jiffy passing by and the police eventually caught the
suspects.
How immediate is ‘immediate’?
Jurisprudence has failed to provide us a fixed standard on Atty: Hot pursuit according to SC. But is it really hot
how to determine immediacy of the arrest. The only standard pursuit?
being the “unbroken chain of events,” meaning there should In this case, the arresting officer was not the officer in the
be no appreciable interval of time that supervenes from the vulcanizing shop. The police officer who effected the arrest
time of commission up to the time of the arrest. didn’t know through his personal knowledge of the facts and
circumstances indicative of the commission of the crime. His
Theoretically, if from the time of the commission, the pursuit personal knowledge was only the facts and circumstances
is continuing without interruption and such pursuit takes relating to the passing by of the jiffy that fits the description
weeks or maybe months – it will be a hot pursuit. So long given to him through the phone. He didn’t have the personal
that there is unbroken chain of events from time of knowledge of the commotion, the burst of gunfire indicative
commission to the time of the arrest. of the commission of the crime. Without the phone call, he
would’ve known that a crime has been committed. There is
Jurisprudence provided authorities how immediate is no indication of a crime committed by a vehicle just passing
immediate: by. The only link between what was the arresting officer
personally knew and the commission of the crime was the
NOT HOT PURSUIT: information relayed to him by the police officer who
People vs. Manolo -- 19 hours personally knew of the facts and circumstances indicative of
People vs. Del Rosario -- 1 day the crime. It would have been different if the one in the
People vs. Olivares -- 2 days vulcanizing shop is the one effected the arrest.
People vs. Ronda -- 3 days
People vs. Lolito Go -- 6 days It would now appear that in the ruling of SC, a call, an
information received through a phone, or a radio call maybe
HOT PURSUIT: a basis for hot pursuit.
Padilla vs. CA – few minutes
People vs. Gerente – 3 hours Take note that the personal knowledge required for hot
People vs. Abriol – few minutes pursuit is only probable cause and for purposes of
determining probable cause, a phone call maybe sufficient.
Personal Knowledge of the Facts and Circumstances Understand it with tandem of the other facts, in this case,
Personal knowledge (PK) here has to be distinguished from the jiffy described – all together is sufficient to constitute
the personal knowledge which is requirement in in flagrante. probable cause that warrants arrest under hot pursuit.
The PK in in flagrante delicto pertains to the probable cause
of the overt act that the crime has been committed. It Padilla vs. CA
contemplates of a situation that the crime is committed in Same principle is applied. The arresting officer didn’t know
the presence or in the view of the arresting officer. on his personal knowledge of the commission of a crime. His
only personal knowledge relates to the dangling plate and
The PK required in the hot pursuit is only personal knowledge dented railings of the car. These standing alone, no way be
of the facts and circumstances indicating that has just been indicative of the commission of the crime more so that the
committed and the person being arrested committed it. This driver Padilla is the one responsible of the crime. It was the
is a situation short of in flagrante delicto. The arresting call that alerted the arresting officer that a crime had just
officer did not actually witness the commission of the crime

U S C L A W | Page 13 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

been committed. SC said it was a valid hot pursuit. Probable what the buri bag contains. The accused ran away and the
cause can be based on a tip information. police officer gave him a chase. He was stopped and the bag
was searched, there yielded firearms. The introduction of the
People v. Gerente firearms seized was objected to under the principle that it’s
The police station received a phone call about a mauling an illegal search, no was search warrant. But the SC upheld
incident. The officers were dispatched to the area reported the search based on the terry search doctrine.
and found the victim dead on the ground with the murder
weapon, a hollow block. The witnesses informed the Manalili vs. CA
policemen that it was the accused who killed the victim. They Police officers where conducting surveillance in an area near
arrested Gerente in his residence. The police officer didn’t a cemetery when they saw the accused walking wobbly, with
personally witness the killing, they have personally his eyes red shot indicating which is normal appearance of a
knowledge of the crime because they saw the dead body of person high on drugs. He was stopped and frisked, the frisk
the victim and the murder weapon. But they knew the yielded positive. Terry search was applied but the search
identity of the one responsible because it was pointed to there was more or less extensive. Under the decision of the
them by the witnesses. Here, SC said that probable cause is SC in this case, our own interpretation and application of
enough to comply with the requirement of personal Terry Search doctrine is more or less not limited to outer
knowledge of the facts and circumstances indicative of the clothing of the person suspected but rather more extensive
commission of the crime and the identity of the perpetrator. search to include even personal effects of the person
searched.
TERRY SEARCH DOCTRINE
CONSENTED SEARCH
Take note terry search doctrine should be distinguished to
search incidental to lawful arrest. Terry is a search before the Consented search is a valid warrantless search based on
arrest. the principle of waiver. The right against unreasonable
search and seizure is a personal right and it can be waived,
Terry vs. Ohio not by any person but by the person who owns the right.
The legal parameters of this principle originated from the
case of Terry v. Ohio, where two men was observed by a People vs. Damaso
police officer repeatedly passing by a store. They The police officer raided a certain apartment belonging to or
congregated in a certain area where they are met by a third occupied, rented by the accused, but they were allowed entry
person. Based on the experience of the police officer, these by the house helper. A search was conducted without search
3 men were probably planning of a robbery. So, the police warrant, this was questioned. The State argued that there
officer approached them, made reasonable inquiry, and was a consented search. The Supreme Court said that the
when they acted suspiciously, the officer stopped and frisk right against unreasonable searches and seizure can be
them – contrabands were discovered. The admission of the invoked only by the person whose right is violated. If it is
evidence was objected to, allegedly inadmissible because personal, then it follows that the right to waive it should be
there was no search warrant. But the US SC, affirmed the personal as well. So, the permission given in this case by the
seizure as well as the arrest as an exception to the house helper was not enough and therefore, did not validate
requirement of a search warrant, therefore being called as the warrantless search conducted.
the Terry Search Doctrine.
CHECKPOINT
Under this doctrine, the police officer has a reason to believe
that a crime has either been committed, being committed or GENERAL RULE: Search should be outside only
will be committed and based on his experience and in the EXCEPTION: If there is probable cause that the occupants
light of the circumstances, he has reason to believe that the or passengers are committing a crime or that they are
person to be arrested is armed and dangerous. To protect incriminating object or instruments found in the vehicle. In
himself or anyone found in the same area, the police officer which case, extensive search maybe allowed based on
may stop and frisk him. For this purpose, he should introduce probable cause.
himself as a police officer and make reasonable inquiry.
Valmonte vs. De Villa
TAKE NOTE: The origin of this ruling limited the application Here it was held that checkpoint is valid so long as it is
of a search to the outer clothing for the purpose of knowing justified by the exigencies of public order and so long as the
whether or not the person to has a weapon that may be used search is limited to visual search.
against the arresting officer. The PH jurisprudence, however,
expanded it to extensive search including the personal The driver or the passengers of the vehicle are not bodily
effects not only to search dangerous weapon but also to searched nor is the vehicle itself extensively searched. So,
prevent the arrested person to destroy any incriminating this is limited to the police officer looking at the outside
evidence. appearance of the vehicle. They are not allowed to demand
the driver to alight or doors be opened for them to see inside.
Posadas v. CA
This involves a police operation wherein they were People vs. Vendicario
conducting a surveillance in an area reported to be This is involving a motorcycle where two men on board sped
frequented by criminals. They saw the accused carrying a past a checkpoint. One of the officers manning the
buri bag acting suspiciously, they approached him and ask checkpoint whistled at them to return, as they did. When

U S C L A W | Page 14 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

inquired into, one of the passengers represented himself to When is a person under a custodial investigation?
be a member of the military but, however, failed to present Custodial investigation is the stage where the investigation is
any ID. The police officer noticed a bag, a military backpack no longer a general inquiry into an unsolved crime but
which the three of them took turns in passing the bag to one already begins to focus on a particular suspect after the
another. They acted suspiciously and so the officer manning suspect has been taken into custody or otherwise deprived
the checkpoint searched the military backpack which yielded of his freedom of action. It involves any form of questioning
contraband. by the law enforcement agency which leads itself illicit
answers, admissions, or confessions from the person or the
ISSUE: Whether the illegal drugs found in the military suspect under interrogation.
backpack are admissible given that the search was not made
on the strength of a search warrant. The Supreme Court Requisites:
admitted the evidence under the exception, Checkpoint.
1.The inquiry should no longer be general, but
RULING: Supreme Court said there was probable cause. should focus on a particular suspect
While checkpoint allows only visual search, the presence of This covers a situation where the inquiry shifts from
probable cause warrants a more extensive search. In this investigatory to accusatory. In other words, there is already
case, the extensive search of the bag was allowed. a person subject of investigation which is the one accused of
a committing a crime.
EMERGENCY SEARCH
A police line-up could not be considered custodial
People vs. De Gracia investigation because police line-up is a general inquiry.
This was during the time of Cory Aquino where series of coup Precisely, persons are lined up so that the victim can identify
d’etat where launched by Gringo Honasan and his cohorts. who any of them is the probable suspect. When one is
Now, before the search was implemented, the raiding team already accused or pointed to as a suspect, the custodial
conducted surveillance in the vicinity near the building but investigation process begins. That is the moment that that
when they were observing the building they were fired upon person is entitled to the Miranda rights.
by the occupants of the building and so this prompted them
to search inside. The search revealed assorted guns, 2. That suspect should be placed in custody or
ammunitions, and high-powered firearms. It was done otherwise deprived of his freedom of action
without a search warrant which was objected to. in a significant way

SC said that under the circumstance involving extreme If there is no arrest or when the suspect is not arrested, not
emergency, where courts were closed because of the coup placed under custody nor deprived of his freedom of action
d’etat, how would you expect the raiding team to first obtain in a significant way, even if he is interrogated nor even if he
the search warrant on the face of that emergency? So, the makes a confession, that may not be covered by the
warrantless search was justified under the exigent protection afforded by the Miranda warnings.
circumstance principle as an exemption.
People vs Adrian Guting
MIRANDA RIGHTS Adrian immediately, after he stabbed his father to death,
CUSTODIAL INVESTIGATION went to the nearby police station and approached two police
officers standing across the police station and without being
Section 12, Article III asked, he voluntarily confessed to the police officers that
Any person under investigation for the commission of an “sinaksak ko ang tatay ko, napatay ko na po siya.” – an extra
offense shall have the right to: judicial confession. During the trial, he questioned the
admissibility of his confession on the ground that he did it
(a) Be informed of his right to remain silent without the assistance of counsel.
(b) Have competent and independent counsel preferably of
his own choice. If the person cannot afford the services of The Supreme Court had the occasion to rule that the principle
counsel, he must be provided with one of custodial investigation and the accompanying rights, the
(c) Be informed of the above rights Miranda rights, are not available to Guting in this instance
because for these rights to arise, the person must be under
The right to remain silent and the right to be assisted by custody or deprived of his freedom of action. Guting is far
counsel may be waived which should be in writing and with from being in that situation. He was not arrested, was not
the assistance of counsel. placed in custody, neither was his freedom of action
restrained. When he made the confession, he was not under
The only right that cannot be waived under Sec. 12 is the police custody.
right to be informed of the right to remain silent and the right
to be assisted an independent and competent counsel. These TAKE NOTE: Placing a person under custody does not only
rights more popularly known as the Miranda rights or cover the situation where the person is literally restrained of
Miranda warnings. his physical liberty, handcuffed, and brought to the police
station.
TAKE NOTE: Miranda warnings are available only when a
person is under custodial investigation. In our jurisdiction, we include more than physical restraint of
arrest because by the provision of RA 7438 (the practice of

U S C L A W | Page 15 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

the police in inviting persons suspected of the commission of Atty’s opinion: There is much no difference. It should be
a crime), it is enough for that suspect to be entitled to the covered by Miranda rights. There’s no ruling on the issue,
Miranda rights. Inviting a suspect for investigation in relation this is still an issue ripe for adjudication for the Supreme
to a crime of which he is being suspected of committing is Court, but if I were to attack the problem, I would argue that
already custodial investigation. it is no difference. It is considered as custodial investigation.

People vs. Lauga Would psychological restraint be covered?


This was a case of a suspect who was invited by a bantay Yes. The purpose of the requirement is to prevent the
bayan, he was invited for questioning, without being slightest form of coercion. So even if there is no strict
apprised of his Miranda rights, and in the course of the physical restraint but the environment is so coercive that you
questioning, he made some confession. have no freedom of action or thinking at that matter, an
argument can be made that it is already tantamount to
ISSUES: custodial investigation.
1. WON the confession was admissible given that it
was made without the assistance of counsel 3. The confession made must be in response to
2. WON bantay bayan could be considered as as questioning by the authorities.
authority so as to require Miranda rights to the
suspect It should be in response to police questioning. If it is a
voluntary spontaneous statement made by a person under
RULING: custody, it cannot be deemed covered by the Miranda rights.
1. Supreme Court said that although the Miranda Spontaneous statement given not in reply to police
rights are available to cases of arrest of suspects, questioning but given in an ordinary manner is not covered.
our authority now expanded the coverage of
custodial investigation to include the situation People vs. Pablito Andan
where the suspect is merely invited by the police. Andan was already under detention for the rape and slay of
2. Supreme Court said that bantay bayan performs a a 19-year old girl. He was placed inside the detention cell
function similar to a law enforcement agent. For when he learned that the mayor arrived at the police station.
purposes of the Miranda rights, bantay bayan is He requested for a personal meeting with the mayor. And
considered an agent of the state. during his conversation with the mayor, without the mayor
So, the admission there was made was inadmissible asking him any questions, he broke down and confessed.
for violation of the suspects Miranda rights.
There was a confession made while he was restrained of his
People vs. Del Rosario liberty but the Supreme Court said, this is not covered
There was a murder, a witness positively identified the because the confession was made not in response to police
tricycle driver as the driver of the get-away tricycle. He was questioning, but given in an ordinary manner.
invited by the police to the office of the Brgy. Captain. He
made a confession in the course of the interrogation. He People vs. Adrian Guting
questioned the admissibility of his extrajudicial confession When Guting made the confession when he was not yet
because he was not afforded of the Miranda rights. The arrested, the Supreme Court said, the confession was made
Supreme Court said that the invitation of the police, the act not in response to any police questioning but spontaneously
of the police in inviting the suspect to the office of the Brgy. given in an ordinary manner. That is it was admissible even
Captain for questioning already amounts to custodial without made with the assistance of a counsel. There should
investigation under the provisions of RA 7438. be police questioning.

In re: Tokhang Operations TAKE NOTE: Questions propounded by persons other than
Just a background of RA 7438. Why did congress enact the police or authorities of the State to a person under
7438? This is precisely because of the requirement that a custody is not covered.
person is entitled to the Miranda rights only when he is
arrested. But like virus that mutates, authorities also adapt, People vs. Guillermo
so what they did was instead of arresting suspects, they This involves an employee who hacked his employer to
would just invite them for questioning. When the confession death. He was arrested and detained. While detained, he was
is questioned due to absence of Miranda warnings, they interviewed by Gas Abelgas and Kara David who are TV
would just conveniently say that the suspect was not reporters. These reporters questioned him in a way that he
arrested, he was merely invited. So our legislatures are also was interrogated. Eventually, he admitted his acts to them.
to adapt and this is their way of addressing the practice of
the police. Now, they cannot claim that the suspect is not Supreme Court said even if Guillermo was placed under
entitled to Miranda rights he was merely invited, it is now custody and subjected to some sort of questioning, this
expressly prohibited under RA 7438. cannot be considered covered by Miranda warnings because
these questionings were not initiated by State authorities.
Now going back to Tokhang, they cannot anymore invite
suspects so again they mutate and adapt, so what they do
now is they invite themselves in to the house of the suspects.
Can that be any different from inviting the suspect?

U S C L A W | Page 16 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

Who are these law enforcement authorities that the US vs. Tan Teng
rules refer to? Accused was a suspect for acts of lasciviousness committed
This does not only cover your typical NBI, PNP and similar against a young girl. The victim was infected with gonorrhea.
law enforcement agents of the government. This may include To confirm that the accused was the one who committed the
the following: crime, he was compelled to an examination where
substances omitting from his body was subjected to a test.
1. Barangay Captain True enough that the result confirm that he accused himself
People vs. Edna Malngan was suffering from gonorrhea. Right against self-
There was this house helper who asked permission from her incrimination was invoked and admission of the evidence was
employers that she be allowed to go home but her employer objected but the SC said object evidence is not covered.
refused telling her to go home to just ride a broom stick. And
she was allegedly not paid her salary for 1 year. So, Edna Villaflor vs. Summers
obviously reached her breaking point and set the house of The wife was accused of adultery and compelled to submit
her employer on fire. The house burned down and her herself to pregnancy test. Right of self-incrimination was
employers perished with the house. The employers and their invoked but no avail. SC said it is not covered because it is
family died. purely mechanical act.

Investigation revealed that immediately after the fire broke People vs. Vallejo
out, Edna was seen by a witness running away and she rode Involves a rape-slay of a minor girl, one of the pieces of
a tricycle and she asked the tricycle driver to bring him to a evidence presented was the result of the DNA test using a
certain place. The tricycle driver also testified. So, she got sample for the vaginal swab taken from the sex organ of the
arrested by the Brgy. Captain and she was brought to his victim. The vaginal swab establishes that it contains the DNA
office where she, upon interrogation, made the confession. profile consistent with that of the accused. SC said it is not
covered because it was purely mechanical act.
During the trial she repudiated the confession saying that it
was done without the assistance of counsel and in violation Not covered by right against self-incrimination:
of her Miranda rights. 1. Paraffin Test
2. Finger Printing
ISSUE: WON she was entitled to Miranda rights 3. Photograph
4. Examination of his physical features (size of his
RULING: Yes, because even if the Brgy. Captain is not a foot, length of arm etc.)
member of the police force or military or NBI, he/she
performs functions relative to peace and order that makes GENERAL RULE: Right against self-incrimination does not
her a law enforcement agent of the government. cover purely mechanical act and non-testimonial compulsion.

2. Bantay Bayan EXCEPTIONS:


People vs. Lauga Beltran vs. Samson
A bantay bayan is a citizen volunteer organization intended SC said that while it is true that non-testimonial compulsion
to perform functions for peace and order purpose. is not covered by right against self-incrimination, this only
applies if the evidence is purely object or purely mechanical.
3. Mayor When the production of evidence requires the intervention of
The mayor exercises operational supervision and control over the mental faculties, that object now is protected by the
local police. privilege because producing sample of one’s handwriting
requires mental intervention.
TAKE NOTE: Security guards are not covered.
Jaime vs. People
People vs. Bongcarawan Jaime was arrested for extortion and during his detention, he
A security guard does not fall under the so-called law was forced to submit himself to a drug test which yielded
enforcement authority. positive for traces of shabu found in his urine. He was
convicted of use of illegal drugs. On appeal, he questioned
RIGHT AGAINST SELF-INCRIMINATION the admission of the urine sample and the corresponding test
result. He invoked right against self-incrimination.
The kernel of the right is the proscription against testimonial
compulsion. It does not cover object or purely mechanical SC said that although the taking of a urine sample is purely
act. mechanical, in this case, this piece of evidence was taken
from the accused which has nothing to do, no connection
US vs. Ong Siu Hiong with, and not germane at all with the principal cause of the
It involves a suspect who was compelled to discharge arrest – extortion.
morphine in his mouth. The admission of the morphine as
object evidence was objected to, but the objection was TAKE NOTE: Regala vs. Sandiganbayan
overruled. SC said that the proscription against right against DOCTRINE: Documentary evidence, though non-testimonial,
self-incrimination does not cover object evidence. is still covered by right against self-incrimination.

U S C L A W | Page 17 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

This case involves the Coco Levy funds. Coco Levy fund is a TAKE NOTE: Both are a civil proceedings (collection for
kind of tax imposed for the benefit of the coconut farmers sums of money) where right against self-incrimination can be
but it was alleged that the funds collected pursuant to this invoked. In the first situation, the question is not
law were diverted to purpose other than for which the funds incriminating as the answer would only result to an exposure
were intended. It was alleged that the funds were siphoned to a possible civil liability, while the second will expose the
off to the accounts of Marcos cronies. Several corporations respondent to a criminal liability.
were established out of the funds collected the coco levy
fund. Illustration 3:
Mr. Asentista is an elementary teacher, there is a policy
After the fall of Marcos, the PCGG run after this corporations implemented by DepEd that the non-payment of obligation
to recover the coco levy funds on their accounts and can be a ground for disciplinary actions against teachers.
prosecuted the suspected Marcos cronies. The problem was While he may be exposed to administrative liability, it will not
that, when they went over the records of the corporations, tantamount to incriminating question because the liability is
they couldn’t find any single name of those cronies. Instead not criminal in nature.
they only found names of ACCRA lawyers who appear to be
stockholders of these corporations. This is an open secret TAKE NOTE: If the crime imputed has already prescribed or
that the lawyers only stood for their clients, they are just only that the witness has already served sentence for it, or if the
dummies used by the cronies. So, to pin the principal whose witness is given immunity from prosecution, he cannot refuse
names do not appear in the records, the PCGG asked for an to answer the question and cannot invoke the right against
order to compel ACCRA law office to produce corporate self-incrimination because even if he would admit that indeed
records hoping that such will disclose the identity of the he committed the crime, that will not anymore expose him
principal. to a criminal prosecution.

ACCRA invoked the right against self-incrimination for CYBERCRIME WARRANT


compelling them to produce corporate records that would Note: This discussion was derived at when a question was
expose them to possible criminal liability. SC sustained it and raised in relation to compulsion in opening a phone using
said that right against self-incrimination covers testimonial, fingerprints or facial recognition
documentary and object evidence so long as it is not purely
mechanical act and has connection to the principal cause of Doctrine before Cybercrime warrant:
the arrest. If the accessing of the data inside computer or phone is
purely mechanical (fingerprint), it will not violate right
In what kind of proceeding is the right against self- against self-incrimination. But if the opening requires
incrimination invocable? passwords, it will now need mental intervention. Applying
All types of proceedings: civil, criminal, administrative and Beltran v Samson, it is a violation of the right.
legislative. Note, however, the difference of which part of the
trial you may specifically invoke it in criminal cases vs. civil Cybercrime Warrant (it made things different)
cases.
There are 4 kinds of search warrant:
When is a question incriminating? 1. Warrant to disclose computer data
A question is incriminating when it tends to expose the party Like the ordinary search warrant, it is issued in the name of
or witness in a criminal prosecution or criminal liability. the People of the Philippines, by the judge, authorizing law
Always look at the possible liability that the answer might enforcement authority to direct a person in possession of
establish in answer to a question. subject computer data to disclose or submit the subject
computer data.
Illustration 1: Mr. Asentista obtained a loan. Action for
collection is filed and in the course of the trial, Mr. Asentista If the police suspects that Mr. Asentista is engaged in human
testified as a witness for himself. During the cross- trafficking or child pornography and in possession of various
examination, he was asked by the counsel, “Is it true that computer devices that contain data inside, evidence of the
you obtained a loan from Mr. Horeb, that the loan was crime. This type of warrant will authorize the police to direct
already due but despite of repeated demands, you failed to Mr. Asentista to produce the computer data subject of the
pay?” warrant and submit it to the authorities.

Resolved: Mr. Asentista may not invoke right against self- 2. Warrant to intercept
incrimination because the answer to the question may only If the authorities believe that Mr. Asentista is in conspiracy
expose him to civil liability. with Mr. Horeb, a pedophile. In the course of their criminal
conspiracy, they continuously communicate with each other
Illustration 2: Mr. Asentista was asked in the same cross- through online using various telecommunication devices.
examination, “Is it true that you falsified the receipt that you
presented in court?” If the authorities believe that this communication are
incriminating and there is a need to intercept or subject to
Resolved: Mr. Asentista may invoke right against self- surveillance operation, to monitor the flow of
incrimination because the answer may expose him to criminal communication, they can apply to this second type of
liability of falsification of document. warrant.

U S C L A W | Page 18 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

If granted the law enforcement agency will be authorized to Illutsration: Ms. Centino rented an apartment in Junquera
conduct surveillance using various devices to monitor, surveil owned by Mr. Horeb. Unknown to Ms. Centino, Horeb
and intercept any computer data flowing between Mr. installed a complex intricate network of computer system
Asentista and Mr. Horeb. that captures the nook and cranny of the room occupied by
Ms. Centino while Mr. Horeb observes her in the comforts of
3. Warrant to seize and examine computer data his room in Quezon City. Horeb has also a connected
If the law enforcement officer believes that Mr. Asentista and computer system in Cebu and in Davao City.
Mr. Horeb have in their possession computer devices and
other communication equipment that can be used in the Under the second option, the application for search warrant
commission of a cybercrime or contains data that can be an may be filed in the cybercrime court of either in Davao, Cebu,
evidence in commission of a crime, the authority concern or QC, wherever the computer system is found. Or, if the
may apply for this warrant. system is located in QC but Ms. Centino is a resident of
Ozamis and since she is so popular there, the release of the
4. Warrant to examine computer data video recordings caused damage to Ms. Centino’s reputation
In this situation, the authorities for one reason or another in Ozamis. Thus, an application for cybercrime warrant can
was lawfully in possession of some computer devices that be filed with the appropriate cybercrime court in Ozamis City.
contains data that were incriminating, they can apply for this
warrant. MANNER OF INVOKING THE RIGHT AGAINST SELF-
INCRIMINATION
If Mr. Horeb is caught in the act of stripping himself naked
along with naked little boys performing sexual acts in front The manner of invoking depends on the kind of proceeding
of their customers. Caught in the act of committing a crime, the right is invoked. If it is a criminal case, the accused can
as a result of a valid arrest (with or without warrant) a all together refuse to take the witness stand. The reason for
consequent search was conducted, some computer devices this is that when the prosecution calls the accused to the
were seized. Computers were seized from search incidental witness stand in a criminal proceeding, the obvious purpose
to valid arrest. there is to incriminate the accused and therefore there could
be no sense of requiring the accused take the witness stand
Will authorities be allowed to examine the data store and then invoke right against self-incrimination when that
inside the devices? specific incriminating question is propounded.
As it appears now, the 4th type of warrant requires another
search warrant for purposes of examining the computer data But if it is a civil or administrative proceeding,
believed to be found inside computer devices. There is a respondent cannot refuse to take the witness stand. He is
need for separate search warrant for the purpose of only entitled to invoke right against self-incrimination when
examination. a specific incriminating question is propounded except if
the administrative or civil cases or proceedings is
Thus, if a phone is seized pursuant to a valid arrest, the penal in nature.
authorities cannot just simply examine it, they need to apply
another search warrant for such purpose. This somehow WAIVER OF RIGHT AGAINST SELF-INCRIMINATION
changed the distinction of purely mechanical or process
needed mental intervention because either way another The right against self-incrimination may be waived. Waiver
search warrant is required. maybe expressly or impliedly given. An implied waiver takes
place in the voluntary act of the accused of taking the witness
ORDINARY SEARCH WARRANT vs. CYBERCRIME stand (criminal cases or civil cases that are penal in nature)
WARRANT or in answering incriminating questions.

Ordinary Search Cybercrime WAIVER OF RIGHT AGAINST SELF-INCRIMINATION


Warrant Warrant IN CIVIL PROCEEDINGS
Life span 10 days 10 days
Extendible for another When is the proceeding deemed penal in nature?
10 days if there is
Pascual vs. Board of Examiners
justifiable reason; no
Extension Not allowed
prohibition on further This involves an administrative proceeding against a doctor
acquiring for addition who was accused of malpractice. During the hearing before
extension the Board of Examiners, the head officer called the doctor as
Apply in the court that has the first witness. When he was called to take the stand, the
territorial jurisdiction of Applied with the doctor invoked his right against self-incrimination and
the place where the cybercrime court which refused to take the witness stand. The head officer knew that
offense is committed. Or if has jurisdiction over the this is an administrative proceeding and said that he cannot
there are compelling place of commission, or refuse to take the witness stand but may invoke right against
Venue reasons, in any court the place where any part
within the same judicial of the computer system
self-incrimination when a specific incriminating question is
region where the crime is found, or the place asked.
was committed or where where the damage is
the search warrant is to be caused SC ruled that although generally the right against self-
implemented or enforced incrimination may be invoked by the respondent in civil or
administrative proceeding only when a specific incriminating

U S C L A W | Page 19 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

question is asked and cannot refuse altogether to take the Clarifications:


witness stand, an exception is when the administrative • As to a quo warranto proceeding which is one of the
proceeding is penal in nature. In ruling that the proceeding examples where the administrative penalties
is penal in nature, the SC noted the fact that if the include fine, suspension, disciplinary actions, the SC
respondent is found administratively liable, the consequent decision simply state civil action except penal in
penalty is the revocation of the license to practice his nature, it is too general. If they desired to be
profession which is considered as a property right under the specific so as to cover special civil actions, they
Constitution. If one is denied the right of his property like the should have specified quo warranto.
license to practice his profession, that makes the • As to disbarment cases, it is sui generis. But Atty
administrative proceeding penal in nature. said it is more on administrative as it is called a
disciplinary administrative complaint against
Cabal vs. Kapunan lawyers. Pascual is therefore applicable.
This involves a military man charged administratively for • As to fines, if the purpose is punitive it is penal in
violating the provisions of the Anti-Graft and Corrupt nature.
Practices Act as he was accused of amassing ill-gotten • As to exemplary damages, it is punitive in a sense
wealth. During the administrative hearing, he was called to that it is imposed to prevent others from performing
take the witness stand. He refused by invoking his right it. Its purpose is to prevent others from doing a
against self-incrimination. The leading officer argued that he similar act which was the subject of the proceeding,
cannot refuse to take the witness stand but only invoke the to serve as an example for the public good, and for
right when specific incriminating question is propounded. other similarly-minded entities or individual to not
follow suit.
Supreme Court ruled that since this is penal in nature, the
rule applicable in criminal cases equally applies. Thus, the Q: If in Rosete v. Lim, the respondent agreed to taking his
respondent may refuse to take the witness stand and need deposition and such deposition is later on offered as evidence
not wait for the specific incriminating question to be in the criminal case, they could object if it is incriminating.
propounded because if the respondent is found The rule is that the party taking the deposition is not required
administratively liable, he runs the risk of being dismissed to use it as its own evidence.
from the service and his alleged ill-gotten wealth will
forfeited in favor of the government which would result to a Now under the rules, the party whose deposition was taken
possible deprivation of property. may object to the admission of the deposition taking as if
witness testify in court. He may do so when such deposition
Rosete vs. Lim – A civil proceeding is formally offered din trial.
This involves a civil action for nullity of certain documents
and recovery of properties. Parallel to the civil action is a civil WAIVER OF RIGHT AGAINST SELF-INCRIMINATION
case for violation of BP 22 filed against the accused who are IN CRIMINAL PROCEEDINGS
the same defendants in the civil case. In connection to the
civil case, plaintiffs manifested the intention to avail of Forms:
deposition taking, which is one of the modes of discovery of 1. Taking the witness stand
procedure, but the defendants in the civil case refused to Illustration: Horeb is charged with child pornography and
participate so much like an accused refusing to take the he took the stand as a witness for himself. If an incriminating
witness stand. They contended that whatever testimony they question is propounded, Horeb cannot refuse to answer the
will give in the course of the deposition taking will surely be questions because by taking the stand, he already waived his
used against them in the criminal case that will violate their right. He cannot, on one hand, take the stand and at the
right against self-incrimination. same time, refuse to answer cross examination questions.

Supreme Court said that they cannot refuse to take the But this waiver only extends relating to the charge where
witness stand but they can invoke the right against self- Horeb testified as a witness for himself. If he is asked on
incrimination only when the specific incriminating question is question relating to any other crime, say about acts of
asked, simply implying therefore that this civil case is not lasciviousness which is different from the present charge. he
penal in nature. may invoke right against self-incrimination.

Atty: But if you look at the prayer prayed for by the plaintiffs
in this case, it’s obvious that it seeks the nullification of 2. When an incriminating question is asked by
certain documents in order to recover possession and the opposing party and the witness answers
ownership of the properties. If the plaintiffs prevail in the such without objection
case, then the defendant will be ordered to return the
properties to the plaintiffs. In a way, this will amount to the Failing to object can amount to an implied waiver.
defendant being deprived of his possession and ownership of So, in court, you have to be vigilant. Always raise
the property subject of the litigation. your objections seasonably before the answer is
given.
How to determine if a civil case is penal in nature?
When that civil case entails adverse criminal consequence or
in a situation wherein if the plaintiff prevails in his right, the Clarifications:
respondent will be deprived of his property.

U S C L A W | Page 20 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

• As a witness, you can object and invoke your right sustain and will ask the prosecutor to reform the
against self-incrimination. You need not wait for question.
your lawyer.
• A witness, regardless of the nature of the There, however, may be instances that the offer is not
proceeding, has the right to refuse to take the objectionable and the question is perfect but the answer is
witness stand. But also, even if he agrees to take the one objectionable. You will only know if it is
the witness stand, he can always invoke the right objectionable or not when the answer is already uttered.
against self-incrimination when incriminating
questions are asked. i.e. “Mr. Horeb how did you know it was Ms. Centino who
The trial process (not included in the exam) fondled your private parts when you said yourself that you
If you are the one examining the witness, you ask the court were tired and drunk?” and then Mr. Horeb answered “I was
that the witness be apprised of his right against self- informed by Mr. Asentista”
incrimination. The court will act and will inform the witness
that “you can refuse to take the witness stand or if you want, Remedy: Ask that the answer given by Horeb be stricken
we may suspend the proceedings and bring your lawyer next off the record for being hearsay.
time”.
EXCLUSIONARY RULES UNDER SOME SPECIAL LAWS
It is the duty of the court to apprise the witness. If the
witness was not apprised, there be no waiver. The lawyer of 1. Anti-Wiretapping Act (RA 4200)
the party which presented the witness may not invoke it on 2. Human Security Act
his behalf because he is not the lawyer of the witness. There 3. Data Privacy Act
is no professional relationship between the lawyer and the 4. Anti-Photo & Video Voyeurism
witness. 5. Documentary Stamp Tax
6. Bank Secrecy Deposit
Objection in the object and documentary evidence 7. Rape Shield Rule
Presentation of Witness => Formal offer => Objection 8. Sexual Abuse Shield Rule

Example: ANTI WIRE-TAPPING ACT (RA 4200)


• Presentation: 10 witnesses
• Formal offer: “Your honor we do not have any EXCLUSIONARY RULE: Any communication or spoken
more witnesses to present, allow us to formally words recorded and obtained in violation of the provision of
offer our object or documentary evidence” the law is inadmissible against the one whose
• Objection: You will be asked to comment or object communication is illegally intercepted or heard of or
recorded. But it is admissible against one responsible
Objection in testimonial evidence for the illegal wiretapping.
Formal Offer => Objection => Ask Questions (May object
from time to time) Section 1. It shall be unlawful for any person, not being
authorized by all the parties to any private communication or
Example: spoken word, to tap any wire or cable, or by using any other
• Formal Offer: Indicate purpose of the witness’ device or arrangement, to secretly overhear, intercept, or
testimony. record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or walkie-
i.e. “Your honor, I am presenting Mr. Horeb as the talkie or tape recorder, or however otherwise described:
first witness where he testified that when he had
the conversation with Ms. Centino, she told him that It shall also be unlawful for any person, be he a participant
Mr. Asentista told Ms. Centino that Mr. Asentista is or not in the act or acts penalized in the next preceding
a homosexual” sentence, to knowingly possess any tape record, wire record,
disc record, or any other such record, or copies thereof, of
• Objection: “Objection your honor. I object to the any communication or spoken word secured either before or
presentation of the witness because he will be after the effective date of this Act in the manner prohibited
testifying on a hearsay matter”. The court will by this law; or to replay the same for any other person or
sustain and Mr. Horeb will not be allowed to testify. persons; or to communicate the contents thereof, either
If in case the offer is not objectionable, the court verbally or in writing, or to furnish transcriptions thereof,
will simply overrule. whether complete or partial, to any other person: Provided,
That the use of such record or any copies thereof as evidence
• Proponent can now ask questions. Some in any civil, criminal investigation or trial of offenses
questions are objectionable if it is a leading question mentioned in Section 3 hereof, shall not be covered by this
prohibition.
i.e Horeb is a victim of acts of lasciviousness and
the prosecutor Asentista now calls him to the stand. Section 4. Any communication or spoken word, or the
First question was “Mr. Horeb, did you enjoy the existence, contents, substance, purport, effect, or meaning
act?” The other party will say “Objection your of the same or any part thereof, or any information therein
honor, the question is leading.” The court will contained obtained or secured by any person in violation of
the preceding sections of this Act shall not be admissible in

U S C L A W | Page 21 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

evidence in any judicial, quasi-judicial, legislative or • For video recording, only the audio in such
administrative hearing or investigation. particular file may still be considered as within the
purview of the AWTA and thus may still be
Gaanan vs. CA excluded.
There are 2 acts being punished by AWTA:
1) By tapping any wire or cable in order to overhear, A party to the conversation can be liable under AWTA
intercept or record any private communica2on or spoken Ramirez vs CA
word, or This involves two friends whose friendship went sour
2) By the use of any device or arrangement, to secretly because during their meeting, Garcia lambasted Ramirez,
overhear intercept or record such private communica2on or calling her names and unleashed vilifying language and
spoken word, using Dictaphone, dictagraph, walkie-talkie, statements against Ramirez. Unknown to Garcia, Ramirez
tape recorders or however described. secretly recorded the altercation and which recording she
used in support of her action for damages against Ramirez
TAKE NOTE: What is covered by the AWTA is private (for maligning and maltreating her). She thought that she
communication or spoken words. Spoken words which could nail Garcia using the recorded altercation but she
only covers voice audio, and does not include video ended up being nailed herself because it was her who was
recording. Neither does it cover photograph of any prosecuted for violation of the AWTA instead. She said that
documentary or object evidence because it is obvious from she cannot be held liable because she was a party to the
the devices enumerated thereon, merely audio recording communication. However, SC pointed that the language of
devices. the law says that “any person” without being authorized by
all the parties in the conversation is liable. So even if one is
Example: You photograph written communication between a party to the conversation if he made a recording without
two persons – this is not covered. the consent of the other party, violation of this law is
committed.
When is a communication deemed private?
Navarro vs. People HUMAN SECURITY ACT
There were 2 reporters who went to the police station to
report an incident that took place while they were in a bar, EXCLUSIONARY RULE: Any evidence obtained in violation
as they were forced to leave the place. But for one reason or of the provisions in this act, is ABSOLUTELY
another, the police officer on duty, Navarro, was hostile to INADMISSIBLE against ANY person.
the reporters. This resulted to a heated altercation, and
eventually the death of the victim. Unknown to Navarro, the This is a specie of its own. Whether offered against the party
other reporter secretly recorded the confrontation using a to the illegally recovered communication or as evidence
tape recorder. When Navarro was prosecuted for murder, against the violator of the law, it is inadmissible.
this tape-recorded confrontation took center stage. Navarro
sought the exclusion of the piece of evidence under the While the AWTA penalizes wire-tapping, recording,
provision of AWTA. interception of private communication without the consent of
the parties, the provisions of the Human Security Act provide
The Supreme Court saw it the other way, and said that AWTA for a sort of an exception as this allows the so-called
covers only private communication or spoken words. In this authorized surveillance or legalized wiretapping, but only
case, the confrontation between the victim and Navarro can for a limited purpose.
hardly be considered private. For this purpose, the SC noted
two circumstances: 1) the confrontation took place in a GENERAL RULE: This is allowed only in connection to
public area, the police station; 2) it took place in the presence the crime of terrorism. Under this special law, any and all
of other people. The place and the presence of other people communications of whatever kind between persons involved
made the communication not private. in judicially-declared outlawed terrorist organization,
association or group of persons, or of any person charged or
Gaanan vs. CA suspected of terrorism or conspiracy to commit terrorism,
SC also classified the telephone conversation between the may be intercepted, overheard, and recorded
Atty. Pintor and Atty. Lacunico as private because the words notwithstanding the provisions of the AWTA. This can only
spoken were from one person to another specific person, as be done if allowed, authorized pursuant to an order issued
opposed to words spoken or uttered by the speaker to the by an appropriate division of the Court of Appeals. This order
public. So, when the words are intended for a specific person is valid for 30 days renewable for another 30 days.
and not supposed to be heard by the public at large, that
makes the conversation private communication. Moreover, EXCEPTION: This does not allow the legalized wiretapping
SC said that had Atty. Pintor known that there was another of the communication between lawyers and their client,
person listening on the other line, he would not have doctors and their patients, journalists and their sources, and
proceeded with the conversation. From this discussion, it business correspondences. The obvious reason behind these
would be safe to assume that a conversation is private if it is exceptions is to protect privileged communication.
made by speaker to an intended beneficiary or hearer, not
indiscriminately. The SC took note of the intention of the When the communication between a lawyer and his
parties to the conversation. client involves a criminal conspiracy to commit a
crime
Clarification:

U S C L A W | Page 22 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

Illustration: Atty. Asentista is representing Mr. Horeb who considered with other information, directly and
is being charged with terrorism and during the pendency of certainly identifies an individual.
the case, they had a conversation where they both realized
that Mr. Horeb’s conviction is imminent because there is 2. Sensitive Personal Information: these are
another alive witness who could positively identify him in information about an individual, particularly
court. Mr. Horeb suggested, and Atty. Asentista agreed, that involving:
it would be better for them to silence the witness. They
would now conspire to kill the witness. Suppose that that a. Race
telephone conversation was captured by the surveillance b. Ethnic Origin
equipment and recorded, is that conversation admissible c. Age
when it is a conversation between a lawyer and his client d. Religious, Political Affiliation
which is supposed to be under the exception? e. Education
f. Health Condition
Atty: The law is silent or general, with neither qualification g. Sex life
nor distinction. While the communication between a lawyer h. Sexual Preference
and his client is supposed to be confidential, protected as i. Information the government issued to specific
privileged communication, this rule is found to be non- particular individual (ex: SSS number)
absolute. The rule itself allows for an exception. There are j. Any information which covers an executive
communications and information that flow between the order that is considered as classified.
lawyer and the client which are not protected by the
privilege. This only applies if the communication or 3. Privileged Information: these are information
conversation refers to a future crime for which the services which are considered privileged under the rules of
of the lawyer is not engaged by a client as it was not court and under special laws.
obtained in the course of a professional employment.
Example: Communication between the lawyer and the
Present crime illustration: If Horeb is accused of child client. Physician and the patient, the priest and the
pornography and to defend him in court he engaged the penitent, journalist and its resources.
services of Atty. Asentista who is known to be a lawyer who
specializes in defending those accused of pornography; and The following information are NOT covered under the
in the course of the engagement, Horeb disclosed to Atty. Data Privacy Act (can be made available to the public, it
Asentista everything that happened and said that it was true, can be disclosed):
with all the details of the crime. Suppose this conversation is
captured by the authorities’ surveillance devices, under the 1. Information of an individual who is or was an
HSA in relation to privileged communication rule, the employee or an officer of a government institution
communication between them is inadmissible because it is relating to his position and to his functions.
protected by the professional privilege. 2. Any information of an individual who in present or
in the past, rendered services under a contract for
Future crime illustration: If Mr. Horeb and Atty. Asentista a government institution.
talked about the commission of a future crime, like planning 3. Information that is necessary to perform a public
to kill the judge and the witness, that communication is not function.
protected by the privileged communication rule because that 4. Information that is necessary for journalistic,
information/communication cannot be deemed obtained in artistic, scientific, or research purposes.
the course of a professional employment. Professional 5. Information is necessary for the processing of
employment presupposes that it should be for a legitimate banking institutions, incompliance with bank related
purpose. The purpose must thus not be criminal. regulations (ex: Anti-Money Laundering Act).

DATA PRIVACY ACT SENSITIVE PERSONAL INFORMATION

EXCLUSIONARY RULE: Illegal processing of personal or The rule is that processing of any sensitive personal
sensitive personal information may give rise to criminal, information is prohibited. Anyone, any individual, any
civil or administrative liability and evidence is admissible, corporate entity is prohibited from processing, collecting,
exception is if the evidence is a privileged information. gathering, storing, sharing, distributing any sensitive
This law was reciprocated from the growing business personal information. An unauthorized processing may lead
outsourcing management and technology industry in the to criminal, civil, administrative liability.
Philippines. One of the recognized pitfalls of these companies There are however exceptions to the prohibition, were any
is the threat against privacy which happens when information sensitive personal information may be processed without
becomes a staple in the industry. violating the law:

This law protects 3 kinds of information: 1. Consent of the data holder or individual
concerned
1. Personal Information: this refers to any
information from which the identity of an individual The consent required by the law is a recorded consent. It
is apparent, is ascertained, or information which, if could be in writing, oral, in electronic form, or any other
recorded forms so long as it is recorded.

U S C L A W | Page 23 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

2. If the processing of the sensitive personal between the lawyer and client, it is only the client who can
information is prescribed by any existing law or prevent the disclosure of the information or communication
regulation because he is the holder of the privilege. So, if an information
is sought to be disclosed by the lawyer without the consent
So, if there is law that prescribes processing and the law does of the client, that information may not be disclosed under the
not require the consent of the data holder, it is allowed privilege communication rule. If the client consents but the
without violating the data privacy act. lawyer does not, the lawyer cannot do anything about it and
the disclosure maybe allowed because of the consent of the
3. If the processing sensitive personal information is privilege holder. It is personal to the privilege holder, no
necessary to protect the health and life of the one can invoke it for him.
data holder or any person.
EXCEPTION: Extended privileged communication
Illustration: If Horeb figured in a vehicular accident and as rule, however, provides that an information holder may
a result, he was rendered unconscious, thus not legally and invoke privilege communication rule over information that it
physical able to give his consent processing of the sensitive may have control over or it may have processed. Here, the
personal information. But suppose he was accompanied by data controller is not the privilege holder. The data controller
his girlfriend, Ms. Dasig, at the time of incident and Ms. Dasig is not a client, not the sources, not the penitent, not the
rushed Horeb to the hospital. Obviously, the medical staff privilege holder insofar as the privilege communications are
would ask Ms. Dasig as to certain information relating to Mr. concerned. The law says that any legitimate information
Horeb which will require the disclosure of some sensitive controller may invoke the rule and therefore it may refuse
personal information like his age, status, blood type any disclosure of any privilege information in their control or
existing medical condition and so on and so forth. The possession.
processing of this is necessary to protect the health of Horeb
which may not violate the provisions under the data privacy RIGHT TO BE FORGOTTEN
act.
One of the rights afforded to a data holder, whose personal
4. If the processing is necessary for medical information is being processed, is to demand that any
purposes. personal or sensitive personal information relating to himself
should be deleted, erased, destroyed or otherwise taken out
Illustration: Horeb is sick of corona virus and part of that of the filing system of any data or information controller if
treatment is to infuse blood and requires a blood donor. The this personal or sensitive personal information is found to be
processing of the blood will entail the processing also of incomplete, inaccurate, false and unauthorized.
sensitive personal information relating to Horeb the recipient
and the donor. This will not violate of the provisions of the ANTI-PHOTO AND VIDEO VOYEURISM ACT
Data Privacy act because it falls under the exceptions to the
prohibition. This law punished basically the act of taking a photo or video
coverage of a person or group of persons engaged in a sexual
5. If the processing is necessary to carry out the activity. The law does not define what makes an act sexual
legitimate non-business or non-commercial so obviously, it leaves to the court the discretion to determine
objective of a public corporation or if the act is sexual in nature to fall within the ambit of this
association law.

6. When the processing of the sensitive personal This law also covers the taking of a photo or video capturing
information is necessary to protect the rights a person’s private area. The private area refers to specific
and interest of any person in a court parts of the human body; any part not mentioned is
proceeding excluded. [MEMORIZE!]

Illustration: Horeb is charged with rape, the rape resulting 1. Naked genitals – If a photo or video coverage is
in the pregnancy of the victim and the birth of the child. And taken of a person totally naked showing off his gift
Horeb’s defense is that he was not responsible for the rape of abundance for all the world to see, that is
because it was Mr. Asentista. So, Horeb may move for DNA covered, if done under the conditions mentioned in
testing of the child and everyone involved. the law.

EXTENDED PRIVILEGED COMMUNICATION 2. Undergarment clad genitals – Not totally naked


but the genitals are covered by undergarments. If
Privileged information refers to any information which the a person is in his yellow Coach underwear and a
ROC and/or special laws classified as confidential information photo or video of him taken in this get up, that is
or communication. This may include communication between covered. So is a lady in a bikini.
lawyers-client, physicians-patient, priest-penitent, journalist
and their sources. 3. Pubic area – Not necessarily pubic hair. If you are
fond of brazilian wax where that area is denudated,
Privileged communication rule provides that only the it is still covered, so long as that area is captured by
holder of the privilege may invoke privileged communication the photo or video coverage. It is not required that
as an exclusionary rule. Meaning, if in case of communication there should be ‘growing trees in the vast desert of

U S C L A W | Page 24 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

the Sahara’. Just the pubic area is enough to qualify Illustration: A wife stumbled upon a sex video of her
under this law. husband and another woman and now the husband is being
prosecuted for concubinage. He may object to the
4. Buttocks – there is no distinction whether it is of a introduction and admission of the sex video on the ground of
male’s or female’s violation of the Anti-Photo and Video Voyeurism Act as it was
taken without his consent and under circumstances where he
5. Breast – this specifically applies only to females. If had reasonable expectation of privacy.
a photo or video coverage of a male is taken
showing his tender, pinkish breast, that is not The order will be issued by the court if:
covered even if taken without his consent or even 1) the court is convinced that the introduction in evidence of
under circumstance where there is reasonable the photo or video is necessary for the prosecution of the law
expectation of privacy. violator or offender;
2) the court is convinced that it is necessary to prevent
Violations: further violation of the Act.
1. It is the taking of photo or video coverage capturing
the specific activity or parts of the human body if The reason for this is all too obvious: given the sensitive
done: nature of the photo or the video coverage, it’s sexual content,
a. Without the consent of the parties or persons a public exhibition might be offensive to morality or public
involved; policy. The discretion to determine WON the evidence shall
b. Under such circumstances where there is be exhibited rests with court. If the court finds that the
reasonable expectation of privacy. conviction of the accused can be had even without the photo
or video coverage being introduced as evidence, then the
TAKE NOTE: If there is express consent, you don’t need the court can dispense such coverage. The practice now is that
reasonable expectation of the privacy because it is already a the lawyers will just show the soft copy to the court and to
waiver a waiver of the privacy. The reasonable expectation the adverse counsel to limit access to this sex intensive
of privacy becomes relevant only where there is no express content.
consent because its presence to be determined by facts and
circumstances would indicate implied consent. What happens if the act captured in the photo or
video is a criminal act? Is there a reasonable
Illustration 1: If a person and his girlfriend engaged in a expectation of privacy in crimes?
sexual act in the middle of Plaza Independencia at high noon,
there is no reasonable expectation of privacy given the place Atty: I don’t see any reason why Photo and Video Voyeurism
where the act has been committed. act should be treated any differently than that of AWTA. No
distinction is made by the law. So that even if it is an illegal
Illustration 2: A candidate in a beauty contest communication (2 persons conspire to commit a crime and
wearing bikini eventually committed such), the illegally tapped conversation
You cannot complain of a violation of your privacy if a may not be offered in evidence even if that is a very
paparazzi were able to take, even surreptitiously, a picture illegitimate act. Thus, the same is true with the Anti Photo
or a video coverage of yourself because of the absence of a & Video Voyeurism Act. The even if the act depicted in the
reasonable expectation of privacy. Take note of these photo or video is a crime, it may not be offered as evidence
conditions. against the person whose privacy is violated.

2. This also prohibits the copying, reproduction, In short, it seems that criminals, have reasonable
distribution, sale of a photo or video coverage taken expectation of privacy. If you are a criminal, you do not
in violation of the Act. announce that you are about to commit a crime, and that is
an intent for privacy. Otherwise, if the accused has no
TAKE NOTE: Consent to a particular act does not reasonable expectation of privacy, then all these laws will not
cover with it consent to all other prohibited acts. apply to them.

So, if a person consented to the taking of a photo or video Illustration 1: If Mr. Horeb barged into the room of Ms.
coverage of him in the act of sexual intercourse with his Centino and molested her sexually, but unknown to them,
girlfriend but did not consent to the reproduction, sale, and Mr. Asentista, a well-known photographer, chanced upon the
distribution of the recorded video or photo, anyone crime and took a video coverage of such crime. If this was
responsible for the unauthorized copying, reproduction, sale, offered as evidence against Mr. Horeb in the prosecution for
or distribution may be held liable even if the one who took the crime of rape, Mr. Horeb may object to the admission
the photo or video may not be held liable because of the under the Photo and Video Voyeurism Act.
consent given by the parties concerned.
So, if Horeb is prosecuted for rape, he may invoke. What
EXCLUSIONARY RULE: Any photo or video coverage taken about the photographer? He may be prosecuted. Mr. Horeb
in violation of the law is inadmissible against the party whose here has reasonable expectation of privacy because he does
right is violated, but admissible against the law violator not expect to be photographed in the performance of the act.
subject to the requirement of a court order.

U S C L A W | Page 25 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

Clarifications: EXCEPTIONS:
• Reasonable expectation of privacy is determined by 1. If a person, other than the accused, is the source
the circumstances of the case. of the semen/the injury/the physical evidence of the
• This does not apply when there is CCTV in the place, crime, such evidence maybe allowed.
it negates the reasonable expectation of privacy.
• Rule of thumb: If the place is public, where anybody Meaning evidence to prove that the accused engaged in
can be there at anytime, there is no reasonable other sexual behavior or the evidence of the victim’s sexual
expectation of privacy. The more the place is predisposition.
vulnerable to the presence of others, the more it
negates the reasonable expectation of privacy. Illustration: If Horeb is prosecuted for child abuse and his
defense is that he was not the one responsible but Mr.
Illustration 2: If Ms. Centino was prosecuted for a specific Asentista and one of the evidence presented is a condom
crime and this video is being offered. Let’s say in the which contains semen, an evidence of specific sexual conduct
supposed rape, Ms. Centino responded in kind and she, being maybe allowed and admitted to prove that the semen
married, the husband, upon seeing the video, took offense. belongs to someone else (Mr. Asentista). So Mr. Horeb may
The husband now initiated a complaint for adultery against establish the specific sexual predisposition of the victim being
Ms. Centino. Ms. Centino can always object to the promiscuous in character.
introduction of the photo because of the Anti-Photo and
Video Voyeurism Act. BANCK SECRECY LAWS

RAPE SHIELD RULE 2 Bank Secrecy Laws in the Philippines


1. RA 1405
This exclusionary rule is found in the Rape Victim Assistance ➢ the ACT that prohibits the examination or
and Protection act. Under this rule, in a criminal prosecution inquiry into of any bank deposit domestic or
for rape, any evidence of the victim’s past sexual conduct or foreign.
opinion of his sexual conduct or his sexual reputation is ➢ Deemed to be a law of general application
inadmissible in evidence. because it applies to all forms of bank deposits
whether foreign currency denominated or
EXCEPTION: If that piece of evidence tending to establish otherwise.
the victim’s past sexual conduct, opinion or reputation is ➢ Exceptions to the prohibition against
relevant and material to the issue of the case. examination or inquiry into bank deposit:
1) Consent of the depositor
So if your defense is that the sexual intercourse is 2) In cases of impeachment
consensual, or done in the instance of the victim, the victim 3) In cases of bribery and corruption of
being a woman of lose morale or a sexually promiscuous public official
woman, then maybe an introduction of evidence tending to 4) If the deposit is subject matter of
prove her sexual reputation may be admitted under the litigation
exception, but not when you are prosecuted for 5) With authority of the monetary board
statutory rape. Because in a statutory rape, the consent of
the offended party (which may be established by her 2. RA 6426
promiscuous sexual reputation) is irrelevant and is not ➢ foreign currency denominated bank deposit
material for purposes of statutory rape. Even if she which afford a protection absolute
consented, legally, it is still rape because the victim here is confidentiality of foreign currency denominated
incapable of giving consent. bank deposit as well as immunity from court
processes (attachment, garnishment and other
The sexual reputation, opinion, conduct of the victim is only court processes).
relevant to disprove, or establish the element of consent. ➢ ONLY exception to the absolute
confidentiality and immunity – Consent of the
CHILD ABUSE SHIELD RULE depositor

This is found in the law that afford protection to children PSB v. Corona
against discrimination and abuse. Supreme Court upheld the decision of the bank not to release
details about the alleged dollar denominated bank deposit of
In a criminal prosecution for child abuse, the following Chief Justice Corona, emphasizing that under this law only
pieces of evidences are not admissible: one exception is allowed and that is the consent of the
depositor which was not obtain in the case.
1. Evidences to prove that the victim engage in other
sexual behavior. Salvacion v. Central Bank
2. Evidence tending to prove the victim’s sexual Supreme Court made another exception that is public
disposition, sexual conduct or sexual character. policy. This involves a girl who was repeatedly rape by a
foreigner. During the prosecution the foreigner for reasons
known only to the police escorts was able to escape and
never been rearrested. He was convicted and the court
awarded the victim substantial amount of civil liability but the

U S C L A W | Page 26 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

monetary award cannot be enforced because the bank that in support of their theory of their defense as the case may
keeps the the deposit of the accused foreign national refuse be but not all instances where facts are established by
to release invoking the immunity granted by RA 6426 and evidence because even without the introduction of evidence
so the matter went up all the way to the Supreme Court and there are some facts that are deemed establish by law and
the Supreme Court while it acknowledge that the law only these are when the following evidentiary rules apply:
provides to one exception the consent which obviously was
not and could not be obtained in the case, the Supreme Court 1. Judicial notice
bent over backwards in accommodating the claim of the 2. Judicial admission
victim. Supreme Court went as far as going into the 3. Legal presumption
philosophical history of the law. Supreme Court said, the
reason behind this law was economic in origin, enacted at Judicial notice is an evidentiary rule premised on the
the time when the Philippine economy was in crisis, and so theory that there are matters that the court are presumed to
to help the economy turn around, the legislators enacted this know or ought to know by reason of their judicial functions.
law to invite investors. Supreme Court said, what the If this applies, parties need not present evidence to establish
legislators obviously envisioned when they enacted the law a fact because the court will take judicial notice of such.
is to invite long term investors whose deposits would really When the court takes judicial notice of a certain fact, that
help the Economy in the Philippines. Now, this guy the fact is deemed established as true.
accused was only a transient visitor where his deposit is only
for a short time. Supreme said, they could not see their way For purposes of judicial notice, matters are classified
clear how his deposit would help so Philippine economy so into two:
they said it is not intended to protect deposits of transient
visitors. 1. Mandatory matters
Are those mentioned in Rule 129 (MEMORIZE!!!)
DOCUMENTARY STAMP TAX
1) The existence and territorial extent of states
There are so called taxable documents which when offered 2) Their political history
in court as evidence may not be admitted unless they are 3) Forms of government and symbols of nationality
compliant with the documentary stamp tax law meaning 4) The law of nations.
documentary stamp tax are paid and cancelled (the stamp 5) The admiralty and maritime courts of the world and
cannot be reused). These taxable documents require their seals
payment of documentary stamp tax. 6) The political constitution and history of the
Philippines
Common taxable documents: 7) The official acts of legislative, executive and judicial
1. Original issued Certificate of Stock. departments of the Philippines
2. Leased contracts 8) The laws of nature
3. Deed of conveyance involving real property (deed of 9) The measure of time, and
sale). 10) The geographical divisions
4. Insurance policies
5. Special Power of Attorney 2. Discretionary matters
RULE 129 SECTION 2. Judicial Notice, When Discretionary.
If any of these so-called taxable documents is offered in — A court may take judicial notice of matters which are of
evidence in court it may not be admitted, you may object to public knowledge, or are capable of unquestionable
its introduction and admission of it is not shown to be not demonstration, or ought to be known to judges because of
compliant with the documentary stamp tax (Sec. 201 NIRC). their judicial functions.

TAKE NOTE: The inadmissibility of the taxable documents MANDATORY JUDICIAL NOTICE, EXAMPLES
not compliant with the DST Law is coterminous with the non-
payment of the documentary stamp tax law. IOW, it is only The existence and territorial extent of states
inadmissible if DST Law and tax is not paid for. The moment There might be an issue as to the existence of a certain state
the proponent of the evidence is able to pay, the court is also such as Timbuktu, or if the issue is about the territorial extent
obliged to admit the evidence. of that country. You do not need to prove its existence, the
court is duty bound to apprise themselves of this matter
The court is not allowed to exclude it outright but should whether or not that particular state exists.
require the proponent to comply with the documentary
stamp tax law. It is only when the proponent is unable The political constitution and history of the
without justifiable reason to comply with the court order that Philippines
the taxable document otherwise not compliant will be It includes Philippine history and political constitution. If the
excluded or admitted in evidence. issue of the case is who was the first president of the
Philippines then the answer is Aguinaldo, there is no need to
JUDICIAL NOTICE present a Katipunero to testify in court that indeed it was
Aguinaldo because we fought with him at Biak na Bato. Court
The rule is that, when there are factual issues in the case, is presumed to know this or ought to know this matter.
the court is oblige to conduct trial where the parties are Theoretically they are supposed to know these things but in
afforded the opportunity to present their respective evidence reality, they might be as ignorant as we are. Then, the

U S C L A W | Page 27 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

distinction between evidence and information take counsel would capitalize on that delayed reporting.
centerstage. That is the usual defense of the accused, saying
that the witness is not credible and that if he were
TAKE NOTE: Judicial notice dispenses with presentation of truly an eye witness, then he would have executed
evidence because judicial notice takes the place of evidence. an affidavit and come forward immediately after the
How does the court apprise itself of the knowledge of these killing.
matters? The court may resort to information not evidence.
Information can be sourced from any other sources. The But you will realize in some cases that Supreme
presentation of information is not governed by the rules of Court will dismiss this line of defense based on its
evidence. So long as you can present your information and ratiocination that “The court takes judicial notice of
cite some sources of your information, then the court will the natural reticence of witnesses to come forward
determine if it will agree with the tenor of your judicial notice. in order to avoid or prevent reprisal.” The court now
deals with human behavior as a subject of judicial
This is where Google takes center stage. If it is about history notice. The court is in effect saying that there is
then history books then if science then science books. If nothing unbelievable or incredible about someone
about the art of sexuality then get your hands on the coming forward even 5 years after the incident
Kamasutra. At times, the adverse party is also not required since that is human nature to be reticent and
to present evidence, but you are also equally allowed to reluctant to testify for fear of being involved or fear
present information and cite your sources, and the court will of possible reprisal from the accused. There is no
now determine which source is more credible and which evidence that people will react or act in that manner
tenor they shall adopt. but the court can supply the facts by judicial notice.

There are hearings required or that may be allowed: Clarifications:


1. Hearing for purposes of determining whether the • You need not have a hearing on matters in relation
court will take judicial notice especially when the to culture but you can always present your
matter is not a subject of mandatory but only information.
discretionary notice. • If you choose to conduct hearing, it can be at the
2. When the court need to mandatorily take notice of instance of the court motu proprio or at the motion
a certain matter but is in a quandary as to which of the party. If you are not confident of what tenor
specific tenor of the judicial notice it will take. the court will take, then you ask for hearing and
submit your information.
The measure of time • The Maria Clara doctrine has now been abandoned.
Illustration: If you are accused of raping Ms. Centino In the case of Amarilla, the court said that just
somewhere along Junquera where her apartment is located, because a woman comes forward and cries rape,
defense is that you could not have committed the crime we are not supposed to give it hook, line and sinker
because it took place at exactly 12pm and you were in because Filipina women are of a different variety,
Talamban, claiming that travel from Talamban to Junquera they are now conscious of their rights and demand
will take 30 minutes to 1 hour by jeep. Supposed you have equality. So, it does not necessarily mean that once
evidence that 30 minutes after the rape, you were found in a woman claims to be a victim of rape, it is already
a coffeeshop in Talamban and at that time, you could not the final truth.
have committed the rape because the travel time from
Junquera to Talamban will take 1 hour. Atienza vs BOM
The anatomical location of kidneys is a matter of judicial
Now, the court is supposed to do research. For example, the notice and it falls under laws of nature particularly science
court finds that the travel from Junquera to Talamban will and particularly biology, the science that deals with the
only take 10 minutes, the court will reject your defense composition of the human body and any other living
because the court takes judicial notice of the fact that the organism. But medicine is not covered under this.
travel time will only take 10 minutes. Therefore, it is very
likely that you were likely to have performed the crime. Dr. de Llana vs Biong
The Supreme Court said it could not take judicial notice that
The laws of nature whiplash injury is cause by vehicular accidents. Courts have
• The kinds of rape where there is a principle that no expertise when it comes to medicine. Science- judicial
especially a provincial lass claims that she is raped, notice while in Medicine, not.
she might be telling the truth because no woman in
her right mind would subject herself to the wagging TAKE NOTE: Differentiate judicial notice from personal
tongue of the public. If it were not true that she was knowledge. Personal knowledge of the judge is not judicial
raped, it refers to judicial notice of the culture of notice.
the community or Filipino women who would be
normally ashamed to come forward and their Illustration: There is petition for nullity of marriage filed by
willingness to suffer in silence. That is judicial Ms. Centino against Mr. Asentista on the ground of
notice. impotency. For one reason or another, Ms. Centino failed to
prove that Mr. Asentista was impotent since he refused to be
• Some eyewitnesses only come forward 1-2 years tested then failure to present preponderance of evidence
after the incident being complained of. Defense then petition is likely to be dismissed. Incidentally, the judge

U S C L A W | Page 28 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

of the case, Judge Dasig, was a former girlfriend of Mr. is not allowed to consider it as evidence. So now, how do we
Asentista and had a few encounters with him and can reconcile this with judicial notice?
personally vouch that he was not impotent. Can the judge
cannot disallow the petition on the ground of her personal BSP vs Legaspi
knowledge that Mr. Asentista was not impotent. While the This is an action to title to or possession of real property.
judge may have personal knowledge, it does not constitute Jurisdiction over a real action depends on the assessed value
judicial notice. It does not fall under any of those areas. of the real property through the allegations found in the
complaint. In this case, there was no allegation in the
DISCRETIONARY JUDICIAL NOTICE, EXAMPLES complaint thus a motion to dismiss was filed for lack of
jurisdiction because for lack of assessed value in the
1. Matters of public knowledge complaint there would be no way for the court to determine
2. Matters capable of unquestionable demonstration, if it has jurisdiction.
and
3. Matters ought to be known by judges because of The Supreme Court said that even if the general rule is that
their judicial functions. jurisdiction depends on the allegation of the complaint but
by way of exception, jurisdiction may be determined by the
PP vs Cabigquez attachments of the complaint because the attachment forms
This demonstrated judicial notice on matters of public part of the complaint itself. In this case, it just so happened
knowledge and matters capable of unquestionable that the complaint includes the tax declaration as an
demonstration. There was a separate prosecution for rape attachment which showed the value over 20,000. Thus, RTC
and robbery. After robbing a sari-sari store, the accused validly acquired jurisdiction over the controversy. The court
raped the store owner. As far as the robbery was concerned, applied judicial notice on the tax declaration which was the
the court convicted the accused and adjudged him civilly record of the same case even if it was not formally offered.
liable to pay P10,000 representing the value of the stolen
items consisting of sugar, canned goods, milk, coffee and BIR vs BPI
cigarettes. The accused appealed the decision and the civil BPI made an overpayment in its tax liability in 1989 thus BPI
liability contending that the court erred in awarding P10,000 opted to avail of tax credit to apply in 1990, but in 1990, BPI
because the complainant failed to prove the actual value of incurred a net loss thus it had no tax liability thus it could not
the stolen goods. The Supreme Court invoked judicial notice avail of tax credit. BPI then opted to avail of tax refund. BIR
stating that the value of commodities found in a sari-sari refused. Issue was whether or not BPI incurred a net loss in
store is a matter that the court can take judicial notice of, 1990 and whether or not it availed of tax credit. CTA ruled in
where the value is a matter of public knowledge and capable favor of BPI, ruling that in 1990, BPI incurred a net loss and
of unquestionable demonstration. did not avail of tax credit. BIR appealed to the SC through a
petition for review.
MATTERS OUGHT TO BE KNOWN BY JUDGES BY
REASON OF JUDICIAL FUNCTION The Supreme Court ruled that BPI incurred a net loss and
that it did not avail of tax credit therefore it should be allowed
The rule is that the court can take judicial notice of the record to claim tax refund. The basis for their decision was the CTA
of the same case. It cannot take judicial notice of the records decision where the CTA made a definitive finding of these
of another case. facts. BIR argued that the court should not have taken
judicial notice of the CTA decision because it was not formally
Illustration: Horeb is prosecuted for BP 22 and estafa. offered but the SC said under the judicial notice rule, the
These two cases go forward independently. In the BP 22 case court may take notice of the records of the same case, the
which was prosecuted ahead, Horeb admitted that he issued decision of the CTA was appended to the petition for review
a check and despite the receipt of the notice of dishonor, he filed with the SC. It is part of the record of the same case
failed to make payment. In the separate prosecution for therefore the SC can take judicial notice of it even without
estafa, Horeb now denies issuing the check and the formal offer.
prosecution failed to prove that the check was issued by
Horeb for consideration. Suppose the judge who heard the Natividad vs CA
estafa case was the same judge who heard the BP 22 case, There was a complaint for payment of unpaid rentals in the
can the court take judicial notice of the admission in the BP22 form of sacks of palay. In the complaint, the plaintiff
case for the Estafa case? No, because the record of a theorized that there was an existing relationship with the
different case cannot be taken judicial notice of in another defendant wherein the plaintiff would lease his property with
case. the undertaking to pay the monthly rental in the form of
sacks of palay and that defendant reneged on his obligation
Can the court take judicial notice which is part of the so now plaintiff is constrained to file a case in court to collect.
same case but not judicially offered? The court dismissed the complaint because the defendant
Just because a document is attached to the records of the failed to prove the exact number of sacks of palay that the
case, this does not automatically become evidence. Rule 132 plaintiff and defendant agreed upon as payment for rentals.
Sec 34 requires that evidence to be formally offered before The exact number for rental was essential for the cause of
the court may consider them and the purpose for the offer action for recovery for unpaid rental. It was incumbent for
must be specified. So even if that document is attached to plaintiff to prove the exact number of sacks agreed upon to
the record of the case but not formally offered then the court serve as rental for the occupancy of the land. The plaintiff
argued that the court should have taken judicial notice of his

U S C L A W | Page 29 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

affidavit attached to his complaint because that affidavit favor, but for one reason or another, your witness turns
detailed the alleged number of sacks that the parties agreed around makes adverse statements against you, those
upon to constitute rental payment. The court said that even adverse statements are admissible against you because he is
if the affidavit was attached, the court may not consider it your witness.
for lack of formal offer invoking Rule 132 Sec 34. The court
did not take judicial notice although it was physically part of What’s your remedy in order for the testimony of the
the complaint. witness will not be binding against you?
The Rules allow for you to declare the witness as a hostile
So how do we now establish the demarcation line witness so that you will be allowed to impeach the witness.
between judicial notice involving records of the same If you successfully impeach him, his testimony which is
case and requirement of formal offer? adverse to you, may now be discredited and may now be
disregarded by the court.
Atty: My opinion is this: when the record of the same case
is required to be formally offered or formal offer is possible, TAKE NOTE: So, now, a witness’ testimony is binding upon
and formal offer is not complied with, then it cannot be the proponent but not conclusive. Because the proponent
considered by court. On the other hand, if the record of the has the right to impeach the testimony of the witness by
same case does not need to be formally offered, apply declaring him: hostile. Otherwise, it remains binding.
judicial notice rule.
IN THE COURSE OF THE PROCEEDING OF
DBP v. Legaspi THE SAME CASE
While the tax declaration was a document evidence needed
to establish the plaintiff’s cause of action, ownership or Discussion: Judicial admission may be taken outside of the
possession, it is a real action. At that precise time that the court, so long as the proceeding outside of the court is
issue came up, there was no trial yet, and therefore no sanctioned by the court in the same case.
formal offer is required yet because that was a motion to
dismiss. You formally offer only during the trial. So, if that Classic examples:
document becomes an issue before trial, it will be faulty for 1. Deposition – Taken outside the court, presided over
the court to reject it because it was not formally offered, by a deposition officer and not by the court. It is still
when formal offer at that precise stage of the proceeding is part of the records of the same case, and therefore
not required. So, the court takes judicial notice of the tax any admission made in the course of the deposition
declaration even if it was not formally offered. taking is deemed to be made in the course of the
proceeding of the same case.
Different with: Candido v. CA 2. Admission made in response to a request for
-it was an evidence necessary to prove his cause of action, admission – Rule 26 as to modes of discovery
and there was already a trial. He failed to formally offer his procedure. Any admission in reply to the request is
evidence. Hence, it was not taken judicial notice. considered Judicial Admission.
3. Admissions made in the pleadings, manifestations
JUDICIAL ADMISSION of the lawyers or the parties in court.

This is another rule on evidence that dispenses with Rule on Judicial Admission
presentation of evidence but nevertheless establish a certain The fact admitted is deemed established even without
fact. evidence. It is the admission that takes the place of evidence.
An admission is conclusive upon the admitter. Any evidence
What is a judicial admission is an admission written or oral offered contrary to or different from admission cannot be
made by a party in the course of the proceeding of the same considered by the court EVEN IF it is not objected to or even
case. The form could be written when it is done in the if objected to by the adverse party.
pleadings or oral when it is to oral manifestation in court.
However, there are 2 exceptions to the rule that judicial
TAKE NOTE: It should be done by a party, and by a party it admission establishes a fact even without need for
includes a lawyer by extension. So, any admission made by introduction of evidence.
a party or his lawyer constitutes a judicial admission.
1. Plea of guilty to a capital offense
MADE BY A PARTY
A plea of guilty is a judicial admission, it is made by a party
What about an admission of a party’s witness? in the course of the proceeding of the same case. But, the
Not a judicial admission because a witness is not a party. But, fact of guilt there is not established even with the admission
nevertheless, his testimony is binding against you because made by the accused if it relates to a capital offense. Because
you are the proponent. That’s the risk that you take when under the rules of criminal procedure: if an accused pleads
you present a witness. guilty to a capital offense, the court is required to conduct an
inquiry as to the voluntariness of the plea and the extent of
When the party presents a witness, the testimony of the the full understanding of the consequence of the guilty plea.
witness, favorable or otherwise to the proponent is And most importantly, the court is required to order the
admissible against the proponent. that’s your witness. So, if prosecution to present evidence to prove the guilt of the
you present a witness who is supposed to testify in your accused beyond reasonable doubt. (You see? Despite that

U S C L A W | Page 30 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

admission, the court still needs to require the prosecution to Extrajudicial is made outside of the court. Anywhere
present evidence to prove the guilt of the accused beyond other than the court. Or it may be made inside the
reasonable doubt. So, it’s very likely that if the prosecution court during a proceeding, but that admission is
has no evidence against the accused. The court will have to offered an evidence not in the case where it is
acquit the accused, even if the accused admitted to his guilt.) made, but in another case.
This may sound crazy but this is not without constitutional
wisdom, the basis for this is: “presumption of innocence and 2. A JA is conclusive and binding upon the admitter, it
the need to protect the accused from the slightest coercion cannot be controverted. An extrajudicial admission
to confess”. is not conclusive. It is binding but not conclusive
upon the admitter. It can be controverted. Even if
2. Admission made in the course of deposition you made an admission outside of the court, you
taking can still present evidence to controvert that because
it is not conclusive.
It is judicial admission, but it needs a formal offer. 3. JA does not need formal offer. Extrajudicial
Remember, JA doesn’t need a formal offer because it is not admission needs formal offer. Otherwise, it is not
evidence, it takes the place of evidence. But not with respect admissible.
to admissions made in the course of deposition taking.
Because, the records of a deposition taking, if used by either How do you now present an extrajudicial admission?
of the party, needs to be formally offered to afford the other Illustration: Let’s say Horeb is accused of child
party to object to its admission. TN: the party who avails of pornography. He’s accused of being pedophile. Prosecuted
deposition taking does not become necessarily the proponent for child pornography. During the pendency of the case,
of the record of the deposition taking. So, you avail of the Horeb attended a birthday party of Mr. Asentista, and during
deposition taking, you are not required to adopt as your own the party while they have taken drinks one bottle to many,
any evidence that may be gathered in the course of the Horeb proudly admitted to Mr. Asentista that it’s true that he
deposition taking. Because deposition taking is nothing but a did commit a crime of child pornography referring to the
fishing expedition. So, it depends on the result. If the result pending criminal case against him. So, it’s an extrajudicial
is favorable to you, then you may offer it as evidence. If admission as it was not done in the courtroom. So how do
adverse, why offer it as your own? It may be offered by the you know offer the extrajudicial admission of Horeb in the
adverse party. pending case against him?

If a party decides to make use the records of the deposition Atty: Ideal way to offer evidence as an extrajudicial
taking, it will be required to make a motion for the opening admission: Call the one who heard the extrajudicial
and the formal offer of their deposition records. When it is admission. In our example, you call Mr. Asentista to the
formally offered, the other party will be given opportunity to witness stand. He will now relay to the court what happened,
object the admission in the same manner that a party objects specifically what happened when Horeb admitted him that
to a testimony of a witness, as if the witness is inside the he is in fact guilty of the offense. Mr. A obviously has no
courtroom. So, it is as if the deponent is inside the courtroom personal knowlegde as to WON Horeb is guilty of child
to testify. The same grounds for objecting a witness’ pornography. This is hearsay. Is it admissible? YES.
testimony given in open court are the same grounds that the
adverse party may use in objecting the admission of the RULE 130 SECTION 22. Testimony Confined to
records of the deposition taking. So, even if it is a judicial Personal Knowledge. — A witness can testify only
admission, it requires to be formally offered. to those facts which he or she knows of his or her
personal knowledge; that is, which are derived from
TAKE NOTE: Any judicial admission, if used in another his or her own perception
proceeding, ceases to be judicial and becomes extra-
judicial. For it to be admitted, it must be formally offered. Meaning, and EJC may be proved by the witness who heard
or learned of the admission even he has no personal
EXCEPTION: Admission made in reply to a request for knowledge of the truth and falsity of the admission. Because
admission under Rule 26. This is a kind of JA which CANNOT by its very nature, an EJC is an admissible as hearsay.
be used as extra-judicial admission in another case.
Bottomline: IT IS HEARSAY BUT IT IS ADMISSIBLE
JUDICIAL ADMISSION vs EXTRAJUDICIAL TO THE HEARSAY EVIDENCE RULE.
CONFESSION
Situation: The accused makes an EJC as he was coerced to
1. JA is made in the course of the proceeding of the do so by the police. Then come trial, he repudiates his EJC
same case. While extrajudicial admission is made and claims otherwise in court. If you are the prosecutor, how
outside the court OR it may be made in the course do you present the EJC? It was made with the assistance of
of a proceeding of a main case but offered as counsel and compliant with the Miranda warnings.
evidence in another case.
JA may be made outside of the court. So long as, it A: Present the investigator present when the confession was
is part of the proceedings of the same case. made or present the lawyer who assisted the suspect when
Example is deposition. Deposition is taken outside he executed the EJC. Their testimony is yes, hearsay. They
of the court but it is made as part of the proceeding have personal knowledge as to the fact of the execution of
of the same case. EJC, but they do not have PK as to the truth or falsity as to

U S C L A W | Page 31 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

the facts being admitted. However, still admissible because Elayda vs CA


EJC IS HEARSAY BUT IT IS ADMISSIBLE TO THE HEARSAY There was a complaint for collection of sums of money, filed
EVIDENCE RULE. by Elayda against the defendant. The complaint expressly
alleges that the defendant owes plaintiff P90,000. During the
CHARACTERISTIC OF JUDICIAL ADMISSION trial, the defendant by way of defense admitted that he owed
Elayda certain amounts but interposed the defense that he
It is conclusive upon the admitter, and being conclusive, it already paid in full, the obligation. So, during the trial the
cannot be controverted. So, evidence offered by the admitter defendant presented evidence consisting of receipts to show
which is different from or is contrary to an earlier admission that he already paid the obligation. But unfortunately for
made should be disregarded by the court even if this Elayda, the defendants were able to prove that they made
evidence is objected to not by the adverse party to be an overpayment. The receipts presented during the trial
consistent with the conclusive nature of the judicial prove that the defendants made payments more than
admission. P90,000 as alleged in the complaint. Realizing this, the
plaintiff offers in evidence during rebuttal a statement from
Santos vs. Lumbao the accountant tending to prove that what the defendants
There was this piece of land which was under state of co- actually owed plaintiff was not only P90,000 as alleged in the
ownership, and one of the co-owners decided to dispose of complaint, but actually P186,000.
or sell his aliquot part, his interest in the co-partnership. This
was bought by 3rd party buyer. Since the mother lot is still Consistent with the judicial admission principle, SC
under co-ownership, the buyer was not able to obtain a disregarded the evidence presented by Elayda to prove a
separate title over that very portion that the buyer bought bigger amount of P186,000. And this is where the SC
from one of the co-owners. Then the co-owner seller died. definitely ruled that the judicial admission is conclusive on
After the demise of the co-owner seller, the buyer now the admitter, such that any evidence different from or
demanded for the delivery of the title from the heirs, so that inconsistent with the admission should be disregarded by the
they would be able to, the buyer would be able to segregate court.
that portion and obtain a separate title over that specific
portion. But the heirs refused, which constrained the buyer LEGAL PRESUMPTIONS
to go to court to demand the delivery of title so the buyer
would be able to effect the partition. In their answer, the Legal presumptions – inferences derived from established
defendants admitted that the property was indeed sold by facts. These facts from which the presumption should arise
the predecessor. As a matter of fact, some of the heirs, who should be established not by any other means but by
are now defendants, admitted to having signed as evidence.
instrumental witnesses to the deed of sale. But during the
trial, upon the advice of the lawyer, defendants now Unlike judicial notice and admissions, LP do not totally
presented evidence during the trial to prove that no such dispense with evidence. If you are the party invoking the
deed of sale was executed, and now they denied having legal presumption on your favor, you have to prove that the
signed any document purporting that they signed it as factual bases of the presumption are duly established by
witnesses. evidence and it is only when the basic or foundational facts
are established by evidence that the legal presumption may
Now the Supreme Court of course disregarded the evidence arise. The fact presumed is the one that does not need any
presented by the defendants in the light of the principle of evidence.
judicial admission. Having already admitted the existence of
the deed of sale, and the fact that they signed, some of them Ex. Presumption of legitimacy – that a child conceived or
signed as witnesses to the deed of sale, they cannot now be born during the existence of a valid marriage is a legitimate
heard to claim otherwise. That is the principle of judicial child. You don’t need to prove the fact of legitimacy, but you
admission. need to prove by evidence the foundational facts: the
existence of a valid marriage and the fact that the child was
Spouses Benarao vs. Plus Builders conceived and born during such marriage.
This involves a subdivision house and lot. The buyers bought
from the subdivision owner or developer, and for failure to Once proven, it now becomes the burden of the party who
pay the balance of the purchase price, the developer was claims otherwise to prove the fact that the child is not
constrained to sue the buyer for the payment of the unpaid legitimate.
balance. In their answer, the defendants admitted having
owed plaintiff the balance of the purchase price. During the RULE ON PRESUMPTION: It is a rule on burden of proof.
trial, defendant presented evidence purporting to prove that When the legal presumption is on your favor, the burden to
they already paid the, they already paid in full the purchase prove the facts is shifted to the other party.
price. Again, consistent with the principle of judicial
admission, being conclusive on the admitter, the Supreme TAKE NOTE: Presumption cannot arise from another
Court said having admitted in their answer that they still owe presumption.
plaintiff the balance of the purchase price, they cannot now
be allowed to present evidence to prove otherwise. So, the presumption of legitimacy cannot arise from the
presumption that when a man and woman hold themselves
to the public as husband and wife, they are presumed to be
married. Even there is another presumption that the man and

U S C L A W | Page 32 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

woman purported themselves to be husband and wife and Relationship between Landlord and Tenant
legally married (presumed by law), you need to establish the This presumption provides that the tenant may not be
foundational basis for that presumption of legitimacy allowed to deny the title of his landlord at the
because the rule is a legal presumption cannot arise from commencement of the relation between landlord and tenant.
another presumption. When a party enters into a lease contract with another, the
tenant is in effect recognizing the title or the better right of
Angeles v. Maglaya possession of the other party. Why would the tenant enter
It’s a proceeding for the settlement of the estate of the into that leased contract with the landlord if he doesn't
decease, the estate now is being contested between the wife recognize him to be the owner.
and a lady who claims to be a legitimate daughter of the
deceased. The problem with this lady is that she never So, the tenant may not be allowed to refuse performing his
bothered to prove that she is legitimate because she relied obligations under the lease contract like payment of the
on the presumption of legitimacy, she also never bothered to rental on the ground that the landlord is not the owner or
prove the existence of a valid marriage between her that the landlord has no better right if possession. Even if it
purported father and mother because she relied on the turns out that the landlord is not the owner, you are bound
presumption of marriage. The SC said that presumption to pay, you are bound to comply to the lease contract.
cannot arise from another presumption.
Illustration 1: Suppose Horeb is looking for an apartment,
2 types of legal presumption: an open space where he could conduct his child pornography
1. Conclusive business, where he could install his complex network of
2. Disputable computer system. So, he leases from Mr. Asentista who
misrepresented to Horeb that he is the owner, when in truth
Whether conclusive or disputable, the proponent must and in fact he is just an impostor. The office space belongs
establish the foundational facts. The only distinction between to Ms. Centino, but Mr. Asentista said to Mr Horeb that he
conclusive and disputable is that conclusive does not allow already bought if from Ms. Centino, when in fact that deed
contrary evidence to overcome it, disputable on the other of sale was forgery.
hand allows contrary evidence to dispute it.
So, lease contract was entered into by Horeb and Mr.
So, if it’s conclusive presumption like estoppel by deed – no Asentista. Few months later, Horeb got the surprise of his life
amount of contrary evidence may be allowed to controvert it when Ms. Centino told him that he was leasing the property
so long as the foundational facts are duly established. from an impostor because Ms. Centino is the real owner of
the property subject to the lease contract. Can Horeb now
ESTOPPEL BY DEED refuse to pay the lease rental given that he now realized that
he is leasing property from a wrong person?
This happens when a party deliberately led another party to
believe that a certain fact is true and that other party act in A: No, because Horeb is bound by the conclusive
accordance with that belief. That party who made that presumption that Mr. Asentista has the title or better right of
representation may not be permitted to falsify it in case a possesion. In so far as Mr. Horeb is concerned, he is bound
litigation arises out of that act or declaration. If someone by the conclusive presumption and he should pay.
claims something and the other party acting in good faith
believes in your representation and acts on the basis of that
belief, the party making the representation cannot turn Illustration 2: Ermitanyo vs Paglas
around and say “I was only joking” because that is conclusive This involves a lease contract by the 2 parties, the lessor and
upon the party making the representation. the lessee. The landlord, during the existence of the lease,
obtained money from a creditor and as a security of that
Illustration: If at one time the City of Assessor of Cebu loan, the landlord executed real estate mortgage over the
sends you notice of real estate tax assessment because the property subject of the lease contract. So, the lease contract
City of Cebu believes that you are the owner of that piece of is mortgaged in favor of another. For failing to pay the loan,
land, but in your effort to avoid payment of real estate taxes the creditor foreclosed the real estate mortgage and acquired
you set a letter to the city assessor disclaiming ownership, the property at the foreclosure sale. After becoming the
you misled the city assessor that you are not the owner of owner, the creditor-mortgagee sold it to the tenant so the
the property but you only leased it from Mr. Asentista. You tenant now became the owner of the leased property.
willfully and deliberately led the city assessor to belief that
Mr. Asentista is the owner but not you on whom the notice OTOH, the landlord mortgagor disputed the legality of the
of assessment was served. Acting on your representation the foreclosure proceedings. He said the foreclosure proceeding
city of cebu now foregoes the collection of estate tax but tries was void and therefore he remains to be the owner of the
to collect it from Mr. Asentista. Years later, the City of Cebu property and so he continued to collect rentals from the
expropriates the property and you now intervene in the tenant who now becomes the owner. But the tenant of
proceedings because you want your share in the just course refused. “Why would I pay rental when I am now the
compensation and you are now claiming that you are the owner?” The defense of the landlord was that the tenant
owner. That’s estoppel by laches. Were it not for your cannot deny his title invoking that conclusive presumption.
representation, the City of Cebu would not have acted
differently. So, you cannot be allowed to falsify it in case a The Supreme Court said, that conclusive presumption applies
litigation arises from such. only if what is being denied is the relationship at the

U S C L A W | Page 33 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

commencement, not the relationship that existed after the SC said that there is a presumption that everyone takes
commencement like in this case. The relationship now has ordinary care of his concerns, if you’re a depositor, you are
changed after the commencement of the contract where the expected to scrutinize every bank document that you are
tenant eventually became the owner and so the tenant now signing in relation to any transaction you have with the bank.
who became the owner may now deny the title of the SC said it was unbelievable not to complaint if indeed there
landlord because this is now not covered by that conclusive are any error, the frame of mind of Reyes was not to
presumption. withdraw only 100k but 200k. Only that the balance of her
existing account was not enough to accommodate the
Presumption that things happen in the ordinary amount of 200k, that’s why the amount actually drawn was
course of nature and ordinary habits of life 100k which amount was the amount deposited in the newly
Normalcy is presumed, things happen normally in the course opened account.
of nature. You don’t need to presume that something is
normal because normalcy is presumed. It is incumbent upon Presumption that one in possession of an item which
the party who claims otherwise to prove abnormality. is taken in the doing of a recent act, is presumed to
be the taker and doer of the whole act.
Atienza vs. Board of Medicine So, one in possession of stolen item is presumed to be the
The issue was the anatomical location of the human kidneys. thief, and if the person dies during the taking, the thief is
SC said no need to prove the location of the kidneys because also presumed to be the killer, because he is presumed to be
there is a presumption that things happens in the ordinary the doer of the whole act.
course of nature and ordinary habits of nature. It is a matter
of nature that human kidneys are located in the left and in People vs Newman
the right. If you claim that a kidney is located in the buttocks, Newman was involved in the crime of robbery and killing of
claim it and prove it. But relying in the normalcy of the the taxi driver. After the crime was committed. The police
location, no need to prove it because the law proves it. arrested the accused. Upon the arrest, some personal
belongings of the taxi driver were in his possession including
Related to that is the presumption every person is presumed the driver’s license and belatedly super imposed his face on
to take ordinary care of his concern. Self-preservation is the driver’s license. The court convicted the accused based
presumed. We are presumed to act consistent with self- on this presumption. As held, how the accused could possibly
preservation for our own benefit. So, if you claim that be able to take possession of the personal belongings of the
someone acts contrary to what is normal and consistent to victim of the crime of robbery and homicide. So, he was
human nature, the burden to prove is imposed to the party convicted not only robbery but also of homicide.
who claims otherwise. One in possession of the stolen item is presumed to be the
taker as the doer of the entire thing.
Jesusa Reyes vs. BPI
There was this BPI bank depositor who was entice by the TAKE NOTE: Disputable presumption may be overcome by
advertisement by the bank that anyone who would open a contrary evidence, but if not controverted and if allowed to
new account will get some freebies. So, she went to the bank stand uncontroverted, it may be sufficient to support a
to open a new atm account. She claimed that she intended conclusion. In criminal cases, it may be sufficient to support
to deposit 200k and at that time she have it with her 100k a conviction.
cash and she intended to withdraw another 100k from her
existing account with BPI. People vs Asenjo/People vs Newman
The conviction there was merely based of disputable
Following the normal banking process, the bank teller presumption.
assisted her and filled up for her data needed on the
withdrawal slip, one of which is the amount to be withdrawn. Q: How do you reconcile this with another presumption that
After the transaction, she went home and after few weeks, every present possessor should be respected in his present
she realized that what was reflected in the passbook was only possession as the owner of the thing possessed (even if it
100k instead of 200k. So, she complained, the bank insisted turns out that he is not entitled or has no right of
that only 100k was deposited. possession)?

She went to the court to demand for the other 100k, the A: The remedy of the party who claims otherwise is to go to
factual issue is whether or not Reyes deposited 200k. The court and prove that he has a better right of the possession
crucial piece of evidence that the SC took note of, which was over the property. But in the meantime, he cannot take the
the critical piece of evidence that made the SC decide the law into his hands and dispossess the present owner.
way it did, was the withdrawal slip itself. It is indicated that
the amount was 200k and beside the amount is the signature Illustration:
of the depositor. SC said that given location of the amount Squatters occupying your piece of land. You cannot just
and signature, it was impossible for Reyes not to notice the execute them because they do not have rights over the land.
amount of 200k. The amount was situated so close to the You cannot take the law into your hands. You have to resort
space where she affixed her signature. SC said she should to court and seek judicial relief through the remedy of an
have seen the amount, moreover, if the amount is incorrect, ejectment suit. This is the very reason why such remedy is
how come she didn’t correct this if her intention is to provided under the law. Because extrajudicial remedy is not
withdraw only 100k. allowed. This is consistent with the presumption that he who
is in possession of the property is presumed to be the owner.

U S C L A W | Page 34 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

So, how do we now reconcile? As between the two, the fact that when the insurance company tried to get copy of
presumption of ownership prevails. the medical records of the patient, now plaintiff, the doctor
upon the instruction of the plaintiff, refused to release the
Edu vs Gomez medical records. And so, the insurance company argued that
This involves a motor vehicle owned by a military man which had it been released, the records would have shown that the
was illegally taken/carnap. Subsequently, this vehicle landed cause of the hospitalization is a pre-existing condition.
in the hands of a buyer who bought it from a third party. Invoking the presumption that evidence willfully suppressed
While she was driving the vehicle, the traffic police pulled her would be adverse if presented. The Supreme Court rejected
over and impounded the vehicle. This resulted the possessor this argument holding that for this presumption to apply the
going to court filing an action for replevin to recover the suppression must be willful, meaning it maliciously done not
possession of the vehicle. The SC sustained it and held that when it is done pursuant to the exercise of a right. Here the
a person in possession of thing in the concept of an owner is patient was merely exercising her right, referring to the
presumed to be the owner. Thus, not required to prove or confidential nature of the medical record. She cannot be
present proof of ownership. Instead, the one who claims faulted for exercising her right. That can hardly constitute
otherwise has the burden of proof showing that he has a willful suppression.
better right over the said property. The possessor is not
required to file an action for replevin as she could have stood 2. This does not apply if the evidence
her ground and refuse turning it over to the police consistent supposedly suppressed is equally available at
with the presumption of ownership. the disposal of all the parties.
However, in reality, what is happening is contrary to what it
should be. In other words, if the party who invoked that presumption
has access to the evidence supposedly suppressed, he
Presumption that Evidence Willfully Suppressed cannot invoke this legal presumption. It is only when the
could be Adverse if Presented access to the evidence allegedly suppressed is limited only to
We also have the presumption that evidence willfully the party against whom the presumption is invoked, that this
suppressed could be adverse if presented. This presumption can apply. Because if it is equally available to
contemplates a situation when someone is supposed to be in the adverse party, then the adverse party could just present
possession of a vital piece of evidence, which normally he it himself if he believes that is adverse to the interest of the
would not have failed to present if it were in his favor. But other party.
for no explicable reason, that party fails or refuses to present
such evidence. That refusal or failure to present evidence People vs Padiernos
would give rise to the presumption that such evidence would A case involving a wife who killed her abusive husband. It
have been adverse to the party who failed to present. was established that before the trial an eye witness executed
an affidavit to support the case for the prosecution. And the
Illustration: eyewitness who testified that he witnessed the accused killed
So, if you claim to have paid the loan obligation, but without the victim. But for one reason or another the prosecutor
explicable reason you failed to present the receipt of failed to present the affidavit and failed to present the
payment. This would give rise to the presumption that either witness. Taking advantage of that failure to present the
there was no such receipt or such receipt would be adverse affidavit and witness the accused argued that the failure of
to the party if presented. It could be that such receipt the prosecution that present that affidavit gave rise to the
contains only a small amount and not the full amount of the presumption that that affidavit would have been adverse to
obligation. The normal behavior of a party in possession of a the prosecution had it been presented. The SC ruled that the
vital piece of evidence favorable to his case is to present it in presumption does not apply because the affidavit is equally
court. available at the disposal of the defense as well as the
prosecution, it is a public document. If the accused believed
Limitations: that it is adverse to the prosecution, the accused could have
1. The suppression of evidence can only be availed of the court processes to compel the production and
deemed willful if it is done without any submission of the document in court. So he cannot rely on
justifiable reason, so that if it is done the presumption.
pursuant to the exercise of a right that
suppression can hardly be considered willful. 3. Applies only if the evidence suppressed is a
vital piece of evidence not when it is only
Blue Cross vs Olivares corroborative or cumulative, meaning
There was this woman who procured a health insurance additional evidence only. Because the party
policy, she got sick, got hospitalized and incurred has the prerogative to determine which
hospitalization expenses. After her discharge from the evidence to present and which evidence not
hospital she asked for reimbursement from the insurance to present.
company, but the company refused on the grounds that she
was hospitalized for a pre-existing condition, which is an So, if the evidence supposedly suppressed is only
expected peril normally in any insurance policy. This corroborative or cumulative then the party could not be
constraint the patient to file an action in court to collect blamed for dispensing with this corroborative or cumulative
reimbursement, the defense of the insurance company was evidence if he believes that he has in his possession more
that it was a pre-existing condition that caused her vital and compelling evidence sufficient to support his cause
hospitalization and to prove its point it made capital of the or defense. That will not amount to willful suppression

U S C L A W | Page 35 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

because the suppression is with justifiable reason. The 4. If the disappearance of a person took place under
justifiable reason there is the discretion of the party to extraordinary circumstances involving danger of
choose which evidence to present, but this will not apply death, 4 years.
when the evidence is crucial and vital to the cause of the XPN: if the purpose is to remarry, 2 years
other party, because that will make it unjustified
suppression, willful suppression under the rules. Eastern Shipping Lines vs Lucero
This case enunciated the preponderance of evidence rule. A
PRESUMPTIONS RELATING TO DEATHS captain of a vessel who perish with the vessel, when the
vessel was caught in the eye of the storm sank along with
There are three presumptions relating to death: the crews on board. But before the vessel sank or capsize
1. Presumption of death. Captain Lucero was able to communicate with the employer
2. Presumption of survivorship. describing to the employer the precarious condition of the
3. Presumption of simultaneity of death. very strong winds. After the incident, the wife of captain
Lucero still insisted in the collecting of the salary of captain
Why are these presumptions necessary? Lucero his allotment. Contending that since captain Lucero
There are some proceedings which require evidence of can only be presumed dead after 4 years then she should be
death, without which parties could be held in suspended allowed to continue to collect the salary of Capt. Lucero who
animation. is still alive.

Illustration: Mr. Horeb is aching to get his hands into the The Supreme Court overruled the argument said that,
massive estate of his parents. Without death, no succession presumption cannot be applied because other than the fact
could take place. So, if someone claims succession, he should that captain Lucero went missing, the preponderance of
prove death. evidence shows that he also died in the very incident.
Preponderance of evidence negates the presumption of
The ideal way to prove death is there is a dead body or get death.
a witness to present a medical certificate or get someone
presents in the wake or burial so on and so forth that’s the Victoria Shipping V. Working Men’s Compensation
ideal proof of death. What happens if the body is nowhere to Commission
be found like a person just went missing in a considerable This also involves a crew member who jumped off the vessel
length of time, there would be no evidence of death and when he realized that a fire of unknown origin engulfed the
therefore Horeb would be on a suspended animation ad vessel and since then he was never heard of. The father who
infinitum waiting for proof of death which may never come. was the only surviving heir of the missing crew filed a claim
But Horeb could not wait, so these presumptions will be for the death benefit s arising from the death of his son. The
helpful to Horeb. employer, this time, refused to pay contending that it is only
after 4 year that the missing crew can be presumed dead, so
Rule on the Presumption of Death in the meantime, no death benefits can be released. The
Death is presumed by a person’s mere absence. This only Supreme Court said that the presence of preponderance of
applies when a person went missing for a period specified by evidence militates the application of the presumption of
the rules. But if the absence is coupled by other evidence or death. So, don’t wait for the 4 years. That crew was proven
preponderance of evidence or proof that a person was indeed dead at the time he jumped off the vessel during the
dead the presumption of death does not apply, that person conflagration.
is proven dead even in the absence of dead body.
PRESUMPTION OF SURVIVORSHIP
Like say if the father of Horeb is devoured by shark or
anaconda. The body could not be found he went missing but There might be some issues or instances where it is
there was a witness testified that he was there in when the necessary to determine who of the two persons died first. In
anaconda devoured his father. No dead body, no medical presumption of survivorship, the end result here is, someone
certificate, but a witness who has personal knowledge of the is presumed to have died ahead of the other and someone
fact of death, would you wait 10 years before Horeb could to have died later.
enjoy the estate of his father? Of course not, because death
is proved by preponderance of evidence, so you do not apply But in the presumption of simultaneity, the net effect here is
the presumption. But if your evidence is only the fact a two or more persons who are called to succeed each other,
person is missing you apply the presumption. died together or simultaneously. The most difficult questions
to ask now though are: when does survivorship apply? When
So, you have different timelines: does simultaneity apply? How do you distinguish because the
1. For all purposes other than succession and under rules here are different?
ordinary circumstances, you have to wait 7
In survivorship, when two persons perish in a calamity, like
years.
wreck, conflagration, or battle, and it cannot be determined
2. For purposes of succession, 10 years.
as to who of them died first, from the circumstances; the
3. But if the one missing is beyond the age of 75, 5
survivorship is determined by the probabilities arising from
years.
the ages and the sexes of the parties subject to the following
rules:

U S C L A W | Page 36 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

- If one is below 15 y/o and the other is beyond 60 go to the wife because there is no succession. It will go to
y/o, the presumption is the older died ahead and the husband’s heirs.
the younger died later. By the way, disabuse your
mind of the notion that someone survives here. This If the issue arises from contract
should not have been called presumption of Illustration: Mr Asentista and Mr. Horeb had a bet that if
survivorship. Nobody survived, both died. It’s just ever Mr. Asentista dies ahead of Mr. Horeb, Mr. Asentista’s
that one died after the other/ one died ahead of the estate will be delivered to Mr. Horeb. On the other hand, if
other. Mr. Horeb dies ahead, his estate will be delivered to Mr.
- If both are below 15 y/o, the older is presumed to Asentista. While they are on board a plane going to Wuhan
have survived. So, if 2 people, one is 9 y/o and the and the pilot suddenly got a seizure, was attacked by corona
other, 10 y/o, this means that former died ahead, virus, so the plane crashed and everyone died. There is no
and the latter later. issue about succession because the both of them are not
- If both are beyond 60 y/o, the older died ahead. related. Whose estate will be delivered to whom? Apply the
- If one is below 15 y/o or above 60 y/o but the other presumption of survivorship, in which case, their ages
is between these ages, the rule is, the one between matter.
the ages of 15 and 60 survives; meaning died later.
So, the one below 15 or above 60 died first. CLASSIFICATIONS OF EVIDENCE
- If both are between the ages of 15 and 60, the rule
is if one is male and the other is female, the male is 3 classifications of evidence based on form:
presumed to have survived. 1. Object
o This is a sexist rule, this should have been 2. Documentary
amended. Strength cannot be determined 3. Testimonial
by sex, gender. But that’s the rule.
- If both of are the same sexes, the older is deemed OBJECT EVIDENCE
to have survived, the younger died (T/N: the
younger died earlier, and the older later. Object evidence is one that is addressed to the senses of the
o Note: same sexes but both between the court. So, when a thing is offered in evidence, the court may
ages of 15 and 60 examine it, observe it, or may view it. If a knife, a handgun
is offered in evidence, that is addressed to the senses of the
TAKE NOTE: Ages are relevant only if the purpose is other court. The purpose must be relevant to the issue in the case.
than succession because the rule applicable is presumption
of survivorship. 2 classifications of object evidence:
1. REAL
So, if the issue as to who died first arises from 2. DEMONSTRATIVE
contract, apply survivorship; the ages of the parties matter.
But if the issue is about succession, whether one can Real object evidence is the very object that is the subject
inherit from the other, the rule applicable is simultaneity in of the case. Like a murder weapon, or the injuries suffered
death; the ages of the parties are irrelevant. by a victim in a physical injury case.

So if husband and wife perish together in the same calamity, In the absence of the real object, you can have the
like plane crash, it cannot be ascertained who of them died substitute. This takes the place of the real object. The
first and who of them died later, the rule under simultaneity substitute is the replica/ representation of the real thing. Like
is that he who alleges the death of one prior to the other has photograph, map, diagram, sketch. If there is an issue of the
the burden to prove it. Without evidence, the presumption is location of a certain area, instead of going to the location,
that they died together (at the same time) and therefore no you can present a map. You do not want to expose or bring
succession takes place between the two because succession to court the victim of an injury, and exhibit the human body
presupposes that the decedent dies ahead of the heir. where the injury is found, you may present the photograph
that is depicting the physical injury.
So, if at the time of the plane crash the husband has 1 million
exclusive property deposited in the bank, and he is survived Requisites for admission of object evidence:
by his mother, while the wife is survived by her father, with 1. Relevant and Competent
no other heirs. Theoretically, let’s say, if the father could 2. Must be Authenticated
prove that the husband died ahead in that plane crash, then 3. Authenticated by a competent witness
succession takes place. The 1 million of the husband will go 4. Formally offered.
to the wife. Otherwise, without proof as to who died first, the
rule is simultaneous death. That 1 million will not go to the Authentication is process of establishing in court that the
wife because there is no succession. thing offered in evidence is what it is claimed to be. This boils
down to the purpose. If an object is offered in evidence for
If the mother of the wife could prove that the husband died a particular purpose, it should be established in court for that
ahead in that plane crash, succession takes place. And the 1 specific purpose. It should establish what it claims to be.
million of the husband will go to the wife. Otherwise, if there
is no proof as to who died first, the rule is that there is
presumption of simultaneous death, and the 1 million will not

U S C L A W | Page 37 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

Authenticating an Object Evidence the photographer, jurisprudence has it that anybody who is
For purposes of authentication, real object evidence is also competent, anybody who has personal knowledge of the
classified into three kinds: person, thing, event or is familiar with the person, thing,
1. Identifiable Object – those objects which have event being depicted and who can attest to the court that
peculiarities. Ex: Handgun with a serial number. the photograph is an accurate representation of the original
➢ Not required to present all links thing.

2. Non-identifiable but can be made identifiable – People v. Sison


objects which exhibit similar or identical physical Involves a mauling accident and the mauling accident was
attributes or conditions as the rest of objects of the captured in photographs. These photographs were presented
same kind. These are non-identifiable that can be in court, authenticated by a witness who was not the
made identifiable by placing distinguishing marks. photographer, this was objected to but the SC said in case
Ex: Fan Knife – placing of initials of demonstrative evidence while it is ideal to have the
➢ Not required to present all links photographer authenticate it but the authentication cannot
3. Inherently Unidentifiable – that which cannot be only be done by the photographer but anyone who can
distinguished. Ex: drugs testify as to when the photograph was taken, under what
➢ Required to present all links in the chain and must circumstances the photograph was taken and can attest to
account for the authenticity of the seized illegal the court that the person, thing, event depicted in the
drugs in their custody photograph is the accurate and faithful representation of the
original so anyone who was present during the mauling
Q: If you present a knife and you want to prove that this incident even if he was not the one who took the photograph
knife is the very knife used in the killing so you claim it to he can always attest to the court that this was what i saw
be the murder weapon. How do you authenticate this? during the mauling incident and i can attest that this really
happened as it is depicted in the photograph.
A: You have to present the witness because every object and
documentary evidence need a sponsoring witness for State v. Tatum
purposes of identification and authentication. You need The photograph here was taken through the use of a
someone who witnessed the crime because that witness machine called regiscope. The accused here stole a social
would be in the position to attest to the fact that that knife welfare cheque from the private complainant and then he
was really the one use in the killing. encashed this in a convenience store. But during his
transaction with the saleslady, he was captured by the
Or if you offer it to prove that the knife recovered at the regiscope machine. The regiscope machine producde a
crime scene, you get someone to testify that at the time he photograph of him from the waist up so he was captured.
arrived at the crime scene, he found this knife beside the During the trial, the photograph was presented but the one
body of the victim. who authenticated the photograph was not the one who
operated the regiscope but it was the saleslady.
TAKE NOTE: It is not correct to say that authentication is
the process of establishing in court that the thing offered in Supreme Court said that while it is ideal to have the
evidence is the very thing used in the commission of the photographer as the authenticator, he is not the only
crime. Otherwise, you cannot always authenticate an object evidence that can authenticate the photograph as the
evidence if you don’t get an eyewitness to the crime. saleslady may because she was the one who actually dealt
with the suspect. So, the saleslady is in a position to attest
With the same manner as when a sachet of shabu is offered that she dealt with the accused and the person depicted in
in evidence, you need to authenticate it and if the shabu is the photograph is the one who she dealt with during the
claimed to be the shabu subject of the buy bust sale, then transaction. She was a competent authenticating witness.
you get a witness who had personal knowledge of the
transaction and since shabu here is inherently an inherently Authenticating Text Messages
non-identifiable object, you now apply the rule of chain of People vs Enojas
custody. The chain of custody would establish that the DOCTRINE: The rule was that a text message may be
sachet of shabu being presented in court the very same authenticated by the party to the communication or anyone
shabu recovered from the suspect. who has personal knowledge of the communication.

Authenticating a Photograph / Demonstrative Object FACTS: There was a robbery and one of the robbers left his
Evidence cellphone in the taxi which was recovered by the police. The
You still authenticate a document if you claim it to be a other companions texted this cellphone so the police
forgery. If there’s s forged deed of sale, you need also to pretended to be the companion and texted back. The police
authenticate it for purposes of admissibility. Again, launched an entrapment operation which resulted to the
authentication is proving in court that the object presented arrest of the companions. The transcript of the text
is that which it is claimed to be. messages was offered in evidence and this was objected to
on the ground that there was no proper authentication
Normally, specially photographs, it should be authenticated because the one who authenticated was not the owner of the
by the photographer but it’s not always the case. The cellphone.
photographer is not only the competent witness who can
authenticate a demonstrative object evidence. Other than

U S C L A W | Page 38 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

RULING: The Supreme Court said that the text messages could have been possibly made before the witnesses actually
may be authenticated by the parties to the conversation or come at the crime scene.
any of the parties who has personal knowledge of the
conversation. The person who authenticated, while he may 3. Physical Inventory
not be the owner of the cellphone, he was a privy to the The received physical inventory should be documented,
communication by pretending to be the owner of the there has to be a physical inventory sheet detailing all the
cellphone. seized illegal drugs recovered from the suspect, describing
them in details, like the marking trace of each and every
CHAIN OF CUSTODY sachet of shabu, kilos of shabu, and the likes. So, the physical
inventory sheet will prove that an inventory of the seized
Authenticating Drugs / Non-identifiable Object illegal drug is actually made. The 3 witnesses required must
Evidence be required to sign the inventory AND they must also receive
Rule on authentication depends on the nature of the thing to a copy of such inventory.
be authenticated. There are identifiable objects which are
distinct. There are non-identifiable but can be made TAKE NOTE:
identifiable. And the object evidence which is the most People vs Manansala
difficult to authenticate is an object evidence which is Recording of barangay blotter is not enough and is not a
inherently non-identifiable which may include blood, liquid substitute for the conduct and giving of copy of the physical
substances, powder like drugs. inventory.

The whole process of authenticating illegal drugs rests in Sec 4. Photograph of the seized items
21 RA 6425 as amended by RA 10640. How is this done? The The law only requires the photographs of the seized item.
authenticating process which is essentially the chain of But to make sure that the seized items are the very items
custody. photographed, a particular police operation and recovered
from that particular suspect, the practice is, to include
1. Seizure and marking everyone present in the photograph. You have the photo of
The seizing or the apprehending officer is required to mark the seized items and photos that show the presence of those
the seized illegal drugs at the place of seizure immediately people during the operation.
after the seizure. The rule employs the terminology
“immediately after the seizure” which means place of seizure GR: Sec. 21 of RA 9565 should be strictly complied with.
itself. XPN: If not strictly complied with, apply the substantial
compliance rule
XPN: For justifiable reasons, marking may be done
somewhere else: nearest police station or at the nearest Requisites:
office of the apprehending officer, whichever is most 1. The police officer of the prosecution shall admit that
practicable. Remember, not just anywhere. there is non-compliance;
2. They should offer a justifiable reason for the non-
2. Required witnesses during seizure, marking, compliance
inventory and photographing
The witnesses required are: 1) the accused or his Usual justification by the police but also usually rejected by
representative or counsel; 2) elected public official; 3) the court is the allegation that the failure was because the
representative from DOJ or media. neighborhood tried to gather around the crime scene that
endangers their safety that’s why they have to withdraw
Again, they should be present at the time of the seizure and immediately from the scene. Many times that the SC rejected
the marking. Take note, what is only stated in the law now this argument taking judicial notice of the fact that the police
is that these three third party witnesses are only required operation bypassed the implementation of the search
during the inventory and photographing. There is nothing warrant, the police usually in a full battle gear. So, it is not
there that says that they should likewise be present during believable that they are overpowered by people or the
the seizure and the marking. suspect himself. Except if it can be proven that there was
really resistance.
But the SC recently indulged in a paradigm shift. Some called
it judicial legislation. Links in the Chain of Custody involving illegal drugs

People vs Larry Mendoza; People vs Que 1. Seizure of the apprehending or seizing officer
The rule now is, that three third party witnesses should be 2. Turnover of the illegal drugs by the apprehending
present not only during the inventory and photograph taking officer to the investigating officer
but also during the seizure and marking of the seized illegal 3. Turnover of the illegal drugs by the investigating
drugs. The SC pointed out that the reason why the presence officer to the chemist/crime laboratory to determine
of the third-party witnesses is needed under the law is to the contents of the substance
prevent planting, substitution and contamination of illegal 4. Turnover or submission of the illegal drugs by the
drugs. For the law to achieve its purpose, it is necessary that chemist to the court
the 3rd party witnesses must be required to be present right
from the seizure because if they are only required during the If the illegal drugs come to the hands of people who are not
inventory which takes place after the seizure, then planting mentioned above, the link is broken.

U S C L A W | Page 39 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

People vs De Guzman 2. The 2nd link (the investigating officer) should also
Seized illegal drugs were submitted by the investigating authenticate. The same, he should describe the
officer to the public prosecutor. SC said that such office had condition of the seized illegal drugs the moment he
no business in taking custody of the seized illegal drugs. received them from the 1st link. Testify as to the
steps or procedure undertaken by him to ensure
Authentication in Chain of Custody that the integrity is preserved. And then testify as
Again, for purposes of authentication, real object evidence is to the condition of the seized illegal drugs at precise
also classified into three kinds: moment he turned them over to the 3rd link. The
end in view is to establish that what the 2nd link
1. Identifiable Object – those objects which have received from the 1st link is the very same seized
peculiarities. Ex: Handgun with a serial number. Not illegal drugs that the 2nd link turned over to the 3rd
required to present all links link.
3. The 3rd link (the chemist) will have to account and
2. Non-identifiable but can be made identifiable – testify as to the condition of the seized illegal drug
objects which exhibit similar or identical physical the moment he received it from the 2nd link. The
attributes or conditions as the rest of objects of the steps or procedure he has undertaken to ensure the
same kind. These are non-identifiable that can be integrity of the seized illegal drug is protected. And
made identifiable by placing distinguishing marks. testify as to the condition of the seized illegal the
Ex: Fan Knife – placing of initials. Not required to moment he turned this to the 4th link.
present all links
Effect if section 21 which requires the process of
3. Inherently Unidentifiable – that which cannot be authentication is not sufficiently complied with
distinguished. Ex: drugs Jurisprudence has said it that failure to comply with section
➢ Required to present all links in the chain and must 21 which is a process of authentication merely affects the
account for the authenticity of the seized illegal weight and sufficiency of the evidence. So, it is a concern of
drugs in their custody the test of weight and sufficiency.

The rule is you need to call everyone to the witness stand. Atty: Let’s say illegal possession of illegal drugs or illegal sale
of illegal drugs are sufficiently established. In the prosecution
What should be the tenor of their testimony? of every crime, prove of corpus delict is indispensable.
Each link should establish that the integrity of the seized Corpus delicti by the way does not pertain to the physical
illegal drugs was preserved while in their custody by body like the cadaver of the victim. Corpus delicti refers to
indicating the condition of the seized illegal drug when they the presence of all the elements constitutive of the crime. So
first took first possession of such and the condition of such for prosecution of illegal possession of illegal drugs, the
when he turned it over to the next person in the link. dangerous drugs involved seized from the accused must be
presented, and that is the corpus delicti of these cries. It is
Demonstration: necessary that the evidence to be presented, exhibited and
offered in court are the very same drugs seized from the
1. When you call to the witness stand the 1st link (the suspect as the prosecution claims them to be. For this
apprehending officer) the latter should describe the purpose, Section 21 should be properly and sufficiently
condition of the seized illegal drug. This link is the complied with. Otherwise, it will result to doubt as to the
most critical because it is at this moment of arrest identity of the seized illegal drugs offered in court. And when
that the apprehending officer should make an there is doubt to the corpus delicti of the crime, there is a
otherwise non-identifiable object evidence to be doubt as well to the guilt of the accused. The net result of
identifiable. How does the apprehending officer do non-compliance of section 21 is the failure of the prosecution
that? The requirement of marking. So, he should to prove the guilt of the accused or failure to prove the
say that upon seizure he marked them to segregate corpus delicti.
the seized illegal drug from the rest of the corpus
of other evidence recovered. So, it’s the marking Note that you cannot move for the exclusion of the seized
that makes the otherwise non-identifiable object illegal drugs which a remedy available to any other evidence.
evidence identifiable. Lastly, he should testify on Let’s say the object, documentary evidence were seized from
the photograph taking of the seized illegal drugs. you without search warrant or other circumstance which
does not fall under the valid warrantless search, your ready
The 1st link will also testify as to what steps or available remedy is to move for the exclusion due to the
procedure he undertook to ensure the integrity of illegally seized object or documentary evidence. And if
the seized item is protected meaning the absence granted by the court, the pieces of evidence obtained illegally
of the possibility of substitution, planting or will never find their way in the prosecutor’s office or in the
contamination. The 1st link would testify that he court for they are suppressed. But not when it is drugs
placed it in a secure evidence safe. And this safe is because when you prove that section 21 was not complied
a locked place and he is the only one who has with, you cannot prevent the introduction of the seized illegal
access to such and that to his knowledge no one drugs. Neither you can ask for omission because as I have
had access to such safe. The 1st link should also said it has nothing to do with admissibly or inadmissibility.
testify as to the condition of the seized illegal drugs Thus, you have to proceed with trial.
at the moment he turned them over to the next link.

U S C L A W | Page 40 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

In ordinary cases if the evidence seized from the accused performance in their official functions, but in court
illegally is the only evidence available against the suspect and proceedings.
that evidence is suppressed or excluded, there is no way by
which the prosecution can prosper. There will be no trial You will note however, that in our Rules of Court, the only
because the prosecutor will not go forward with this case requirement for admissibility of an expert opinion is the
without aces against the accused. But not in drugs cases. expertise of the witness. So long as it shown to possess the
Prosecution trial is inevitable. necessary skills, knowledge, training and education – that
would be enough for the witness to testify on the scientific
You may file a to demurrer of evidence. If denied, you go to evidence and for the court to admit it. There is no
a full-blown trial. You have to present your own evidence. requirement that the particular scientific evidence should be
generally accepted by the relevant scientific community. For
OTHER OBJECT EVIDENCE purposes of admissibility, that is not requirement in our
Rules.
Three types of object evidence
A. Real Evidence Now obviously, the reason advanced by the SC in these cases
B. Demonstrative Evidence is the doctrine laid down in the very old case of US v. Pyre.
C. Scientific Evidence (very unique, it has its own This involves double murder case, where the accused during
peculiarity in the rule) the trial offered in evidence the result of a polygraph/lie
detector test which shows that he was not lying when he was
Common scientific evidence interviewed. The results tend to support his defense of
1. Lie detector test innocence but the US court all together rejected the evidence
2. Hand writing test on the ground that the polygraph test has not been generally
3. Paraffin test accepted by the relevant scientific community.
4. DNA test
5. Finger print test PH laws do not require general acceptance of a scientific
community, especially with the proposed amendment on the
How to prove scientific evidence? rules of evidence. Under Rule 133 Section 5, a provision that
There is a need for an expert witness. A test result must be deals with the standard in determining reliability of an expert
substantiated and authenticated by the expert who testimony. This rule states that in giving or in assigning
conducted the scientific examination. The testimony of the weight of the testimony of an expert witness, the court
witness requiring special knowledge, skills, training, should consider the following factors:
experience and education in which the witness shown to
possess maybe received in evidence. 1. If the opinion is based on a sufficient data or facts;
2. If the opinion results from a reliable methods or
GENERAL RULE: opinion of the witness is inadmissible. procedures;
EXCEPTION: opinion of the expert witness. 3. Whether the expert applied the methods or
procedures reliably; and
1. Polygraph or Lie Detector Test 4. Such other factors.

The scientific basis for lie detector test – it is a machine Referring to the second and third factors, these deal with the
designed to measure, monitor, detect the individual’s reliability of the scientific evidence through the opinion of an
physiological changes when he is subjected to a series of expert. Such reliability falls under weight and sufficiency.
questioning. The premise is that if the subject is lying, there Thus, this can be found under Rule 133 and not under Rule
is a consistent pattern of his physiological manifestation. If 128 (Admissibility). Because admissibility only deals with
the subject is telling the truth, there is also a specific relevancy and competency, and relevancy has nothing to do
distinguishing pattern of his physiological responses. with reliability.
Although scientist in the world are still engage in waging war
whether to accept this scientific method as reliable. Reliability is an issue or a matter that falls within the province
of weight and sufficiency or credibility. That is why even in
People vs. Daniel; People vs. Adoviso the perspective of our own rules, lie detector test has been
The result of a polygraph or lie detector test is inadmissible admissible but subject to the test of credibility, weight,
in court in our jurisdiction because it was not generally sufficiency, and reliability.
accepted by the relevant scientific community as a reliable
tool in determining truth and falsity. 2. Handwriting examination result
It has never been reliable, it is also prone to error, but still
There are two reasons offered for excluding polygraph or lie admissible. Several times where a court rejects an opinion of
detector in our jurisdiction: 1) absence of general acceptance a handwriting or document examination expert.
in the relevant scientific community; 2) unreliability. Nevertheless, it never prevented the admission or
introduction of this scientific type of evidence. There is no
Thus, totally inadmissible, you cannot even offer it as certainty in science, it always admits a room for uncertainty
evidence. Totally no value in our court proceedings although of the unknown.
law enforcement agencies use this in the conduct of their
investigations. This has been proven useful in the

U S C L A W | Page 41 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

3. Paraffin test Lucas vs Lucas


It is never conclusive that a person fires a gun. However, it The SC here ruled that before DNA testing is allowed the
is admissible. It even has a recognized probative value proponent should establish prima facie impossibility of
although corroborative in nature. The positive result of a paternity. So, DNA testing cannot be obtained without first
paraffin test only establishes the fact that nitrates are found establishing reasonable possibility of paternity so in other
in the body of the subject, but it is never conclusive as to the words, what the court wanted to avoid in requiring this
fact that that person whose body contains nitrates has condition is to prevent unscrupulous parties from using DNA
indeed fired the gun because the presence of nitrates in testing as a tool for harassment.
human body can be explained by a lot of reason other than In other words, DNA testing should not be the only evidence
the firing of a gun. Like if that fellow is that his favorite food to prove paternity. The DNA result can only be confirmatory
is peanuts or beans or leguminous plants, nitrates could be or corroborative of the prima facie evidence already
found in these substances, or when he is engaged in farming presented. If you cannot establish prima facie evidence of
he used to get in contact with fertilizers, nitrates are found paternity and establish sexual relation the court will deny it.
in fertilizers, or he is in pharmaceutical business. So, the
presence of nitrates in the human body does not necessarily
mean that that person fired a gun. Chances are these nitrates What is the probative value of a DNA test result?
found in the body came from other sources. That makes it In paternity cases, a negative result of DNA testing is
inconclusive. conclusive as to non-paternity, so no amount of contrary
evidence maybe allowed controvert non-paternity, it is
On the other hand, negative results are not conclusive as to conclusive. So, if the child DNA does not match the DNA of
the fact that the subject did not fire a gun. Because it is also the putative father that is conclusive that the putative father
possible that even a person actually fired a gun, no nitrates is not the biological father.
can be found in any parts of his body as when he washes his
body after firing or perfused perspiration hence to wash away The rule is different when the result is positive.
nitrates from the body, or even the direction of the wind, (a) Probability is less than 99.9% – it is corroborative
would explain the absence of nitrates in the body of the evidence of paternity.
person who fired a gun. All these factors could explain the It is admissible but standing alone is not sufficient to
absence of nitrates in the human body even that person establish paternity.
actually fired a gun. That makes it inconclusive and yet (b) 99.9% or more –disputable presumption of paternity.
admissible.
C. Upon conviction
4. DNA test It means that the accused had already been convicted and a
DNA recently recognized by the Supreme Court as an decision that already become final and the accused has not
admissible scientific evidence, as in fact the SC promulgated yet served the sentence or is still serving part of the
a special rule for DNA testing. DNA testing is premised on the sentence.
scientific theory that no two person have the same DNA
except for identical twins. DNA testing assumes greater The obvious purpose of this rule is to save the convict who
importance in cases where the issue of identity is involved. had already began his sentence or otherwise had not yet
started serving the sentence. Because at that instance, the
Under the existing rules of DNA evidence, DNA testing can positive result still matters because if the result is favorable,
be resorted to under any of the following instances: the accused will be released. He may file an action for Habeas
Corpus to compel the court to order his release. But if the
A. Before any case is filed convict has already fully served the sentence even if they are
Any party interested before filing any case may resort to DNA available DNA samples that can be used in attesting that can
testing and if the DNA testing result support his proposed no longer be resorted to. The obvious purpose of this is to
theory then that is the time that he may institute the action let him out of jail.
and use the DNA result as evidence in the case. If DNA test
resorted to before the filing of a case it can be done without This does not however consider the possibility of obliterating
leave of court and it can be resorted to by any interested other accessory penalties.
party. Take note, no need of leave of court is required
because there is no case filed. Safeguarding DNA samples
The rules on DNA, expressly and categorically require the
B. During the pendency of a case court to keep and maintain DNA samples until:
But in here, the proponent should obtain leave of court
before DNA testing may be allowed and if certain conditions 1. If the samples are taken, gathered, in connection
provided for under the rules are met, like there is an existing with a criminal case, the court should keep them
biological samples to be used in the testing and the existing until the accused fully served the sentence. Because
biological samples have not been subjected to a similar DNA by this time, DNA testing is no longer allowed and
testing or if they have been subjected to a similar DNA so the DNA samples may now be disposed.
testing the result requires confirmatory result or confirmatory 2. If it is gathered in relation to a pending civil case,
testing. And any other conditions listed. If these are the court is required to keep DNA samples until the
sufficiently complied with, then the court may grant leave for finality of the decision. Obviously after finality of the
the conduct of DNA testing. decision, DNA testing is no longer allowed.

U S C L A W | Page 42 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

People vs Hubert Webb


Hubert Webb and company were accused an even convicted IT IS THE EVIL OF TRANSMISSION that is sought to be
for the rape and slay of Carmela Vizconde. During the trial, avoided by this rule. Or to prevent fraud. How to avoid the
Hubert Webb, et. al. moved for a DNA testing but the RTC danger of transmission? If the issue is about the accuracy of
denied the motion. When the case was elevated to the the contents of a document, present the document itself.
Supreme Court, they argued that the State denied their right Because it is what is disputed, and this is what we call the
to due process when they were not allowed of DNA testing. ORIGINAL. This is the only way to prevent mistransmission
So the question there is, was the failure of the government because there is no mistransmission to speak of.
to preserve the DNA and allow the accused access to the
DNA sample constitutive of violation of due process such that When does the content of the document become the
their conviction should be reversed? (This was before the subject of the inquiry?
DNA rules took effect.) Consolidated Bank vs Del Monte Motor Works
The supreme court said the contents of the document
Supreme Court, invoking the decision in Maryland vs become the subject of inquiry when there is an issue as to
Youngblood, ruled that there is no obligation on the part of the ACCURACY of the wording, or the contents of the
the State to preserve DNA samples and make them available documents.
to the accused; except if the government is guilty of bad faith
which would result in deprivation of due process. SC said, An action for collection of sums of money filed by
government could not be faulted for not preserving DNA consolidated trust against del monte motor works and its
samples and not making the samples available to the officers. It was founded on an actionable document, a
accused. promissory note, but during trial, the plaintiff bank presented
a photocopy of a promissory note. When this was presented
Another reasoning advanced by the SC is that Webb did not in evidence the defendant objected to it on the ground that
anymore bother to question to the CA the adverse decision it is inadmissible under the best evidence rule being mere
of RTC in denying his demand for DNA. So, the SC photocopy.
interpreted this as a waiver of the right to pursue DNA
testing. The SC said the best evidence rule does not apply here
because the contents of the promissory note are not subject
BEST EVIDENCE RULE / ORIGINAL DOCUMENT RULE of inquiry because the defendant did not dispute on the
accuracy of the promissory note. They did not claim that the
Note: Under the proposed amendment, we are not supposed promissory note allegedly contains different wordings. Their
to call this rule as Best Evidence Rules but the Original only defense was that they did not receive the proceeds of
Document Rule. them loan that’s the version of the company. On the other
hand, the defense of the officers of the company was that
This rule is an exclusionary rule that applies only to they are not liable under the promissory note because they
documentary evidence. So, if the evidence is object of sign it not in their personal capacity but only as officers of
testimonial, forget about Original Document Rule. the company. They never raised any hell on the accuracy of
the wordings of the promissory note. There was no issue as
This is a rule of preference. Meaning if the original document to the accuracy and therefore it does not call for the
is available, present the original and nothing else; because application of the best evidence rule. It was only offered to
that original is the best evidence. However, if the original is prove that a promissory note was issued as evidence of the
not available, the next to best, the secondary, is allowed. loan and nothing more. It was not offered to prove the
contents but only its existence and issuance.
The secondary evidence, if allowed, is as good as the best
evidence because the secondary takes the place of the Hilario Lamsen v. People of the Philippines
original in its absence. This is not a question of which one SC said that a photocopy of the allegedly falsified document
has more probative value – they have the same probative is inadmissible to prove falsification or forgery.
value. It is only that the original is preferred, in the sense
that it should be the first option to be offered. This case involves a piece of land covered by certificate of
title. When the owner died, the heir, the niece tried to look
Under this rule, when the subject of inquiry is the contents for the title but she could not find it and so she went to the
of the document, no evidence other than the original shall be Register of Deeds to inquire. She was informed by the
admitted. Take note of the operative fact there: if the subject personnel of the Register of Deeds that the land was already
of the inquiry is the contents of the document. sold to a certain buyer (Hilario Lamsen) and so the niece filed
an action for the issuance of new owner’s copy of the
Illustrations: Certificate of Title. Lamsen opposed claiming that the
• Imagine a deed of sale where the parties agree that property was already sold by the original owner the auntie
the property subject of the sale is worth 100,000 already awarded to him. As an option, the niece instituted
but in the copy of such deed, another 0 was added criminal action for falsification. He went to the notarial
and so it becomes 1 million. department in RTC of Manila to secure a copy of the deed of
• Or when the deed of sale says that the amount of sale purportedly executed by her aunt in favor of Lamsen but
100,000 pesos shall be paid in 1 year, any delay she was told that the original could not be found, she was
shall make the buyer to pay interest, but in the only issued a photocopy of the deed of sale. With the
copy, manually done, the word “not” was added. photocopy of the Deed of Sale, she went to an NBI document

U S C L A W | Page 43 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

examination expert and true enough the NBI officer found and may be presented without accounting for the
that the signature was written by a different person that was other.
made a basis for filing for a criminal action for the falsification 4. When the original consists of voluminous accounts
of public document. Lamsen got convicted by the RTC, or records that cannot be produced in court without
convicted by the CA but acquitted by the SC. great loss of time and the fact sought to be
established from them is just the summary from the
SC said, “ in order to prove falsification, it is indispensable to whole. The contents of this original may be proved
compare the allegedly falsified document with the genuine by a summary. The summary is the original.
document. IOW, there is a need to compare the authentic
signature of the party whose signature is allegedly falsified An original under the proposed amendment is:
with the allegedly falsified signature but the authenticity of 1. The document itself – just a rewording of “the
the allegedly falsified signature can only be established by document, of which its contents are subject to the
presenting the falsified document itself not by a photocopy inquiry”
of the falsified document. SC said under the best evidence 2. A counterpart intended to have the same effect as
rule when the subject of inquiry is the contents of the the original by a person executing or issuing it – I
document the original should be presented. A secondary have reason to believe that this relates to the 2nd
evidence cannot be admitted without accounting for the and 3rd type of original document. Because, the
original. In this case, prosecution was not able to account for duplicate, triplicate, counterparts using the carbon
the unavailability or loss or destruction of the original. They sheet is intended to have the same effect as the
simply presented the photocopy which was just a secondary original by the person who executed it. In the same
evidence. SC said, cannot be admitted to prove falsification manner that the entries covered from the other in
or perjury of the subject signature. the ordinary course of business are intended to
have the same effect as the original by the person
What is an original document? executing it or issuing it. It is a counterpart
Take note the difference between the definition now of an intended for the same effect as the original by the
original document from the old or existing rule. person executing or issuing it.

Under the old rules, documentary evidence is any writing or What is a counterpart?
material containing letters, words, figures, numbers, symbols It is the same as the (2) and (3) under the old/existing rules
and other modes of written expression offered as proof of definition of an original document. So, it’s just a modification
their contents. But this has now been expanded by the in the use of terminologies.
proposed amendment.
In summary, the 3 definitions of an original document under
It now consists of writing, recording, photographs containing the old/existing rules are still covered under Section 4(a) of
letters, words, sounds, numbers, figures, symbols, or their the proposed rules but the terms are modified. They are,
equivalent or other modes of written expression offered as however, essentially the same.
proof of their contents. Photographs include the still picture,
drawing, stored images (in hard drive), x-ray films, videos What is a duplicate?
and motion pictures. A duplicate has been defined as any counterpart produced
with the same impression as the original, or produced from
Original documents under the old/existing rules the same matrix as the original, or produced by photography,
pertains to any of the following: or produced by electronic or mechanical re-recording, or
1. The document, which the subject of the inquiry is produced by chemical reproduction or produced by other
its contents – It does not matter if this is the relevant technique that accurately reproduce the original.
document which was first produced so long as the These are the so-called duplicates or counterparts. They are
contents are the subject of the inquiry. Even the treated as functional equivalents of the original, that’s why
photocopy when the subject of the content is at the rules say duplicate is admissible to the same extent as
issue then it becomes an original for purposes of the original. They are not original, but admissible to the same
the Best Evidence Rule. extent with the originals.
2. When the document is in two or more copies
executed at or about the same time with identical EXCEPTION:
contents – all copies are considered originals (Ex. 1. They cannot be admitted as the functional
Copies produced because of carbon sheets) equivalent of the originals if a genuine issue is
3. When an entry is repeated in the course of raised as to the authenticity of the original, or
business, one copied from another at or about the 2. Under the circumstances, it is unjust and
same time of the transaction – When you are inequitable to admit the duplicate in lieu of the
operating a sari-sari store, and you prepare in your original.
business journal the transactions of the day. You
have a wife who is also interested in your day-to- Original of a photograph
day transactions and she wants a copy but she does The original of a photograph is the negative or any print from
not want to write it herself so you have to copy from the negative, so the hard copy. The one being peddled during
your journal into the journal intended for your wife. weddings. So, if a dispute arose under the accuracy of the
If there is a dispute as to the entries of the journal, photo, either present the negative or the print out.
then any journal will be considered as an original

U S C L A W | Page 44 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

Original of a computer data the result of the ruling could have been otherwise
If the data is stored inside a computer or similar devices, the under the proposed amendments.
original is the print-out. Or other output readable by sight or • Any equivalent technique – this wording under the
other means, so long as it is shown to reflect the data proposed amendment is like a catchall provision
accurately. that as long as the copy accurately reproduces the
original then it is already functionally equivalent to
So, what is this output readable by sight? the original
Say you have a computer, Mr. Horeb composed a love letter • In our exam and discussions, any question involving
using his computer and he sent it to his bff Asentista. The the application should be in the light of the
data is stored in the computer, if a dispute arises as to the proposed amendment.
accuracy of the contents of this letter, you have to present
the original of this letter. If this is stored in a computer, you SECONDARY EVIDENCE RULE
have the option to present the print-out or the output
readable by sight. The output readable by sight is when you The secondary evidence may be allowed if the case falls
display it on the screen. under any of the exceptions, meaning the rules on original
document rule applies but the proponent may present not
What happens if the printout is reproduced as many the original but the secondary evidence because it falls under
as the parties want by photocopying process? the exceptions.
Under the duplicate/counterpart rule these photocopies are
counterparts produced by the same impression, the same EXCEPTIONS:
matrix, by photography. RULE 130 SECTION 3.
(a) When the original is lost or destroyed, or cannot be
The electronic or mechanical principle involved in the process produced in court, without bad faith on the part of the
of photography is the same in photocopy, same method or offeror;
process. In fact, if you want to secure an enlarge photocopy (b) When the original is in the custody or under the control
of the document or a miniature copy of the document, you of the party against whom the evidence is offered, and the
can obtain it through photocopy machine – there are latter fails to produce it after reasonable notice, or the
photocopy machine which offers this kind of functional original cannot be obtained by local judicial processes or
features. This is what is referred to under the rules. procedures;
(c) When the original consists of numerous accounts or other
If there is dispute as to the copies acquired by photocopying, documents which cannot be examined in court without great
any of the copies may be presented and are admissible to loss of time and the fact sought to be established from them
the same extent as the original except if there is a genuine is only the general result of the whole;
question as to the authenticity of the original or it is (d) When the original is a public record in the custody of a
inequitable to accept the duplicate. public officer or is recorded in a public office; and
(e) When the original is not closely-related to a controlling
BOTTOMLINE: For computer data, there are three issue
originals: 1) the digital file stored in the hard drive, 2) the
print out, 3) or any output readable by sight i.e. the file that a) When the original is lost or destroyed, or cannot be
you see on the screen. produced in court, without bad faith on the part of the
offeror
Discussion: That is the breakthrough on the rules on The secondary is either a copy, recitals of the contents in
evidence and this is brought principally by the introduction some authentic records, and testimony of witnesses, in the
by the electronic evidence rule. order stated but this is not strictly enforced. So, three
secondary evidences.
Before, when a document is an ordinary paper-based
document and there is an issue as to the application of the Atty: One of the possible problems is a case of loss,
Best Evidence Rule (now, original document rule), the destruction, unavailability of the original. Under the old
question should be resolved under the provisions of the Rules existing rule, it cannot be offered and admitted unless the
of Court. But if the document involved is electronic, the proponent account for the loss, destruction, and
electronic evidence rule will apply because obviously there is unavailability of the original. But going back to the new
difference and distinction between what is original in the BER duplicate or counterpart rule, a copy so long as it accurately
provided under the ROC relating to paper-based and what is a reproduction of the original is not a secondary evidence. It
original and duplicate in so far as the electronic document. can be presented, admitted and offered in court as if it is an
original.
But it changed now as with this amendment, it expressly
provides and includes computer data, which is electronic. It [Atty: I could not figure it out how a copy would be different
appears that there is no more distinction as to the application from counterpart or duplicate as this is defined under the
of the original document rule in both paper-based and new rules.]
electronic.
For this exception to apply, you should first prove:
Clarifications: 1. The existence and due execution of the original;
• Basing on the cases of Teodoro de Castro, Lagman, 2. The fact of loss;
etc where it involved a photocopy of a document, 3. The absence of bad faith; and

U S C L A W | Page 45 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

4. The contents. The contents now are to be proved Compania Maritima V. Allied Free Workers
by the secondary evidence, either the copy, It is now required, in so far as the third exception is
recitals, or testimonies of witnesses. concerned, that the original voluminous account of records
will be made accessible to the adverse party for examination
In so far as the first requirement is concerned, proof of or even court copying and in fact the court may even order
existence and authenticity, the following witnesses may be the production of the voluminous record or account in court.
presented to prove existence and authenticity of the original: The court may even order the production of the voluminous
1. The parties to the original document; records or accounts in court. The reason there being is that
2. The instrumental witnesses – or witnesses who the adverse party cannot be reasonably expected to
signed the original document; or if the document effectively cross-examine the witness who would be
is a public document, the proponent may present testifying on the summary, chart or calculation without the
the notary public who notarized the document; adverse party having access or opportunity to scrutinize the
3. The proponent may present a witness who was voluminous records or accounts.
shown a copy of the original document after its
execution; and (d) When the original is a public record in the custody
4. A witness who has been informed by either party of a public officer or is recorded in a public office
of the execution of the original document. Secondary evidence is the certified true copy of the original
5. Someone who was simply made aware of the issued by the legal custodian. He is the only one who can
execution and existence of the original document issue such certified copy.
by either party.
(e) When the original is not closely-related to a
De Vera vs Aguilar enumerated these possible witnesses controlling issue
who could prove the existence and authenticity of the original Atty: This refers to these instances where the Best Evidence
document before, as a requirement for presenting secondary Rule does not apply like when the subject of the inquiry is
evidence. not the content of the document but the document is offered
in evidence to prove not the contents but any other purpose.
Just be careful with the last witness (number 5) because this The most common instance where BER does not apply is the
witness is obviously a witness who would testify on a matter Collateral Fact Rule. In this rule, a document is involved but
which is not based on his personal knowledge and this the evidence and the contents of the document are not the
testimony will likely be objected to under the hearsay controlling issue.
evidence rule. Maybe if the testimony is not objected to (thus
there is waiver of the inadmissibility under the best evidence Air France vs. Carrascoso
rule), then that testimony might be admitted. An altercation that happened in the aircraft resulting to Mr.
Carrascoso being unjustly bumped off in favor of a white
Possible Witnesses Who Could Establish the Fact of man. Another attendant recorded in his notebook the
Loss: incident. The airline objected to the testimony of Carrascoso
1. Any witness who has personal knowledge of related to the fact of the one recorded in the notebook
the fact of loss- person who has personal invoking parol evidence rule. The airline insisted that the best
knowledge of the circumstances, whether it is evidence is the notebook.
destroyed, loss or unavailable
2. A witness who did a diligent effort to locate the But the court said that PER applies only of the subject of the
original in such places where a similar original inquiry about the contents of the document. It was not the
documents are normally kept. This refers to the controlling issue in this case. [Atty: Probably this is the one
office of the Custodian. referred to by the last exception]

(b) When the original is in the custody or under the People v. Tandoy
control of the party against whom the evidence is This is involving the possession for illegal drugs. During the
offered, and the latter fails to produce it after trial, the prosecution presented a photocopy of the marked
reasonable notice, or the original cannot be obtained money. This was objected to by Tandoy invoking the PER
by local judicial processes or procedures and saying that the original should have been presented.
If the adverse party, despite reasonable notice, failed to The prosecution failed to prove the existence of the sale. One
produce the original, the proponent may now consider the of the elements is consideration. And or failure to prove the
original as either lost, destroyed or unavailable and therefore consideration, this should result in the failure of the alleged
the corresponding secondary evidence will be the same sale.
secondary evidence available in case the first exception
applies. IOW, the second exception this will resolve in the But SC rebuffed Tandoy and reiterated that the best evidence
lost original document under the first exception. rule only applies if the subject of the inquiry is the contents
of the document. Here, the photocopy of the marked money
(c) When the original consists of numerous accounts was offered not to prove the contents but to prove its
or other documents which cannot be examined in existence. So, this is an instance where the original is not
court without great loss of time and the fact sought closely related to the controlling issue.
to be established from them is only the general result
of the whole

U S C L A W | Page 46 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

Arceo V. People So, if any of these processes are done manually, that
The prosecution presented a copy of a bank check. This was document cannot be considered as electronic.
objected under BER, the accused insisted that the original
check should have been presented. And failure to present the
original results in the failure to prove the issuance of the NPC vs Codilla
check. This involves an action for the recovery of damages as a
result of an accident where a foreign vessel rammed against
The SC ruled that that the gravamen of violation of BP 22 is the power barges of NPC, National Power Corporation. NPC
the mere issuance of a check. BER applies only is if the sued for collection of damages, and during the trial, pieces
purpose of offering in evidence the original is to prove the of evidence presented by NPC were photocopies of the
contents of the document because there is an issue of the various documents, most of them consist of communications
accuracy of the contents. The check was offered not to prove or letters that NPC addressed to the defendant. The
its content, but only to prove the fact of its issuance. Here, introduction and admission of these photocopies was
the original check is not closely related to the controlling objected to under the best evidence rule, but NPC argued
issue, meaning, it is not the issue in the case. It is not related. that these photocopies are admissible, being functional
equivalent of the original under the electronic evidence rule.
If item number 5 is an exception to BER, what is then
its secondary? ISSUES:
Atty: To be consistent with those decisions before the 1. Is the photocopy admissible?
amendment where SC said that since BER does not apply, 2. Is the document involved electronic or paper
the proponent can present any evidence to prove the fact in based?
issue. Anyway, that evidence is subject to the appreciation The ultimate issue is WON the photocopies are admissible.
of the courts if it is sufficient or not to support your
proposition. RULING: In order for the supreme court to resolve the issue
if the photocopies are admissible, it had to determine first if
Here, there is no such thing as secondary because obviously, the document, is in the first place, electronic, because it is
secondary applies only if the best evidence rule applies. only when the document is considered electronic that the
maybe the argument that it is admissible being a functional
Margarita Prodon vs. Alvarez equivalent of the original would fly.
Supreme Court said distinguish how to prove a fact or
document when the best evidence rule is not applicable. So, the SC referred to the very definition of electronic
Supreme Court said you don’t need to follow the strict rules evidence as found in the electronic rules of evidence and the
on secondary evidence because secondary evidence finds no SC emphasized the word there electronically. It said that a
application when the best evidence rule does not apply. document can only be said to be electronic if it undergoes
processes which are purely electronic. Unfortunately for the
Note: When BER applies, you follow the strict requirements NPC, the photocopies of these documents were declared by
of the secondary evidence. But if BER does not apply, no the SC as paper-based because of the manual signatures
need to comply. appearing on the documents involved. So, SC said that the
intervention or the presence of manual signatures on these
ELECTRONIC EVIDENCE RULE documents militate against the electronic character of the
documents. And so, because it is not electronic, the
Electronic evidence rule is an offshoot of the Electronic photocopies could not be submitted without accounting for
Commerce Act (ECA). In fact, it’s the implementing rules of the originals.
the ECA insofar as the evidentiary rules are concerned.
MCC vs Ssanyong
Under the electronic evidence rule, which is now being There is a facsimile copy, and that facsimile copy is copied.
adopted by the proposed amendment, there seems to be no
more distinction between an original and a counterpart or a So MCC is a domestic corporation engaged in importation and
copy. distribution of construction materials, particularly stainless
steel pipes. In the course of its business, it sourced its
What is an electronic document under the electronic products from a foreign supplier, Ssanyong, which is an
evidence rule? international trader. In the course of the transactions over a
It refers to a representation or a communication of period of time, they have adopted a practice where Ssanyong
information, data, figures, symbols, or other modes of would send MCC facsimile sent through fax machines,
written expression described however represented by which invoices detailing all the specifics of their transactions, and if
a right is establish or an obligation extinguished, or by which MCC agreed to the terms and conditions and all the
a fact is proved or affirmed, which is received, recorded, specifications contained therein, MCC would send the
transmitted, stored, processed, retrieved, and produced invoices back to Ssanyong still through the fax machine.
electronically.
In the beginning, one of the conditions was for MCC to open
NOTE: The operative fact there is the word electronically. a letter of credit to facilitate the payment of the supplies.
Now it was the nature of this letter of credit that the
In other words, an electronic document is one that transaction that Ssanyong would only ship from abroad to
undergoes any of these processes but done electronically. the Philippines the subject steel pipes only when MCC opened

U S C L A W | Page 47 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

the letter of credit because that would ensure that Ssanyong transmission, there are two paper-based document involved:
gets paid after the delivery the materials. For one reason or the original paper-based document which is being fed into
another, MCC failed to or refused to open the letter of credit the fax machine, scanned and sent to the other line and
and therefore, Ssanyong could not ship the stainless steel reprinted at the other end in the form of another paper-based
pipes. The problem was that Ssanyong had already secured facsimile copy.
the items from its own supplier. And so, in the meantime that
the shipment was suspended and Ssanyong had to safekeep According to SC, the fact that the facsimile transmission
these steel pipes in a warehouse. Of course, storage fees originated from a paper-based document and ended with
were incurred by Ssanyong for this purpose. And so, when another paperbased document is corrosive to the concept of
MCC sales refused to pay the cost of storage fees, Ssanyong paperless writing. So, the resulting facsimile copy as
went to court to collect. And in order to prove this contract reprinted on the other end is an ordinary paper-based
or transaction with sanyong, it presented the invoices, which document and therefore, it cannot be governed by the rules
served as their contract. The invoices however, were in its on electronic evidence.
photocopy of the facsimile copy.
The documents presented in court was the photocopy of the
ISSUE: WON the copy of the facsimile copy is admissible in facsimile copy and under the best evidence rule that governs
evidence under BER. ordinary paper-based document, these are not admissible
without accounting for the original copies thereof.
RULLING: No. The Supreme Court ruled that the photocopies
are not electronic evidence. Atty: Had Ssanyong and NPC has been decided today or
during the effectivity of the amendments, there would have
So, the supreme court had to make a distinction between a been no need for the Supreme Court to make the distinction
facsimile copy produced by traditional fax machine from the because whether it is an electronic or paper-based, a copy is
computer-generated facsimile copy. always treated as equivalent to an original document.

1. Traditional or ordinary – Where the info originated Chato vs HRET


from an ordinary paper-based doc fed into the The issue of this case is the printout copy of the paper-based
machine, scanned, sent thru the telephone line and ballots. The source document here is the paper-based ballots
reprinted at the receiving end which are shaded by the voters then fed into the PCOS
2. Computer-generated fax machine – Where the machine which scans the data found then data is converted
original data is electronically generated and sent to into its digital form and then printed out. The issue is the
the other end thru the telephone line resulting in a admissibility of the printout. SC said these are electronic
facsimile copy documents since the process involved is scanning. The SC
did not mention the issue that the printout came from a
And the supreme court offered two justifications for this source document which is paper based.
ruling:
1. By definition Drawing parallelism to the case of Ssanyong, not classifying
Our definition of electronic document/electronic data the facsimile copy since it was paper based, this factor was
message is actually patterned from the model law. The not taken together in this case. We can argue that this would
model law being adapted by United Nation Commission of violate its purpose which is to be paperless but then again,
international trade law. that is just an advocacy.

During the deliberation of the Electronic Commerce Act in the Q: How do we justify Maliksi and Chato in the light of the
senate floor, it was pointed out that the definition of EDM second reason of the SC that make a facsimile copy resulting
includes several electronic processes some of which includes from an ordinary fax machine not electronic because it was
telegram, telex and telecopy. This is the definition adapted sourced from a paper-based document?
by the model law which the Philippines was supposed to
adapt but in the final version of the Electronic Commerce Act, Atty: My advice to the students is to look at the facts. So if
there has been observed a slight variation in the definition. it refers to fax machines then use Ssanyong. If PCOS
Congress deleted certain processes particularly telegram, machines, then Chato case. Take note that the Ssanyong
telex and telecopy. According to experts, the process case were to be decided today then, there would be a change
involved in facsimile transmission is telecopy. Taking cue in the ruling because of the proposed amendments.
from the omission of these processes from our own definition
of electronic document, SC said the obvious purpose of the AUTHENTICATING ELECTRONIC EVIDENCE
framers in deleting telegram, telex and telecopy is to exclude
facsimile transmissions, meaning facsimile transmission Under the rules, paper-based documents are authenticated
purposely by definition were not intentionally considered as in a manner different from the manner of authenticating
electronic. electronic evidence.

2. Rationale of the law NOTE: We don’t authenticate a public document, we only


The obvious purpose of the electronic commerce act and its authenticate private documents. Because a public document
implementing rules (now the Rules on Electronic Evidence) is is presumed regular.
to promote a paperless writing as opposed to ordinary paper-
based documents. The SC noted that in a facsimile

U S C L A W | Page 48 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

How to Authenticate • Recorder


By the testimony of a witness who saw the parties sign the • Any person competent to testify as to its accuracy
document. Or evidence showing the genuineness and due so the witness should be able to testify that the
execution of the handwriting and signatures appearing on event, transaction being depicted in the recording
the private document. is an accurate representation of the event it
represents.
How is that witness competent to testify in this?
The witness is competent to testify because he is familiar EPHEMERAL ELECTRONIC EVIDENCE
with the persons involved by reason of his functions and most
likely, he is the one taking charge of possession of The rule does not define. It simply enumerates the following:
documents containing the signatures of the parties. 1. Text messages
2. Telephone Conversation
ELECTRONIC EVIDENCE OFFERED AS 3. Chat session
DOCUMENTARY EVIDENCE 4. Video and Audio streaming
5. And other similar electronic communication; and
Rule 5, Section 2, REE Manner of authentication. – Before evidence of which is not retained nor recorded.
any private electronic document offered as authentic is
received in evidence, its authenticity must be proved by any Ephemeral Electronic Evidence Authentication
of the following means: it can be authenticated by the ff:
1. Testimony of the party to the communication
(a) By evidence that it had been digitally signed by the 2. By any witness who has personal knowledge of
person purported to have signed the same. the communication.
(b) By evidence that other appropriate security procedures
or devices as may be authorized by the Supreme Court or by Illustration: If an issue is about the existence of telephone
law for authentication of electronic documents were applied conversation between Horeb and Mr. Asentista, and that
to the document. telephone conversation is not recorded and if the issue is
(c) By other evidence showing its integrity and reliability to about the text message or text exchange is not saved in any
the satisfaction of the judge. cellphone and no other evidence is retained or recorded, that
is ephemeral electronic communication.

You will note that the specific manners provided for by the What happens if it is recorded?
electronic evidence rule for authenticating electronic Then you again have to classify. If the communication is
evidence are way different from the procedures on offered as object to prove the existence of communication,
authenticating paper-based documents. you offer it as object and follow the rule for authenticating
object evidence under the electronic evidence rule. If it is
ELECTRONIC EVIDENCE OFFERED AS OBJECT offered as proof of its contents, follow the rules in
EVIDENCE authenticating documentary evidence.

Object Electronic evidence – audio, photographic or video Pp vs Enojas


evidence of events, acts or transactions. These are It involves text messages but the text messages were
admissible in court provided that two conditions are met: recorded. In fact, during the trial, the transcript of that text
message was represented. So, it was offered now as
1. This evidence is shown, presented or displayed to ephemeral electronic communication. Its admission was
the court; objected to because it was not properly authenticated,
2. It must be authenticated by the one who made the
recording or by someone who can testify as to the Supreme court said, there are 2 persons which can possibly
accuracy of the recording. authenticate messages:
1. Party to the exchanges
Under the old/existing rules, these types of evidence are 2. Person who has personal knowledge of the text
classified as object evidence. But under the proposed messages
amendment, these are the very same evidence classified now
as documentary. So, you have to be very critical on this, how It happens that the police officer who pretended to be the
to approach the problem if what is involved is any of this owner of the cellphone was in fact party to those message
object evidence. exchanges. And he has also personal knowledge of the
exchanges so the supreme court said, the transcript of the
Illustration: You have an audio recording and video text messages were duly authenticated.
recording, so you go to the purpose. If the recording is
offered to prove its contents, treat it as documentary, but if Pp vs Navarro
it is offered to prove its existence, facts, extraneous to its This involves sound recording. There are 2 issues involved in
contents, treat it as object and apply electronic evidence rule Navarro; Anti-Wiretapping and authentication of audio
accordingly. So, it should be: recording. When the accused argued that the audio
1. Shown, presented or displayed to court it being an object, recording, assuming it is admissible is not properly
because an object evidence authenticated by proper witness. The supreme court had laid
2. Present the: down the requisites to authenticate audio recording:

U S C L A W | Page 49 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

1. The existence of the audio recording it has to sale clearly indicates 100k as the consideration for the sale,
be established the true agreement of the party was 1M.
2. The person in the recording should be
identified So, the first condition is other party claim that another term
3. He be able to testify that the voice in the or agreement was entered into by the parties other than the
recording is the person purporting to be the terms embodied in the written agreement. Second condition,
owner of that voice in the recording. that other terms or agreement is sought to be prove by
evidence other than terms of written agreement. If other
Here, the one who authenticated the voice in the audio party says that subject lot is lot B, and he presents a witness
recording was the one who recorded the altercation and so testifying that he was present during the negotiation, he was
in the process of his testimony, he was able to identify the present during the execution of the contract. That is not
voice in the recoding and was able to establish the allowed because that is an extraneous evidence that seeks
connection between the voice in the recording and the to establish terms other than the written agreement.
accused to whom the voice is attributed. Take note of these
requisites and the manner of authenticating audio recording. 3. That other terms or agreement must be prior
or at least contemporaneous with the
PAROL EVIDENCE RULE written agreement would vary, modify,
alter or contradict the terms of the
Another exclusionary rule peculiar to documentary evidence. written agreement
The rule says that when the terms of an agreement are
reduced into writing, it is to be considered as containing all Illustration: On our example, one party claims that the true
the terms agreed upon and there can be between parties and agreement was Lot B. So that if such alleged other term is
their successors in interest any evidence of such terms other allowed to be proved by extraneous evidence, the existence
than the written agreement itself. of that other term which purports to establish what was
agreed upon is likely would modify, vary, or contradict the
As pointed out, the issue involves in a situation govern by terms of the written agreement which is Lot A. Or, if one
original document rule is the accuracy of the content. What party says that the agreement was for 1M, and such is prior
does the document contain? What was shown in the content? or contemporaneous with the execution of the written
In parol evidence rule, the other party says the agreement is agreement, it would vary, modify or contradict the terms of
what is found in the contract, the other party says no that is the deed of sale which is for 100K.
not what we actually agreed upon. So, the issue is about the
truth and falsity of the terms on the face of the document. PNB vs Chua
There was this bank depositor, Mr. Chua, who along with his
Purpose of PER: brother maintained a dollar time deposit account with PNB.
1. Prevent fraud In one instance, he needed cash to revive his machine shop
2. Maintain and preserve the integrity and business and went to PNB to withdraw a portion of his time
reliability of written agreements deposit account. However, his dollar time deposit had
already been applied as payment for his existing loan. He
RULE: Under the parol evidence rule, if there is an issue as denied having obtained such loan. So, he went to court to
to what is the true agreement of the parties, that issue demand payment of his time deposit. PNB presented a
should only be examined the four corners of the agreement. promissory note indicating therein that for the value
Neither party is allowed to present evidence other than the received, the plaintiff promised to pay the amount of it. By
four corners of the agreement to prove on something else. way of defense, the depositor testified that while he signed
That evidence used to prove the other agreement is now the promissory it is only for the purpose of securing future
called the parol evidence. loans and insisted that he never obtained a loan from PNB.
Thus, a standby promissory note. This was objected to by
Because parol literally means oral. But either oral or written, the bank pointing out that this alleges that an arrangement
if that evidence is other than the terms of the written where the PN was only pre-signed to secure future loans
agreement, it is parol evidence. It pertains to extraneous could not be found in any nook and cranny of the PN. The
evidence, either oral or written. SC upheld the argument of PNB by applying PER. Any
evidence in this case, the testimony of the depositor, to the
Three conditions that first should be established effect that there was such agreement, that the PN was just
before parol evidence rule comes into play: pre-signed as security for future loans, would vary, modify,
1. That there is a claim that other terms or or contradict the terms of the PN. Contrary to what it clearly
agreement were entered into by the state that there was a consideration for the loan for the value
parties received. PER excludes the testimony of the depositor
2. That that another term makes reference to an tending to change the terms of PN.
existing written agreement
Baluyot vs Balete
Illustration: there is an agreement like a deed of sale, the A contract of loan stipulating that the borrower will pay the
deed of sale expressly states that the subject lot is lot A or loan within one month. Due to non-payment, the plaintiff
the consideration is 100k. but one party claims that while the sued the defendant for collection. The latter testified to
deed of sale indicates that the subject lot is lot A, the true establish or prove that actually he agreed for one-year tenor
agreement of the parties was lot B. or that while the deed of

U S C L A W | Page 50 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

to pay the loan. This is contrary to the terms of the contract extraneous evidence under parole evidence rule. He has no
of loan. The SC held that it cannot be allowed under PER. business availing of Parole evidence rule as an exclusionary
rule.
Yutech vs Gonzalez
A contract where Gonzalez undertook to deliver to Yutech Lechugas vs CA
sum specified quantity of sugar within a stipulated period and Lechugas, Victoria bought a piece of land from a certain
consideration. The contract further stipulates that if there is Leoncia Lasangi, the DOS expressly indicates that the subject
failure to deliver, Mr. Gonzalez is to return the money, which lot is described as Lot A, when Lechugas learned that the
has already been given to him as consideration. Mr. Gonzalez defendants occupied Lot A without her consent and authority
failed to deliver within the period given and refused to the she sued for ejectment. Unfortunately, the ejectment suit
return the money already received as consideration of the was dismissed and so Lechugas instituted an action for
contract. Thus, Yutech instituted a collection suit against Mr. recovery of possession against the same defendants. During
Gonzalez. During the trial, Mr. Gonzales tried to establish that the trial the defendants presented no less than Leoncia
his obligation to deliver did not arise yet and the filing of the Lasangi herself who testified that, while it is true that he
complaint is premature, because allegedly their agreement entered into a contract of sale with Ms. Lechugas their
was that, he would deliver sugar only if it is from or sourced contract involved Lot B but the contract erroneously indicates
from his plantation. Thus, the filing of the suit is premature, Lot A. Victoria Lechugas objected to the testimony of
as no obligation has aroused yet. Again. The SC held that Lasangi, because obviously, this other term referring to Lot
under PER, it prohibits the introduction of an extraneous B was sought to be proved by extraneous evidence consisting
evidence to prove the existence of other agreements. The the testimony of Lasangi which if admitted would modify,
only admissible agreement is that of what the written vary or contradict the term of the DOS which expressly says
agreement provides. LOT A. The Supreme Court over ruled Lechugas’ objection.
The SC said, the Parole Evidence Rule is founded on the
Instances where PER does not apply: privity of contract. Only parties to the contract can avail of
1. PER applies only if the document partakes of the its benefits and only parties to that contract can be bound by
nature of a contract. It does not apply if it is not the same. So that if at least one of the parties to a suit is not
a contract. a party to written agreement, parole evidence rule does not
In sense, not all documents are covered by PER but only apply. So, the testimony of Leoncia Lasangi, even if it tends
those documents that consist agreements. to contradict the term of the DOS it was allowed and
admitted by the court, not being excluded by parole
Cruz vs CA evidence.
there was a sub-lease contract of a fishpond entered
between Mr. Cruz and Mr. Salonga. During the existence of Clarifications:
the sub-lease contract, Mr. Salonga delivered an amount of • The same ruling would have applied even if
35K to Mr. Cruz. The latter acknowledged such payment Lasangue was pleaded as one of the defendants
through an acknowledgement receipt. The receipt indicated because the doctrine is “at least one of the parties
that he received the amount of 35K from Mr. Salonga and to the suit is not a party to the contract” then parole
signed it. During the trial, Mr. Cruz testified that while he evidence rule would not apply.
received the amount of 35K, but it was not a loan he obtained • The defendants will not be considered as third
from Mr. Salonga. Instead, it was a payment by Mr. Salonga persons who would be benefitted even though they
of their pakyaw agreement relating to their sub-lease contrac were the ones occupying the said lot because the
over the fishpond. Mr. Salonga objected to the admission of point here is that the land they are occupying is not
such invoking PER. He contended that the other term could the subject of the contract.
not be found on the acknowledgment receipt. The SC held
that for PER to apply, the document must partake to the Parties to a written agreement who can invoke PER
nature of a contract, not a document which simply contains 1. Parties whose names appear on the written
a statement of a fact like a receipt. Such as what is in issue agreement and who sign them.
of this case. 2. A person who is neither a party nor a signatory
to a written agreement but he stands to benefit
NOTE: You look for the elements of the contract, that is the out of the terms of a written agreement.
parties, the terms, consideration, if this can be found in the
face of the document, that is a contract. If appropriate, apply Atty: I’m sure you would not forget the principle of
Parole Evidence. stipulation pour autrui. A stipulation in favor of a third party.
Through this principle, a person who is not a party to the
contract but who stands to benefit out of the terms of the
2. When at least 1 of the parties to the suit is contract may demand compliance or performance of the
not a party to the written agreement contract and in that sense, he is deemed to be a party to a
involved. contract.
The whole concept of Parole Evidence Rule is rooted on the
obligatory and mutuality nature of a contract. You have the So that if even the person is not a party to a contract but he
basic principle in contract, that contract is the law between is a beneficiary he is bound by parole evidence rule and such
the parties. So, PER being rooted on contract can only be he cannot also introduce extraneous evidence to vary, modify
invoked against a party to the contract, a person who is not or contradict the terms in the written agreement.
a party to the contract cannot object to the introduction of

U S C L A W | Page 51 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

Pacres vs Eugonia Robles v Lizarraga Hermanos


Facts: Pacres owned a piece of land. When Pacres died, he Facts: This involves a certain hacienda owned by Zacarias Sr.
was survived by six children. After the death of the father, When Zacarias Sr. died, his widow took over as the
four out of the six children sold their respective shares to a administratrix of the estate of Zacarias. Zacarias Sr. was
third party, Ygona. The two other surviving children did not. survived by 6 children, including Zacarias Jr. (Junior).
One of those who did not sell his share was Mario.
During the administration by the widow of the hacienda, she
Years later, the heirs of Mario instituted an action to compel entered into a contract with Junior for the lease of the
the heirs of the buyer Ygona to comply with the conditions hacienda for a period of 6 years. Pursuant to the lease and
allegedly agreed upon by the four selling heirs and Ygona by authority of the lease contract, Junior introduced some
when the four sold their respective shares to Ygona during improvements on the hacienda. But 4 years into their
their lifetime. contract, a third party, Lizarraga, came forward and offered
to buy the hacienda from the surviving heirs of Zacarias Sr.
According to the heirs of Mario, as part of their agreement, The problem was, the hacienda was still under the lease
Ygona undertook to pay all the real estate taxes due on the contract between the estate as represented by the widow
land subject of the sale, cause the survey of the land, cause and Junior. So Lizarraga had a hard time closing the deal. So
the subdivision of the land, and cause the issuance of in order to convince Zacarias (Junior) to give up the
individual titles covering the respective shares of all the six remaining portion of the lease contract, Lizarraga allegedly
surviving heirs, including the shares of Mario, their undertook to compensate Junior of the value of the
predecessor-in-interest. Since Ygona did not comply with the improvements that he introduced into the hacienda. This
undertaking, they sued for specific performance, to comply undertaking convinced Junior to give up the lease contract.
compliance with the conditions. So the sale of the hacienda was done. Subsequently
however, Lizarraga refused to compensate Junior for the
During the trial, the plaintiffs tried to prove that at the time value of the improvements that he introduced and therefore
the four surviving heirs sold their respective shares to Ygona, Junior contended that there was a breach of contract. Junior
there were these conditions agreed upon. Unfortunately for then instituted an action in court to collect the value of the
the plaintiffs, these alleged conditions were not incorporated improvements as allegedly promised by Lizarraga. During the
in the deed of sale that the four children executed in favor of trial, Junior tried to prove the existence of that
the buyer Ygona. agreement/promise.

This testimony was objected to under the PER because it The problem was that this alleged undertaking of Lizarraga
tends to vary, modify and contradict the terms of the written was not incorporated in the Deed of Sale that was executed
deed of sale. The petitioners argued that they are not by the heirs of Zacarias Sr. and Lizarraga. So this testimony,
prohibited from introducing this extraneous evidence to this extraneous evidence, was objected to under the Parol
establish the conditions, even if this would tend to vary, alter, Evidence Rule (PER). It was claimed that his testimony
modify or contradict the terms of the written deed of sale, varies, modifies, contradicts and alters the terms of the
because they were not parties to the written deed of sale. written agreement in the Deed of Sale which does not
Ruling: While Mario and the plaintiff themselves did not sign contain such alleged promise.
the written deed of sale because it was only signed by the
four siblings of Mario and the buyer, it’s obvious that Mario, Ruling: The SC ruled in favor of Junior. SC said that what is
being one of the heirs and co-owners, was a beneficiary in prohibited under the PER is the introduction of an extraneous
that alleged agreement or condition because part of that evidence that would establish the existence of other terms or
alleged condition was for the buyer to deliver the individual agreements prior to or contemporaneous with the written
titles covering the respective shares of all the six children agreement which term or agreement tends to vary,
including Mario. contradict, modify or alter the terms of the written
agreement. Conversely, if that prior or contemporaneous
If there was such agreement or conditions agreed upon, then other agreement does not vary, contradict, modify or alter
Mario stood to benefit out of this alleged condition. Applying the terms of the written agreement, then the PER cannot be
the principle of stipulation in favor a third party, Mario was invoked to prohibit the introduction of evidence to prove the
deemed to be a party to the contract and being a party to existence of such other agreement.
the contract, since Mario, their predecessor, was deemed to
be a party to the contract, the plaintiffs, In this case, the agreement between Junior and Lizarraga
where Lizarraga undertook to compensate Junior does not in
Mario’s surviving heirs being successors-in-interest, are any way contradict, vary or modify the written terms of the
likewise bound by PER. sale because the Deed of Sale refers to the hacienda which
was bought by Lizarraga from the heir of Zacarias Sr. as part
Note: In this case, the other siblings’ names were also not of their inheritance. But the agreement as to the
written in the contract but they were considered as parties compensation refers to the properties that Junior owned in
because he is a beneficiary of a stipulation pour atrui his own right.

3. Agreement is subsequent and does not Here, the SC distinguished between (a) the nature of the
vary, modify, alter or contradict the hacienda itself which is owned by the heirs by virtue of
terms of the original written agreement succession and (b) the nature of the improvements which

U S C L A W | Page 52 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

were owned by Junior in his own right and not by virtue of Wilson & Co. delivered and installed the distilling apparatus.
succession. When the distilling apparatus went into operation, it was able
to treat or process 6,000 liters per day of raw materials.
The Deed of Sale was an entirely different contract that Palanca cried foul accusing Wilson & Co. of violating the
refers only to the properties that the surviving heirs inherited terms of their agreement, insisting that what was agreed
from their father. On the other hand, the alleged agreement upon by the parties was for Wilson to deliver and install a
between Junior and Lizarraga refers to an entirely different distilling apparatus that has a capacity of 6,000 liters per day
property which was owned by Junior in his own personal of finished products. The issue of what is meant by 6,000
capacity and not as Zacarias Sr’s heir. liters per day took center stage in the case. Palanca said that
6,000 liters per day referred to finished products. In other
Therefore, these two agreements, the (1) Deed of Sale and words, the distilling apparatus should be able to produce
the (2) Agreement between Junior and Lizarraga should be 6,000 liters per day. Wilson & Co. on the other hand claimed
treated as two separate independent contracts. The proof of that it referred to the capacity of the distilling apparatus to
the existence of that agreement cannot be excluded under process or treat raw materials, not the finished products. The
the PER. contract simply says distilling apparatus with a capacity of
6000 liters per day. This was an intrinsic ambiguity.
TAKE NOTE: Even if it is prior or contemporaneous but not
inconsistent or contradictory, PER cannot be invoked to SC resorted to dictionary which accordingly defines capacity
exclude evidence tending to prove the existence of this other as referring to treating capacity, not producing capacity. The
prior or contemporaneous agreement. SC also noted the substantial variance in the purchase price
between a distilling apparatus with a treating capacity of
EXCEPTIONS IN THE APPLICATION OF PER 6000 liters per day from one with 6000 liters per day
producing capacity. The distilling apparatus with 6000 liters
For the exceptions to apply the pleading where the issue is per day capacity to produce cost substantially higher than
to be raised must be verified, otherwise, per shall apply. one with the 6000 liters per day treating capacity. Looking
into the contract the SC said that the purchase price
stipulated in the contract is more or less in the same level as
EXCEPTIONS: the prevailing price for the one pertaining to the treatment
A party is allowed to introduce evidence provided he raises and not production. Ergo, the SC said that the agreement
as an issue in the pleading any of the following: was that the contract referred to the apparatus for
treatment.
1. Intrinsic ambiguity, mistake, or imperfection in the
written agreement; That the written agreement does not reflect the true
2. That the written agreement does not reflect the true intention of the parties
intention of the parties; Ramos vs. Enriquez
3. The validity of the written agreement; There was a deed of sale executed by Enriquez in favor of
4. The existence of other terms agreed upon by the Ramos involving 20 parcels of land which Ramos intended to
parties and their successors-in-interest subsequent convert into a subdivision project. Because Ramos had no
to the written agreement; sufficient funds to pay in full the purchase price for all the 20
5. Waiver. parcels of land, the parties agreed that Ramos be allowed to
make a down payment and the balance of purchase price
If an evidence, otherwise inadmissible under the PER is not shall be secured by Ramos constituting real estate mortgage
objected to by the proper party at the proper time, that over the parcels of land subject of the sale. Alleging that
evidence may be admitted. Ramos failed to pay the remaining balance of the purchase
price, Enriquez instituted an action for foreclosure of real
Intrinsic ambiguity, mistake, or imperfection in the estate mortgage. Ramos opposed contending, and he alleged
written agreement in the pleading and during the trial, that his obligation to pay
the balance for the purchase price for the 20 parcels of land
Take note that the requirement here is the mistake, did not yet arise because such payment was conditioned
ambiguity, or imperfection must be intrinsic. Meaning, such upon Enriquez’s construction of feeder roads on the affected
which cannot be resolved by an examination of the four properties.
corners of the written agreement. The only way to resolve
the mistake, ambiguity, or imperfection is to refer to Enriquez objected to the testimony of Ramos to this effect
extraneous evidence – evidence other than those that can be invoking Parol Evidence rule because that alleged agreement
found on the face of the written agreement or the condition that the payment of the purchase price can
only be made or should only be made after the construction
Palanca vs Wilson & Co. of the feeder roads, is not found in the written deed of sale.
Palanca, the owner of a company manufacturing local liquor
(Kulafu), entered into a contract with Wilson & Co. In his The SC said there is an exception to the Parol Evidence rule
effort to increase production of his products, Kulafu and it is when the contract is alleged to be not reflective of
particularly, Palanca engaged the services of Wilson & Co. to the true intention of the parties. This was precisely what was
supply him with distilling apparatus. In their contract the done by Ramos in the foreclosure proceedings and as proved
parties stipulated that the distilling apparatus has a capacity during the trial that the deed of sale did not reflect the true
of 6,000 liters per day. In accordance with the contract, intention of the parties.

U S C L A W | Page 53 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

(This was allowed to be admitted because Ramos placed it parol evidence rule. Otherwise, the parties will be deprived
as an issue in his pleadings.) to negotiate and enter into a new agreement.

The validity of the written agreement Canuto vs Mariano


Ureta vs Ureta This is a contract involving the sale with a right to
This involves the story of Alfonso who had as many parcels repurchase. The seller was given a period of 1 year within
of land as he had many children. 14 children. One of the which to repurchase the property subject of the sale.
children of Alfonso happens to be a judge. In the guise of Anticipating her inability to pay on time, the seller
estate planning and in anticipation of the death of Alfonso, approached the buyer to request for a grace period which
the judge son, persuaded Alfonso to resort to estate planning was granted by the buyer, the agreement done orally. Within
by making it appear that he conveyed his properties to his the grace period before the grace period expires, the seller
children during his lifetime to avoid payment of estate tax approach the buyer and offered to pay the repurchase price
and for conveyance. but the buyer refused contending that the period to
repurchase had long expire and so the seller went to court
4 parcels of land were made a subject of conveyance and in to compel the buyer to accept the repurchase price and
favor of his judge son. Of course, there was no consideration, execute a deed of reconveyance. During the trial, the seller
it was only made to appear that the properties were sold to testified that before the expiration of the 1 year repurchase
the judge son by the father. period as stipulated in the contract she approached the buyer
and she ask for and was granted for a grace period and that
Alfonso eventually died, and was survived by his 14 children, before the expiration the grace period she offered to pay but
including the judge and he subsequently, the judge son also declined by the buyer. This testimony was objected to under
died and was survived by his wife and children. During the parol evidence rule because that alleged grace period could
settlement of the estate of Alfonso, the administrator not be found on the four corners of the deed of sale with
submitted to the court the inventory of all the properties repurchase. SC said, that is not covered, that grace period
forming part of the estate of Alfonso, which include the 4 was another term availed upon by the parties subsequent to
parcels of land which were made the subject of the deed of the deed of sale with the right to repurchase.
conveyance, executed by Alfonso in favor of his judge son by
way of estate planning. STATUTE OF FRAUDS

When the widow and the children of the judge son learned Make a cross reference to ARTICLE 1403, NCC which deals
about this, the filed a case in court to declare them as the with STATUTE of FRAUDS.
owner as being the heirs of the judge and to delist the parcels
of land from the inventory of the estate of Alfonso. What is this STATUTE of FRAUDS?
Under the statute of frauds principle, there are certain
During the trial, in their answer, the heirs of Alfonso tried to documents or contracts or agreements that cannot be proved
prove that the deeds of conveyance executed by Alfonso in orally, the only way to prove its existence is a written
favor of the judge were all fictitious and simulated contracts memorandum. If the existence of this document cannot be
because there was no consideration and made only for proved these contracts are deemed to be unenforceable. You
purposes of avoiding taxes. This was objected to by the heirs cannot demand for fulfillment.
of the judge under the Parol Evidence rule because the
alleged agreement that those deeds of conveyance were only Some of these contracts include:
made for purposes of estate planning and to avoid paying (a) An agreement that by its terms is not to be performed
taxes could not be found in the 4 corners of the deeds of within a year from the making thereof
conveyance. (b) A special promise to answer for the debt, default, or
miscarriage of another
The SC overruled the objection by applying the second (c) An agreement made in consideration of marriage, other
exception. If it is pleaded as an issue in the pleading. (TN: than a mutual promise to marry
the operation of the parol evidence rule is founded on an (d) An agreement for the sale of goods, chattels or things in
existing valid contract. So if the written agreement is alleged action, at a price not less than five hundred pesos, unless the
to be invalid, Parol Evidence rule does not apply and any buyer accept and receive part of such goods and chattels, or
extraneous evidence tending to prove the invalidity of the the evidences, or some of them, of such things in action or
written agreement is admissible) 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
The existence of other terms agreed upon by the in his sales book, at the time of the sale, of the amount and
parties and their successors-in-interest subsequent kind of property sold, terms of sale, price, names of the
to the written agreement purchasers and person on whose account the sale is made,
Not prior, not contemporaneous. It is not covered by the it is a sufficient memorandum;
Parol Evidence Rule and the obvious reason for this is that (e) An agreement of the leasing for a longer period than one
this confirms the rights of the parties to modify their year, or for the sale of real property or of an interest therein;
agreement, the freedom of the parties to change their (f) A representation as to the credit of a third person.
agreement. If the parties exercise this freedom, they may do
so by executing other agreements that may modify the terms TAKE NOTE: Certain specified contracts cannot be enforced
of the present agreement. It is beyond the coverage of the unless evidenced by a written memorandum or contract.

U S C L A W | Page 54 of 55
EVIDENCE | EH 403 PRE-MIDTERMS ATTY. TORREGOSA

These specific transactions cannot be proved by parol


evidence, only by a written contract.

EXCEPTION TO STATUTE OF FRAUDS: Contract has been


fully or partially executed.

If dispute falls under any of the exceptions, such as a claim


that the written agreement does not express true intention
of the parties, parol evidence can be introduced, testimonial
evidence or evidence in writing may be proved. Witness can
come forward and testify

Illustration: Suppose the contract involve is the real estate


mortgage but one of the parties claimed that and he raised
it in his pleading said that it’s not real estate mortgage that
was not the agreement, the agreement was Deed of Sale
involving a piece of land but this is properly pleaded in the
pleading. Under the exception in the parol evidence rule, the
party who raised the exception can prove it by introducing
parol evidence which may include oral but the true intention
of the parties is deed of sale and this deed of sale of this real
property is covered by the statute of frauds which cannot be
proved by oral. So how do we rule on the objection? On one
hand it is prohibited because the only exception in parol
evidence in the context of statute of frauds.

Atty: In Paras’ book, he said that it should be the provision


of the Civil Code (statute of frauds) that should prevail than
ROC (PER). It means that even if a party raised it as an issue
in the pleading that the written agreement does not reflect
their true intention and therefore it can be proved by parol
evidence, this does not apply when the true intention
of the parties is a contract covered by statute of
frauds.

SUMMARY:
General rule: Extraneous evidence may not be presented to
vary the terms of a written contract.

Exception: When the contract does not express the


true intention of the parties. (extraneous evidence
allowed)

Exception: When the contract which is the


true intention of the parties falls under the
Status of Frauds. (parol evidence not
allowed)

Exception: When the contract if


fully or partially executed.
(extraneous evidence allowed)

U S C L A W | Page 55 of 55