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LOPE E. FEBLE
Dean, MLQU School of Law

The following notes are intended for exclusive use of MLQU 2009 bar
reviewees. All rights reserved.

EVIDENCE
Matters
of judicial
notice

Evidence
introduced
by parties

Judicial
Admission

Exclusionary rule
Object

Best
Evidence
Rule

Documentary
Secondary
Evidence
Rule

Testimonial

Parol
Evidence
Rule

Admission
CharacterHea
Opinion Similar
Testimonial DQ of
and
Rule Acts Rule
Evidence Ru
Privilege Witness
Confession

BAR QUESTION (1981):


3

S is indebted to a bank. When the obligation falls due,


he fails to pay and the bank sues for collection. As part of
the evidence of the bank, the accountant of S is placed on
a witness stand and in the course of his examination he is
asked if he in turn is also indebted to the bank.
The lawyer of S interposes two objections to the
question (1) that it is impertinent (2) it would therefore be
improper to let him testify against himself.
If you were the judge, how would you rule on the
objections.

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RULES OF EVIDENCE

Requisites for admissibility

Relevant

Competent

Exclusionary
Rule
Constitution

Hearsay
Rule

Best
Parol
Evidence
Evidence
Rule

Disqualification
Rule

NOTE: Additional requisite for admissibility for doc & object evidence:
(1) authentication (2) authentication by a competent witness & (3)
formal offer

EXCLUSIONARY RULES
(As to competency)
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1.

Under the Constitution & statutes


1.1. Right against self incrimination (In re: Sabio)
1.2. Right against illegal searches and seizures
1.3. Right against privacy of communication
a. Editorials Privilege
b. Informers Privilege
c. Anti Wire Tapping Law (Torralba v. Pp.)
1.4. Confession and admission illegally obtained
1.5. Child Witness Rule

EXCLUSIONARY RULE
(As to competency)
6
Rules on examination of child witness rule
SEXUAL ABUSE SHIELD RULE ALSO KNOWN AS RAPE SHIELD
RULE: The following are inadmissible in any criminal proceeding
involving the alleged child sexual abuse:
1. Evidence offered to prove that the alleged victim engaged in other
sexual behavior;
2. Evidence offered to prove the sexual predisposition of the alleged
victim.
Exception: evidence of specific instance of sexual behavior by the
alleged victim to prove that a person other than the accused was the
source of semen, injury or other physical evidence shall be admissible.

EXCLUSIONARY RULES
( As to competency
)
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2. Under the Rules of Court
2.1. Mental incapacity or immaturity (Compare with S2, R92)
2.2. Marital or Spousal Disqualification (Alvarez v. Ramirez)
2.3. Dead Mans Statute (Icard v. Masigan)
2.4. Privileged Communication
2.4.1. Husband and Wife
2.4.2. Lawyer-Client (People vs. Sandiganbayan)
2.4.3. Doctor-Patient
2.4.4. Priest-Confessant
2.4.5.Public Interest Privilege
( Neri vs. Senate: Operational Proximity Test and Presidential
Communications Privilege)

BAR QUESTION (2008)


8

On August 15, 2008, Edgardo committed estafa


against Petronilo in the amount of P3M. Petronilo brought
his complaint to the NBI which found that Edgardo had
visited his lawyer twice, the first time on August 14, 2008
and the second on August 16, 2008; and that both visits
concerned the swindling of Petronilo. During the trial of
Edgardo, the RTC issued a subpoena ad testificandum to
Edgardos lawyer for him to testify on the conversations
during their first and second meetings. May the subpoena
be quashed on the ground of privileged communication?
Explain fully.

PROOF OF FACT IN LIEU OF EVIDENCE


9

Judicial notice R129

Mandatory
1.
2.
3.
4.
5.
6.
7.
8.
9.

Existence and territorial extent of states


Their symbols of nationality, political history
Forms of government
Laws of the nations (doctrine of processual presumption).
Admiral and maritime law and their seals
Philippine Constitution and history
Official acts of legislative, executive and judicial departments of the Philippines
Measure of time
Geographical division.

Judicial admissions- R129


Presumed facts R131

3.1. Conclusive Presumptions


3.2. Disputable Presumptions

ADMISSIONS AND CONFESSIONS


(Party Admissions)
10

S26, R130: the act, declaration or omission of a party as to


relevant fact may be given in evidence
Forms of Admissions

Admission by conduct
Offer of compromise
Admission by silence
Res Inter Alios Acta Rule/ Vicarious Admissions

Admission by co-partner or agent of a party


Admission by co-conspirator
Admission by privy of party

** Admission against interest vs declaration


against interest.

Bar Question (2008)


11

The mutilated cadaver of a woman was discovered near a creek. Due to

the witnesses attesting that he was the last person seen with the woman
when she was alive, Carlito was arrested within five hours after the
discovery of the cadaver and brought to the police station. The crime
laboratory determined that the woman had been raped. While in the
police custody, Carlito broke down in the presence of an assisting
counsel and orally confessed to the investigator that he had raped and
killed the woman, detailing the acts he had performed up to the
dumping of the body near the creek. He was genuinely remorseful.
During the trial, the State presented the investigator to testify on the
oral confession of Carlito. Is the oral confession admissible as evidence
of guilt?

CONDUCT AS EVIDENCE
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Similar Acts Rule

Evidence that one did or did not do a certain


thing at one time is not admissible to prove that he
did or did not do the same or similar thing at another
time;
Exceptions: specific intent, plan, knowledge,
Identity, scheme, system, habit, custom, usage and the
like

BAR QUESTION
(1994)
13
Through his lawyer plaintiff A sent to defendant B, through Bs
counsel, a request for admission of certain facts stated therein material
to the case pending between them, B did not reply at all.
On appeal from an adverse decision, A assigned as error the trial
courts disregard of the facts, the admission of which was the subject of
his unanswered request. A contended that as his request for admission
forms part of the records of the case, although not formally submitted
in evidence, and the records do not show that the defendant ever
replied thereto, there was a clear judicial admission by the defendant of
all the material facts stated in the request, and that had the trial court
considered such admissions, it would have been contrary to the
findings of fact. Is the plaintiff correct?

BAR QUESTION
(2003)
14
X and Y were charged of murder. Upon application of the
prosecution, Y was discharged from the information to be utilized as a
state witness. The prosecutor presented Y as witness but forgot to state
the purpose of his testimony much less offer it in evidence. Y testified
that he and X conspired to kill the victim but it was X who actually shot
the victim. The testimony of Y was the only material evidence
establishing the guilt of X. Y was thoroughly cross examined by the
defense counsel. After the prosecution rested its case, the defense filed
a motion for demurrer to evidence based on the following ground: Ys
testimony is not admissible against X pursuant to the rule on res inter
alios acta.
Rule on the motion for demurrer.

Bar Question (2008)


15

Bembol was charged with rape. Bembols father, Ramil,

approached Artemon, the victims father, the victims father,


during the P.I. and offered P1M to Artemon to settle the
case. Artemon refused the offer.
a. During trial, the prosecution presented Artemon to
testify on Ramils offer and thereby establish an implied
admission of guilt. Is Ramils offer to settle admissible in
evidence?
B. During PT, Bembol personally offered to settle the case
for P1M to the private prosecutor, who immediately put the
offer on record in the presence of the trial judge. Is
Bembols offer a judicial admission of his guilt?

Bar Question (2009)


16

Arrested in a buy-bust operation, Edmond was brought to the


police station where he was informed of his constitutional rights.
During the investigation, Edmond refused to give any statement.
However, the arresting officer asked Edmond to acknowledge in writing
that six (6) sachets of shabu were confiscated from him. Edmond
consented and also signed a receipt for the amount of P3,000.00
allegedly representing the purchase price of the shabu. At the trial, the
arresting officer testified and identified the documents executed and
signed by Edmond. Edmonds lawyer did not object to the testimony.
After the presentation of the testimonial evidence, the prosecutor made
a formal offer of evidence which included the documents signed by
Edmond.
Edmonds lawyer objected to the admissibility of the documents
for being the fruit of the poisonous tree. Resolve the objection with
reasons.

Bar Question (2009)


17

Blinded by extreme jealousy, Alberto shot his wife, Betty in the


presence of his sister, Carla. Carla brought Betty to the hospital.
Outside the operating room, Carla told Domingo, a male nurse, that it
was Alberto who shot Betty. Betty died while undergoing emergency
surgery. At the trial of the parricide charges filed against Alberto, the
prosecutor sought to present Domingo as witness, to testify on what
Carla told him.

The defense counsel objected on the ground that

Domingos testimony is inadmissible for being hearsay. Rule on the


objection with reasons.

RULES ON ELECTRONIC
EVIDENCE
18
What are electronic documents?

MCC Industrial Corp. v. Ssangyong Corp., 17 October 2007 (Nachura, J.) = it does not include fax
transmission unless computer-generated and telexes.
RA 8792 does not make the internet a medium for publishing laws, rules and regulations
( Garcillano vs. House of Rep. Comm on Public Info, 575SCRA170, 2008)

Admissibility/ Applicability

Same as under the Rules of Court (Sec. 2, Rule 1 of REE)


Authentication under REE
Requisites of authentication, to present:
Evidence that it had been digitally signed by the person purported to have signed the same;
Evidence that other appropriate security procedures for authentication were applied to the
documents
Other evidence showing integrity and reliability

RULES ON ELECTRONIC
EVIDENCE
19
P, a court employee sent text messages to A demanding one million

pesos in exchange for the release of L, As relative, from the National


Penitentiary. P admitted sending the text messages to A. The
Investigating Officer, in finding P guilty of inefficiency and gross
misconduct, considered the text messages sent by P to A.

Text messages have been classified as ephemeral electronic


communication under the REE and shall be proven by t he testimony of a
person who was a party to the same or has personal knowledge thereof. Any
question as to the admissibility of such messages is now moot and academic,
as the respondent himself, as well as his counsel, already admitted that he
was the sender of the

RULES ON ELECTRONIC
EVIDENCE
20
Q:

P, a court employee sent text messages to A demanding one


million pesos in exchange for the release of L, As relative, from the
National Penitentiary. P admitted sending the text messages to A. The
Investigating Officer, in finding P guilty of inefficiency and gross
misconduct, considered the text messages sent by P to A.
A:

Text messages have been classified as ephemeral electronic


communication under the REE and shall be proven by t he testimony of a
person who was a party to the same or has personal knowledge thereof.

RULES ON DNA
EVIDENCE
21
Post-Conviction DNA Testing may be available without need of

prior court order, to the prosecution of any person convicted by final


and executory judgment provided that:
1.
2.
3.

A biological sample exists;


Such sample is relevant to the case; and
The testing would probably result in the reversal or modification of the
judgment of conviction.

DNA Testing Result

If the value of probability of paternity is less than 99.9% the results of the
DNA testing shall be considered as corroborative evidence.
If equivalent to 99.9% or higher, there shall be a disputable presumption
of paternity.

RULES ON SMALL
CLAIMS
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No evidence shall be allowed during the hearing which was

not attached to or submitted together with the Claim,


UNLESS good cause is shown for the admission of
additional evidence.

BEST EVIDENCE RULE


23

When does it apply ?


When the contents of the document is the subject of inquiry
Exceptions:
1.
2.
3.
4.

Loss, destruction or unavailability


Original is in the custody or control of adverse party
Original consists of numerous accounts
Original is a public record

Introduction of secondary evidence,


1.

Requisites:
1.1. Proof of execution and existence
1.2. Cause of unavailability
1.3. Absence of bad faith

2.

Order of presentation
2.1 Copy of original
2.2. Recital of contents of document in some authentic document
2.3. Testimony of witness

PAROL EVIDENCE
RULE
24
Statement of the rule and rationale
When does it apply?

applies to contracts only (prior and contemporaneous agreement


which are deemed to have been merged in the writing
conformably to the integration of the agreement rule)

applies only to contracting parties or their privies to the contract


whose interest are adverse and not to strangers.
Exceptions (Provided it is put in issue in the pleadings):
1.
Intrinsic ambiguity, mistake or imperfection
2.
Failure of express true intent of the parties
3.
Validity of written agreement
4.
Terms agreed after the execution of the written agreement

HEARSAY EVIDENCE RULE


25

Statement of the rule and rationale


Exceptions and their requisites:
1.
Dying declaration (Sec. 36)
2.
Entries in the course of business (Sec. 43)
3.
Testimony or deposition at a former proceeding (Sec.47)
4.
Acts or declaration about pedigree (Sec. 39)
5.
Declaration against interest (Sec. 38)
6.
Family reputation or tradition regarding pedigree (Sec. 40)
7.
Common reputation (sec. 41)
8.
Parts of res gestae (Sec. 42)
9.
Entries in official records (Sec. 44)
10.
Commercial list and the like (Sec. 45)
11.
Learned treatises (Sec. 46)
12.
Opinion (Secs. 49 & 50)
13.
Rule on DNA Evidence
** items number 1 to 5 requires death / unavailability of declarant.

EXCEPTION TO HEARSAY RULE


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BUSINESS ENTRIES

Entries made at or near the time of the transactions to which


they refer, by a person deceased or unable to testify, who was
in the position to know the facts stated therein.
The entrant must have made entries in his professional
capacity or in the performance of duty and in the ordinary or
regular course of business or duty.
Entrant should have personal knowledge of the information he
is entering.
Not limited to business in the ordinary sense of the word
(jueteng bookie is a business record)

EXCEPTION TO27HEARSAY RULE


DYING DECLARATION

Declarant should die


Declarant conscious of impending death
Declarant relates to cause and circumstances surrounding
declarants death.
Declarant must otherwise be competent.

A statement which is not admissible as a dying declaration may


be admitted as part of the res gestae

EXCEPTION TO HEARSAY RULE


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FORMER TESTIMONY OR DEPOSITION

Testimony or deposition of a witness deceased or unable to


testify, given in a former case or proceeding, judicial or
administrative involving the same parties and subject
matter, may be given in evidence against the adverse party
who had the opportunity to cross examine the witness.

EXCEPTION TO HEARSAY RULE


29

ACT OF DECLARATION ABOUT PEDIGREE

The declaration must be about the pedigree of a relative, that is


a person related to the declarant by birth or marriage
The declarants relation by birth or marriage to the relative
must be preliminarily proved by independent evidence other
than the declaration.

EXCEPTION TO HEARSAY RULE


30

DECLARATION AGAINST INTEREST

As distinguished from party admission which is made by a


party, a declaration against interest is made by a non-party.
Against interest means against the declarants pecuniary,
moral and penal interest.

EXCEPTION TO HEARSAY RULE


31

RES GESTAE things have been done

Two exceptions

Excited utterances
Verbal acts
Reason for exception- truth of the verbal act is irrelevant, what
is impt. is that the statement gives legal significance to the
equivocal act, even if the one uttering the statement did not
mean it to be true.

EXCEPTION TO HEARSAY RULE


32

FAMILY REPUTATION OR TRADITION

REGARDING PEDIGREE

The witness testifying thereto must be a member, by


consanguinity or affinity of the same family as the subject;
Such reputation or tradition must have existed in that family
ante litem motam.

EXCEPTION TO HEARSAY RULE


33

COMMON REPUTATION

Existing previous to the controversy, respecting facts of public


or general interest more than 30 y/o or respecting marriage or
moral character, may be given in evidence. Monuments and
inscriptions in public places may be received as evidence of
common reputation.

EXCEPTION TO HEARSAY RULE


34

OFFICIAL RECORDS
Entries were made by a public officer in the performance of his
duties or by a person in the performance of a duty specially
enjoined by law.
Entrant had personal knowledge of the facts stated by him or
such facts were acquired by him from reports made by persons
under a legal duty to submit the same.
Such entries were duly entered in a regular manner in the
official records.

EXCEPTION TO HEARSAY RULE


35

LEARNED TREATISES

A published treatise, periodical or pamphlet on a subject of


history, law, science, or art is admissible as tending to prove
the matter stated therein if the court takes judicial notice or a
witness expert in the subject testifies that the writer of the
statement in the treatise, periodical or pamphlet is recognized
in his profession or calling as expert in the subject.

EXCEPTION TO HEARSAY RULE


36

COMMERCIAL LIST

A statement of matters of interest to person engaged in


occupation;
Such statement is contained in a list, register, periodical or
other published communication
Said compilation is published for the use of persons engaged in
that occupation
It is generally used and relied upon by persons in the same
occupation

OPINION RULE
37
Expert witness

Expert opinions are not ordinarily conclusive; When faced with conflicting expert
opinions, courts give more weight and credence to that which is more complete,
thorough and scientific (Bacalso vs Padigos 552 SCRA 185, 2008)

Ordinary witness, as to :

Handwriting
Identity
Sanity

Witness may also testify on his impressions of the motion, behavior, condition or
appearance

BAR QUESTION (2005)


38

Dencio barged into the house of Marcela, tied her to a chair and robbed
her of assorted pieces of jewelry and money. Dencio then brought Candida,
Marcelas maid, to a bedroom where he raped her. Marcela could hear Candida
crying and leading Huwag, maawa ka sa akin! After raping Candida, Dencio
fled from the house with the loot. Candida untied Marcela and rushed to the
police station about a kilometer away and told the police officer Roberto Maawa
that Dencio had barged into the house of Marcela, tied the latter to a chair and
robbed her of jewelry and money. Candida also related to the police that
despite her please, Dencio raped her. The policemen noticed that Candida was
hysterical and on the verge of collapse. Dencio was charged with robbery with
rape. During the trial, Candida can no longer be located.
If the police officer will testify that he noticed Candida to be hysterical
and on the verge of collapse, would such testimony be considered as opinion,
hence, inadmissible in evidence? Explain.

39
PRESENTATION
OF EVIDENCE

GENERAL RULE: Document or object evidence to be considered must


be formally offered. The purpose must be specified.
Exception: When the evidence was previously identified by the witness
and is incorporated in the records.
THREEFOLD PURPOSE OF OFFER OF EVIDENCE:
1.
To notify the party of possible objection, and for the offeror to make
necessary correction at the trial level to meet the objection.
2.
To allow the trial judge to rule properly
3.
To lay basis for appeal so that the appellate court can decided
intelligently.

BAR QUESTION (1991)


40
Two hours after Lt. Yap of the 2nd Air Division, PAF, at the Mactan Air Base in
Lapulapu City, was shot with a .45 caliber pistol, his Division commander, Brig Gen A,
visited him at the Cebu Doctors Hospital in Cebu City where he was immediately brought
before treatment of the gunshot wound. Lt. Yap told A that it was Jose who shot him.
Forthwith, A, who is a law graduate took the initiative of taking down in long hand the
statement of Lt. Yap. The latter narrated the events surrounding and categorically stated
that it was Jose who shot him. Lt. Yap signed the statement in the presence of A and the
attending nurse. Ten days later, Lt Yap died as a consequence of the gunshot wound.
An information for murder was filed against Jose.
At the trial, the above statement of Lt Yap marked as Exh X was presented and
identified by A who did not, however, testify that Lt. Yap read it, or that it was read to him
before Yap signed it. A, nevertheless, testified that it was Jose who shot him. The defense
objected to the testimony of A and to the admission of Exh X on the ground that they are
hearsay. The prosecution contended that both are exceptions to the hearsay rule as they
are part of res gestae.
Is the prosecution correct? If the statement cannot be admitted as part of the res
gestae, may it be considered as a dying declaration?

41
PRESENTATION
OF EVIDENCE
When to offer evidence

Testimonial evidence- at the time the witness is called to testify


Documentary and object after the presentation of partys testimonial
evidence and before he rests
Objections
Testimonial:
1st: When the offer is made
2nd: When an objectionable question is asked of the witness
Documentary and object evidence
When the document is offered in evidence

PRESENTATION OF EVIDENCE
42

AUTHENTICATION & PROOF OF DOCS


1.
Classes of documents
a.
b.

2.
3.

Public Document (S19, R132;Pp. v. Cayabyab BC is a pub.


record)
Private Document

Proof of private document


Ancient Document Rule : private document which need not
be authenticated

BAR QUESTION (1990)


43

In the trial of a case on July 5, 1990, plaintiff


offered in evidence a receipt dated July 7, 1959
issued by defendant company which was found in a
cabinet for receipts of payment. It is without any
blemish or alteration. As no witness testified on the
execution and authenticity of the document,
defendant moved for the exclusion of this receipt
notwithstanding that it is a private writing. Should
the said motion be granted?

WEIGHT AND SUFFICIENCY OF


EVIDENCE
44

Preponderance of evidence
Proof beyond reasonable doubt
Substantial evidence
-

- END-