General Provisions / Basic Principles

TOPIC 1 - Rule 128 - GENERAL PROVISION

Section 1. Evidence defined. — Evidence is the means, sanctioned by these rules, of

ascertaining in a judicial proceeding the truth respecting a matter of fact. (1)

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

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

issue and is not excluded by the law of these rules. (3a)

Section 4. Relevancy; collateral matters. — Evidence must have such a relation to the
fact in issue as to induce belief in its existence or non-existence. Evidence on collateral
matters shall not be allowed, except when it tends to any reasonable degree to
establish the probability or improbability of the fact in issue. (4a)

1. Dual Concept of Evidence

 As the very materials presented in court consisting of objects, documents or

oral narration of witnesses
 As a system, process or methodology of proving a fact. Hence it would refer to
providing answers to such questions as who may and who may not be
witnesses , what may be allowed as proof, how they are to be presented; what
requirements are to be observed, what weight and importance is to be given a
certain evidence in relation to other pieces of evidence.
 Section1 stresses evidence as a system or methodology. But the rules often use
one or the other concept. Thus which concept is followed depends upon the
context in which the word “evidence” is used.
2. Definition explained

1. “means sanctioned by these rules”. The procedure for determining the truth is as
provided for under Rules 128 to Rule 133, including the amendments thereto and
their interpretation given by the Courts.
2. “of ascertaining in a judicial proceeding”- the rules or procedure is applicable only
to controversies tried by the regular courts of law; the procedure or rules of
 evidence does not apply in quasi-judicial or administrative tribunals or to courts
martial. The latter may adopt the rules in their discretion
3. ’ The truth”:
1. The ultimate objective of the rules of evidence is to render justice by arriving at
the truth of a matter in dispute i.e by knowing the facts and the meaning of these
facts.
2. Factual or moral truth- the truth which the court seeks to know.
3. Judicial truth- the truth as found by the courts based on the evidence presented
to it.
4. Ideal or perfect justice- when the judicial truth is likewise the factual truth.
Where the two differ, still there is justice so long as the court observed both substantive
and procedural due process

4. “ respecting a matter of fact”… the fact to be established or the point in controversy

must be capable of being proven or ascertained by the rules of evidence. The rules do
not apply and cannot be used to answer questions or controversies involving religion or
faith; dogma, philosophy, literature, fantasy or fiction or those which are purely
speculative.

III. Related Concepts

1. Evidence from Proof-Strictly evidence is the medium of proof whereas proof is the
result of evidence. Thus the materials consisting of the weapon used, the confession of
the accused, the testimony of the complainant and witnesses, the result of the paraffin
test, will constitute the evidence of guilt. Their combined effect will be Proof of guilt
Beyond Reasonable Doubt.

The two terms are often used interchangeably.

2. “Factum Probandum'' and “Factum Probans”. All litigations, whether civil or criminal,
involve the relationship between these two concepts.

1. Factum Probandum refers to the ultimate fact to be proven, or the proposition to

be established. That, which a party wants to prove to the court. E.g.: guilt or
innocence; existence of a breach of contract; existence of an obligation; the fact
of payment; the injury or damage incurred.
2. Factum Probans refers to the evidentiary facts by which the factum probandum
will be proved.
Examples: the written contract; the promissory note to prove the existence of an unpaid
debt.

IV. Classification of evidence presented in Court

A. Direct and Circumstantial

1. direct- that which proves a fact in issue or dispute without the aid of any inference or
presumption. It is evidence to the precise point.

Example: The eye witness account; the scar to show the wound

2. circumstantial- proof of facts or fact from which taken singly or collectively, the
existence of the particular fact in issue maybe inferred or presumed as a necessary or
probable consequence

3. Important considerations on circumstantial evidence

a) This applies only in criminal cases and is governed under Rule 133(4) which for
purposes of supporting a finding of guilt, requires:

i). that there be more than one circumstance

ii).that the facts from which the inference are derived are proven

iii). the combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt

b) Per the Supreme Court: it is essential that the circumstantial evidence presented
must constitute an unbroken chain which leads one to a fair and reasonable conclusion
pointing to the accused, to the exclusion of all others, as the guilty person.

c). Guidelines in the appreciation of the probative value of circumstantial evidence

i) It should be acted upon with caution

ii). All essential facts must be consistent with the hypothesis of guilt

iii). The facts must exclude every other theory but that of guilt
iv). The facts must establishes such a certainty of guilt as to convince the judgment
beyond reasonable doubt that the accused is the one who committed the offense

B. Positive vs. Negative Evidence

a). Positive evidence that affirms the occurrence of an event or existence of a fact, as
when a witness declares that there was no fight which took place

b). negative when the evidence denies the occurrence of an event or existence of a fact,
as when the accused presents witnesses who testify that the accused was at their party
when the crime was committed. Denials and alibi are negative evidence.

c). The general rule is that positive evidence prevails over negative evidence, or that a
positive assertion is given more weight over a plain denial.

C. Primary (Best) vs. Secondary Evidence

a). primary- that which the law regards as affording the greatest certainty of the fact in
question. E.g.: the original of a contract is the best evidence as to its contents; the
marriage contract as to the fact of marriage; a receipt as to the fact of payment; the birth
certificate as to filiation.

b). secondary- that which is necessarily inferior and shows on its face that better
evidence exists. E.g.: Xerox copies of documents; narration of witnesses as to a written
contract.

D. Conclusive vs. Prima facie

a).conclusive – may either be (i) that which the law does not allow to be contradicted as
in judicial admissions or (b) that the effect of which overwhelms any evidence to the
contrary as the DNA profile of a person as the natural father over a denial
b). prima facie- that which, standing alone and uncontradicted, is sufficient to maintain
the proposition affirmed. In the eyes of the law it is sufficient to establish a fact until it
has been disproved, rebutted or contradicted or overcome by contrary proof.

E. Cumulative vs. corroborative

a). cumulative- additional evidence of the same kind bearing on the same point. E.g.:
testimonies of several eyewitnesses to the same incident

b). corroborative-additional evidence of a different kind or character but tending to prove

the same point. It is evidence which confirms or supports. Thus:

(i) the medico legal certificate describing the injuries to have been caused by a sharp
pointed instrument corroborates the statement that the accused used a knife to stab the
victim

(ii) the positive results of a paraffin test corroborates the allegation that the person fired
a gun and

(iii) the ballistics examination on the gun of the suspect corroborates the statement that
he fired his gun at the victim

F. As to form:

a). Documentary- evidence consists of writings

b). object- those consisting of evidence which are addressed to the senses of the court
c). Testimonial- evidence consisting the narration made under oath by a witness

G. Relevant, material and competent ( refer to section 3 and 4)

SCOPE OF EVIDENCE

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

The general rule is that the rules on evidence shall be applied in the lower courts and
appellate courts, in civil and in criminal cases. The reason is that the search for truth is
subject to the same rules.

However, there are exception to this rule:

A. As to whether the rules on the presentation of evidence shall be applied strictly

1. Cases covered by the Regular Procedure- the rules apply strictly

2. Cases covered by the Rules on Summary Procedure- the rules are relaxed and the
procedure is abbreviated

B. Between civil and criminal proceedings

1. As to the quantum of evidence for the plaintiff to win: proof of guilt of the accused
beyond reasonable doubt vs. preponderance of evidence

2. As to the presence of the parties: in civil cases the attendance of the parties is not
required and they attend on their own volition whereas in criminal cases, the presence
of the accused is required unless he waived the same

3 As to the effect of the absence of a party: in civil cases, except during the pre-trial, the
proceedings may proceed even in the absence of the parties whereas in criminal cases,
trial cannot proceed if the accused was not notified

4. As to the rule on confessions: this applies only in criminal cases

5. As to the effect of an offer of compromise by the defendant: in criminal cases the

offer is an implied admission of guilt whereas it does not simply any liability in civil cases

ADMISSIBILITY OF EVIDENCE

 Evidence is admissible when it is relevant to the issue and is not excluded by the
law or these rules. (sec. 3)

A. Admissibility- the character or quality which any material must necessarily possess
for it to be accepted and allowed to be presented or introduced as evidence in court. It
answers the question: should the court allow the material to be used as evidence by the
party?

B. Weight- the value given or significance or impact, or importance given to the material
after it has been admitted; its tendency to convince or persuade. Hence a particular
evidence may be admissible but it has no weight. Conversely, an evidence may be of
great weight or importance but it is not admissible.
Conditions for Admissibility

A. RELEVANCY

The material presented as evidence must affect the issue or question. It must have a
bearing on the outcome of the case. It requires both:

1. rational or logical relevancy in that it has a connection to the issue and therefore
it has a tendency to establish the fact which it is offered to prove. The evidence
must therefore have probative value

2. legal relevancy in that the evidence is offered to prove a matter which has been
properly put in issue as determined by the pleadings in civil cases, or as fixed by
the pre-trial order, or as determined by substantive law. If so the matter has
materiality.

B. COMPETENCY ( All facts having rational probative value are admissible unless
some specific law or rule forbids). In short the evidence is not excluded by law or rules.

Principles which Exclude Relevant or Material Evidence:

The Exclusionary Rule Principle - the principle which mandates that evidence obtained
from an illegal arrest, unreasonable search or coercive investigation, or in violation of a
particular law, must be excluded from the trial and will not be admitted as evidence.

1. The principle judges the admissibility of evidence based on HOW the evidence is
obtained or acquired and not WHAT the evidence proves.

2. The principle is to be applied only if it is so expressly provided for by the constitution

or by a particular law. Even if the manner of obtaining the evidence is in violation of a
certain law but the law does not declare that the evidence is inadmissible, then such
evidence will be admissible.

The Doctrine of the Fruit of the Poisonous Tree

1. Evidence will be excluded if it was gained through evidence uncovered in an

illegal arrest, unreasonable search or coercive interrogation, or violation of a
particular exclusionary law.

2. It is an offshoot of the Exclusionary Rule which applies to primary evidence. The

doctrine applies only to secondary or derivative evidence. There must first be
primary evidence which is determined to have been illegally obtained then
secondary evidence is obtained because of the primary evidence. Since the
primary evidence is inadmissible, any secondary evidence discovered or
obtained because of it may not also be used.

1. The poisonous tree is the evidence seized in an illegal arrest, search or

interrogation. The fruit of this poisonous tree is evidence discovered because of
knowledge gained from the first illegal search, arrest, or interrogation or violation
of a law.

2. It is based on the principle that evidence illegally obtained by the state should not
be used to gain other evidence because the original illegally obtained evidence
taints all those subsequently obtained.

Illustrations:

A suspect was forced to make a confession where he revealed he took shabu from the
room of X. Based on this knowledge the police went to the house of X and with the
consent of X, searched his room and found the shabu. The confession is inadmissible
because of the exclusionary rule. It is the poisoned tree. The shabu is inadmissible
because knowledge of its existence was based on the confession. It is the fruit.

Evidence Excluded by the Constitution

Under Article III of the Constitution the following evidence are inadmissible

1. evidence obtained in violation of the right against unreasonable search and

seizure
2. evidence obtained in violation of the privacy of communication and
correspondence, except upon lawful order of the court or when public safety or
order requires otherwise
3. evidence consisting of extra-judicial confessions which are uncounselled, or
when the confessant was not properly informed of his constitutional rights, or
when the confession was coerced
4. evidence obtained in violation of the right against self-incrimination
*Read R.A. 4200 ( The Anti Wire Tapping Law)

Sec. 4 of Rule 128 is about relevancy and collateral matters

 Evidence must have such relation to the fact in issue as to induce belief in its
existence or non-existence. Evidence on collateral matters shall not be allowed,
except when it tends to any reasonable degree to establish the probability or
improbability of the facts in issue.
Judicial Notice

TOPIC 1 - RULE 129 - WHAT NEED NOT BE PROVED

Each party has to prove its own point. Allegations should not prove themselves in
pleadings. By making the most claims, or that the accusation of causes of behavior or
defenses is designed in the best and most compelling language, no group wins. Both
charges remain but as allegations or suggestions. Therefore, any party to a case who
wishes to have a favorable decision made in his favor must submit evidence in support
of his argument, cause of action or defense, whether in the form of evidence, records or
witness testimony.

Similarly, the court restricts itself to only the evidence duly provided and accepted
during the trial and does not take matters or facts beyond the court into consideration.

A Party Can not Assert (Not Alegata Not Proba) What He Did Not Allege. However, a
group is not allowed to present evidence on concerns that it has never claimed.

Therefore, the claimant will not be allowed to prove a cause of action that is not
mentioned in his complaint, and the defendant will not be allowed to prove a defense
that he has never posed in his response. The prosecutor is not allowed to prove a crime
not defined in the information in criminal trials or to prove any aggravating
circumstances not claimed in the information.

But a party may be relieved from presenting evidence on certain matters, such as on
the following:

1. Matters or facts subject of judicial notice

2. Matters or facts subject of judicial admission
3. Matters or facts which are legally presumed
4. Matters or facts stipulated upon
5. Matters or facts which are exclusively within the knowledge of the opposing party
6. Matters or facts which are irrelevant.
7. Matters or facts in the nature of negative allegations subject to certain
exceptions
The concept of Judicial Notice is that it refers to the act of the court in taking cognizance
of matters as true or as existing without need of the introduction of evidence, or the
authority of the court to accept certain matters as facts even if no evidence of their
existence has been presented. The action is often expressed thus ``''The court
takes judicial notice of…” and the purpose is to save time, labor and expenses. It is
based on expediency and convenience.

The following are examples:

  The need to protect Filipino OFWs as a primary reason behind the Migrant
Workers Act or the increase in the incidence of drug related crimes as reason for
the increase in the penalty for violation of the drug law
 That the passage of the Anti Terrorism Law and the Anti-Money Laundering Law
were influenced by the demands of the international community
 Taking notice of the increase in the age of criminal liability
 That documents presented in the Register of Deeds are recorded according to
the date and time of their presentation
 The policy of the law as regards bail in heinous crimes or of the policy of the
state against the use of illegal means to obtain evidence
 Gun Ban during election period
Section 1. Matters the taking notice of which is mandatory.

If a fact falls under any of the matters enumerated, then the court may not compel a
party to present evidence thereon and necessarily, it may not decide against the party
for the latter’s failure to present evidence on the matter. The enumeration is exclusive.

 As to Foreign States: their existence and territorial extent; forms of government

( monarchical, presidential, parliamentary, royalty), symbols of nationality ( flag,
national costume, anthem).
 The Law of Nations: the body of principles, usages, customs and unwritten
precepts observed by, and which governs, the relations between and among
states.
 The Admiralty and Maritime Jurisdiction of the World and their Seals
 The Philippine as a state Its constitution and political history: the political set up
of the government
 The official acts of the legislature, executive and judicial departments
 The Laws of Nature
 Measures of Time
 Geographical Division of the World
Section 2. Matters the taking of which is discretionary.

This section authorizes a court to take judicial notice of certain matters in its discretion.
The matters fall into three groups:

1. Those which are of public knowledge

 The existence and location of hospitals, public buildings, plazas and markets,
schools and universities, main thoroughfares, parks, rivers and lakes
2. Those which are capable of unquestionable demonstration and

 These are matters which, even if not notorious, can be immediately shown to
exist or be true so as to justify dispensing with actual proof.
Examples: That poison kills or results to serious injury

3. Matters ought to be known to judges because of their judicial functions.

  These are matters which pertain to the office of the Judge or known to them
based on their experience as judges
Examples: The behavior of people to being witnesses such as their reluctance to be
involved in cases thus requiring the issuance of subpoena to them; the varied reaction
of people to similar events

Section 3. Judicial Notice When Hearing Is Necessary

When and How Notice is taken.

1. By the Trial Court : either Motu Proprio or upon motion by a party .Generally this
is during the trial or presentation of evidence, but it may be made thereafter but
before judgment and only upon a matter which is decisive of the issue.
2. By the appellate court: before Judgment
Need for Hearing

1. If motu proprio, the Court must announce its intention and give the parties the
opportunity to give their view on whether or not the matter is a proper subject
of judicial notice.
2. If on motion of a party, the opposing party must likewise be given the opportunity
to comment thereon.
Sec. 4 - Judicial Admissions

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

CONCEPT- The act or declaration of a party in voluntary acknowledging or accepting

the truth or existence of a certain fact. The admission may be Judicial or Extrajudicial
and in either case, they may be oral or written.

1. Judicial- those made in the course of the proceedings of the case in which they
are to be used as evidence. This is governed by section 4.
2. Extra-Judicial- those made elsewhere but not in the course of the proceedings
where they are to be used as evidence.
LESSON 3
Rules of Admissibility
RULE 130 - RULES OF ADMISSIBILITY (Sec. 1-9)

TOPIC 1 - OBJECT AS EVIDENCE (Sec. 1)

Objects as evidence are those addressed to the senses of the court.

When an object is relevant to the fact in issue, it may be exhibited to, examined or
viewed by the court.

The definition covers any material that may be seen, heard, smelled, felt, or touched.
They are the “sensual evidence” and are grouped into:

1. Those exhibited to the Court or observed by it during the trial

2. Those which consist of the results of inspections of things or places conducted
by the court ( ocular inspections) outside the court.
3. Those which consist of the results of experiments, tests or demonstrations, which
may be scientific tests/experiments, or practical tests/demonstrations provided
the conduct of experiments/tests is subject to the discretion of the court.

REQUIREMENTS FOR ADMISSIBILITY

Inherent Requirements:

 Proof of 1. Relevancy and 2. Competency

Procedural Requirement: Proof of Authentication

1. The process of proving that the object being presented in court is the very object
involved in the event.

2. The purpose is two-fold:

1. to ensure/preserve the Identity of the Object which is to prevent the introduction

of a different object and
2. to ensure/preserve the Integrity of the Object which is to ensure that there are no
significant changes or alterations in the condition of the object or that the object
has not been contaminated.
LIMITATIONS to the admission of Objects as evidence in addition to the inherent
limitations of relevancy and competency.

A. The admission must not cause undue prejudice to the court, such as those intended

B. The admission is subject to the demands of decency and propriety, unless the
admission is extremely necessary.

 Exhibition of the private parts in sex cases

 Presentation of the corpse or body parts
 Re-enactment of violent or offensive acts
C. Exclusion of objects which are offensive to man’s sensibilities or repulsive objects

 Waste matters, human excreta

 Carcasses of dead a***s
 Killing of an a*** to prove a substance is poison
D. The procurement, presentation or inspection must not cause inconvenience or
unnecessary expenses out of proportion to the evidentiary value of the object evidence

E. The admission must not violate the right against self-incrimination

F. In cases of ocular inspections: (i) the condition of the thing or place must not have
been altered (ii) there be prior notice of the date, time and place given to the parties
because the inspection is still part of the trial.

NECESSITY OF PRESENTATION OF OBJECTS IN COURT

 The best proof that an object exists is to present it to the court

RESULTS OF SCIENTIFIC TESTS AS OBJECT EVIDENCE
Forensics: application of scientific principles to answer questions of interest in the legal
system. This is applied most often in the examination of Trace Evidence to solve crimes
based on the Principle of Contact

1. Trace Evidence- evidence found at a crime scene in small but measurable

amounts such as hairs, fibers, soils, botanical materials, explosive residue
2. Principle of Contact: every person who is physically involved in a crime leaves
some minute trace of his/her presence in the crime scene or in the victim and
often takes something away from the crime scene and/or victim
Scientific Tests Judicially Accepted:

 Paraffin Tests although they are not conclusive that a person did or did not fire a
gun
 Lie Detection Test: The result is not admissible as evidence in the Philippines
 Firearms Identification Evidence or Ballistic Test to determine whether a bullet
was fired from a particular gun
 Questioned Document Test and Handwriting Analysis
 Drug Tests on a Person
 Toxicology or Test of Poison
 Psychiatric examination
 Voice Identification Test
 Fingerprinting
 Identification through Dentures
 Genetic Science such as DNA (Deoxyribonucleic acid)or Blood Test
 DNA ( Deoxyribonucleic acid) is a molecule found inside all living cells which
carries the genetic information that is responsible for all cellular processes.
Except for identical twins, each person’s DNA profile is distinct and unique.

Demonstrative Evidence

 Tangible evidence i.e physical objects, which illustrate a matter of importance to

the case but are not the very objects involved in the case. They merely illustrate
or represent or emphasize, visualize or make more vivid what a party desires to
emphasize. ( visual aids)

Examples:

 movies, sound recordings, forensic animation, maps, drawings, sketches,

graphs, simulations, models or modules of the human body.
Importance is that their use is very helpful as they provide a stronger impact and lasting
effect on the court.

TOPIC 2 - DOCUMENTARY EVIDENCE (Sec. 2)

Sec. 2. Documents as evidence consist of writing or any material containing letters,
words, numbers, figures or other modes of written expressions offered as proof of their
contents.

I. Kinds of Documentary Evidence

1. Writings or Paper Based Documents

2. “Or Any other material” refers to any other solid surface but not paper such as
blackboard, walls, shirts, tables, floor.
 As in a contract painted on the wall
 They include pictures, x-rays, videos or movies.
Note: Both kinds may be handwritten, typewritten, printed, sketched or drawings or
other modes of recording any form of communication or representation.

Electronic Evidence pursuant to the Rules of Electronic Evidence (A.M. NO. 01-7-01-
SC) effective August 01, 2001. which provides :

1. Rule 3 section 1: “Electronic evidence as functional equivalent of paper-based

documents- Whenever a rule of evidence refers to the term writing, document,
records, instrument, memorandum or any other form of writing, such term shall
be deemed to include an electronic document”.
2. “Electronic document” refers to information or to the presentation of information,
data, figures or symbols or other modes of written expression, described or
however represented, by which a sight is established or an obligation
extinguished, or by which a fact maybe proved and affirmed, which is received,
recorded, transmitted, stored, processed, retrieved or produced electronically.
3. It includes digitally signed documents and any printout or output, readable by
sight or other means which accurately reflects the electric data message or
electronic document. For purposes of these rules the term electronic document
may be used interchangeably with ”electronic data message”
4. Rule 3 section 2: An electronic document is admissible in evidence if it complies
with the Rules of Admissibility prescribed by the Rules of Court and related laws
and is authenticated in the manner prescribed by these rules.
There are three requirements for admissibility: relevancy, competency and proper
authentication.

Text messages are electronic evidence being ephemeral electric communications. They
may be proven by the testimony of a person who was a party to the same or who has
personal knowledge thereof such as the recipient of the messages ( Nunez vs. Cruz
Apao 455 SCRA 288)

Rules governing the admissibility of documents include the Best Evidence Rule and the
Parol Evidence Rule.

TOPIC 3 - BEST EVIDENCE RULE (Sec. 3)

The General Rule:

‘‘ If the subject of inquiry is the contents of a document there can be no evidence of the
contents other than the original of the document.”

Section 3 states the general rule when the original of a document is to be presented and
the four exceptions to the rule. Hence the best evidence rule is often referred to loosely
as the “the Original Document rule”. It is thus a rule of preference in that it excludes
secondary evidence once the original is available.

When the Original Is to Be Presented:

 “If the subject of inquiry is the contents of the document”. This means the cause
of action or defense is based on what is contained in the document i.e. the terms
and conditions, the entries, data or information written on the document.
 This means the plaintiff is either enforcing a right based on, or created, by a
document or a party is seeking non-liability by virtue of the contents of a
document.
Examples:

 Enforcement of a contract, collection of money based on a promissory note,

damages for failure to comply with the terms of a written agreement
 Defense of release, payment, novation, condonation, as embodied in a written
document.
 In criminal cases: where the act complained of is made upon or contained or
evidenced by a document such as in falsification, perjury, bigamy, malversation,
estafa, issuance of a watered check
Justifications for the rule.

To ensure accuracy and to avoid the risk of mistransmission of the contents of a writing
arising from

1. the need of precision in presenting to the court the exact words of a writing
especially in operative or dispositive instruments such as deeds, will and
contracts, since a slight variation in words may mean a great difference in rights
2. substantial danger of inaccuracy in the human process of making a copy and
3. As respect to oral testimony purporting to give from memory the terms of a
writing, there is a special risk of error.

To prevent the possibility of the commission of fraud or perjury, or substitution

Illustrations

1. The Marriage Contract as to the date, place, the parties and solemnizing officer
2. The Insurance Contract/Policy as to the coverage of the insurance
3. The deed of sale as to the consideration, terms and conditions of the sale
4. The lease contract as to the terms thereof
5. The sworn statement as to perjury
6. In case of libel based on a published article, the newspaper containing the article
7. The certified copy of the original judgment of conviction to prove the prior
conviction to constitute recidivism or habitual delinquency
The Gregorio Doctrine

 In criminal cases of falsification, it is indispensable that the judge have before

him the document alleged to have been simulated, counterfeited or falsified
unless:
 The original is in the possession of the adverse party/accused who refused to
deliver or present the same despite demand
 The original is outside of the Philippines and which, for official reasons, cannot
be brought to the Philippines. Example: The originals are US Treasury Warrants
which are with the US Treasury Department in which case photostat copies are
admitted
The Rule may be waived expressly or by failure to object

The Exception: WHEN SECONDARY EVIDENCE MAY BE PRESENTED

Secondary Evidence refers to any evidence to prove the contents of a document other
than the original of the said writing. It may be oral or written.

First Exception: “When the original has been lost, destroyed, or cannot be produced in
court without bad faith on the part of the offeror.

1. “ Lost/destroyed”: the original is no longer in existence

2. “cannot be produced in court”- the original exist but either (i) it is of a nature that
it is physically impossible to bring it in court as in the cases of a painting on a wall
or tombstone or it consists of the data stored in a computer (ii) would entail great
inconvenience, expense or loss of time if brought to court, as in the case of a
writing on a rock (iii) it is outside the Philippine territory
3. “without bad faith on the part of the offeror”- the loss or unavailability was not due
to the act or negligence of the party presenting secondary evidence, or if due to
the act or fault of a third person, then the offeror had no part therein.

Procedural requirement: Foundation or Order of Proof is

 Existence
 Execution
  loss
 contents.

Second Exception: When the original is in the adverse party’s custody and
control.

The Foundation consists of the following:

1. Proof of the Existence and Due Execution of the Original

2. Proof that the original is in the (a) actual physical possession/custody or (b) control
i.e. possession or custody by a third person for and on behalf of the adverse party, as
that of a lawyer, agent or the bank. Maybe by the testimony of who delivered the
document; registry return receipt by the Post Office or some other commercial
establishments engaged in the delivery of articles and the receipt thereof, or by one who
witnessed the original being in the possession of the adverse party.

3. Proof that reasonable notice was given to the adverse party to produce the original:
the notice must specify the document to be produced.

1. If the documents are self incriminatory, notice must still be sent as the adverse
party may waive the right
2. The notice may be a formal notice or an-on-the-spot oral demand in court if the
documents are in the actual physical possession of the adverse party.
4. Proof of failure or refusal to produce.

Effects of refusal or failure to produce:

1. The adverse party will not be permitted later to produce the original in order to
contradict the other party’s evidence

2.. The refusing party may be deemed to have admitted in advance the accuracy of the
other party’s evidence

3. The admission of secondary evidence and its evidentiary value is not affected by the
subsequent presentation of the original.

Example: In G&M Phil. Inc. vs. Cuambot it was held: “ the failure (of the employer) to
submit the original copies of the pay slips and resignation letter raises doubts s to the
veracity of its claim that they were signed by the employee. The failure of a party to
produce the original of a document which is in issue has been taken against such party,
and has been considered as a mere bargaining chip, a dilatory tactic so that such party
would be granted the opportunity to adduce controverting evidence
Third Exception: When the original consists of numerous accounts or other documents
which cannot be produced in court without great loss of time and the fact sought to be
established there from is only the general result of the whole.

This is based on practical convenience

Fourth Exception: When the original is a public record in the custody of a public official
or is recorded in a public office

The documents involved:

 a strictly public document such as the record of birth, the decision of a court and
 a private document which was made part of the public record, such as a
document of mortgagee involving a registered land and submitted of the Office of
the Register of Deeds

TOPIC 4 ORIGINAL DOCUMENT (Sec. 4-8)

Sec.4 Original Document

1. The original document is one the contents of which are the subject of the inquiry.
One the contents of which, is the subject of inquiry as determined by the issues
involved: Which document is it that the contents of which is in question?

Thus in case of libel and the issue is who is the author of the libel as published? Then
the original is the letter sent to the media. But if the question is whether the letter is
libelous, then the original is the letter.

If X Xeroxed a letter by Ana to Juan and X changed the contents by inserting libelous
matters against Juan, then the original would be the Xeroxed letter.

2. When the document is in two or more copies executed at or about the same time,
with identical contents, all such copies are equally regarded as originals.
Duplicate Originals. Two or more copies executed at or about the same time with
identical contents.

Examples: carbon originals, blue prints, tracing cloths. Copies mass produced from the
printing press or from the printer of computers.

3. When an entry is repeated in the regular course of business, one being copied
from another at or near the time of the transaction, all the entries are equally
regarded as originals.
Entries repeated in the regular course of business one copied from the other at or near
the time of the transaction to which they relate, all are considered as original.
Examples are entries in the Books of Account which are copied from one book/ledger
and transferred to another or entries in receipts for the sales for the day which at night
are recorded in a ledger and which in turn are recorded in the sales for the week and
then entered in the ledger for the sales of the month. Also, scores in the examination
booklets which are recorded in the teachers record which then are recorded in the
official grade sheet submitted to the dean’s office.

Secondary Evidence

Section 5. When original document is unavailable. — When the original document has
been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its
execution or existence and the cause of its unavailability without bad faith on his part,
may prove its contents by a copy, or by a recital of its contents in some authentic
document, or by the testimony of witnesses in the order stated. (4a)

Section 6. When original document is in adverse party's custody or control. — If the

document is in the custody or under the control of adverse party, he must have
reasonable notice to produce it. If after such notice and after satisfactory proof of its
existence, he fails to produce the document, secondary evidence may be presented as
in the case of its loss. (5a)

Section 7. Evidence admissible when original document is a public record. — When the
original of document is in the custody of public officer or is recorded in a public office, its
contents may be proved by a certified copy issued by the public officer in custody
thereof. (2a)

Section 8. Party who calls for document not bound to offer it. — A party who calls for the
production of a document and inspects the same is not obliged to offer it as evidence.
(6a)
LESSON 4
Parole Evidence
TOPIC 1 - PAROLE EVIDENCE RULE / INTERPRETATION OF DOCUMENTS (Sec. 9-
17)

Section 9. Evidence of Written Agreements. “When the terms of an agreement have

been reduced into writing, it is considered as containing all the terms and conditions
agreed upon and there can be between the parties and their successors in interest, no
evidence of such terms other than the contents of the written agreement.

Essence of the Rule

 It forbids or prohibits any attempt to vary, contradict, or modify the terms of a

written agreement by the use of testimonial/oral evidence.

Purposes:

 to give stability and permanence to written agreements otherwise they can be

changed anytime by mere testimony, then written agreements would serve no
useful purpose
 to remove the temptation and possibility of perjury which would be rampant if
oral/parol evidence were allowed as a party may resort to such testimony in order
to either escape compliance with his obligation, or to create fictitious terms
favorable to him.
Parol evidence Rule (PER)distinguished from the Best Evidence Rule(BER). Both refer
to a written document but they differ in the following aspects:

 As to what is prohibited: the BER prohibits the introduction of inferior evidence

when the best evidence is available whereas the PER prohibits the introduction
of oral testimony to vary the terms of a written agreement.
 As to scope: the BER applies to all kinds of written documents while the PER is
limited to contracts and wills
 As to the substance of the evidence: the BER goes to the form of the evidence
while the PER goes to the very substance of the evidence
 As to who may invoke: the BER may be invoked by any party to a case while the
PER may be invoked only by a party to the written agreement and his successor
in interest, or by one given right or imposed an obligation by a written agreement.
 As to the issue: BER is to the contents
A. That there is an intrinsic ambiguity
  Ambiguity refers to an uncertainty or doubt in the document or something in its
provisions is not clear, or of being susceptible to various interpretations or
meanings.
They are either (a) latent or intrinsic and (b) patent or extrinsic

Latent or Intrinsic- The instrument/document itself is clear and certain on its face but the
ambiguity arises from some extrinsic, collateral or outside factor, thus there is an
uncertainty as to how the terms are to be enforced.

Examples:

 the donee is described as “My uncle Tom” but the donor has several uncles
named Tom
 The thing sold is “my house and lot in Baguio City” but the vendor has three
houses and lots in Baguio City.
Patent or Extrinsic (Ambiguitas patens) – the uncertainty is very clear and apparent on
the face of the document and can easily be seen by simply reading the terms/contents
of the document.

Examples:

 A promissory note or memorandum of indebtedness which does not specify the

amount of the obligation
 sale of property without the property being described
B. There was a Mistake or Imperfection

1. Imperfection includes situations of inaccurate descriptions

2. Mistake- when a person did or omitted to do an act by reason of an erroneous belief

or interpretation of a law or assessment of a fact, or due to ignorance, forgetfulness,
unconsciousness, or misplaced confidence.

a). Must be of a fact and is mutual to both the parties

Examples:

 both were in error as to the property sold and described in the deed of sale i.e.
another property as the one involved and not that described in the document
 two persons were supposed to be witness but were named instead as parties
 the writing was incomplete when it mentioned only some but not all the terms
agreed upon.
C. The Failure of the Written Agreement to Express the True Intent and Agreement of
the Parties
1. The deed may be ambiguous or vague either through ignorance, lack of skill or
negligence of the party/person who drafted the deed, or through the use of imprecise
words.

2. Maybe cured through the remedy of reformation of instrument

Example:

 The deed turned out to be a sale when the intention was as a security or
 the deed was a sale and not an SPA
D. The Validity of the Agreement is Put In Issue

1. One or both parties assert the agreement or document is null and void or
unenforceable for lack of the essential elements of a valid contract.

E. In case of Subsequent Agreements- the terms and conditions being testified on were
agreed upon after the execution of the document

1. As in the case of novation of the document, in whole or in part

2. Parties are free to change or modify or abandon their written agreement in which
case it is the latter which should given force and effect