GENERAL CONCEPTS

Concept of Evidence

Evidence is the means, sanctioned by the Rules of Court, of ascertaining in a judicial proceeding the truth
respecting a matter of fact. (Sec. 1, Rule 128, ROC, as amended)

Principle of Uniformity

The Rules of Evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided
by law or the Rules of Court.

Applicability of the Rules on Evidence

The Rules of Evidence, being part of the Rules of Court, apply only to judicial proceedings (Sec.1, Rule 128,
ROC, as amended)

EVIDENCE IN CIVIL CASES EVIDENCE IN CRIMINAL CASES

The party having the burden of proof must prove The guilt of the accused must be proved beyond
his claim by a preponderance of evidence reasonable doubt
GR: An offer of compromise is not an implied GR: An offer of compromise by the accused may be
admission of any liability, and is inadmissible in received in evidence as an implied admission of guilt.
evidence against the offeror
XPNs:
Neither is evidence of conduct nor statements
made in compromise negotiations admissible. 1. Those involving quasi-offenses (criminal
negligence) and
XPN: Evidence otherwise discoverable or offered 2. Criminal cases allowed by law to be
for another purpose, such as proving bias or compromised. (Sec. 28, Rule 130, ROC, as
prejudice of a witness, negativing a contention of amended)
undue delay, or proving an effort to obstruct a
criminal investigation or prosecution. (Sec.28,
Rule 130, ROC, as amended)
The concept of presumption of innocence does not The accused enjoys the constitutional presumption
apply and generally there is no presumption for or of innocence
against a party except in cases provided for by
law.
The concept of confession does not apply. Confession is a declaration of an accused
acknowledging his guilt

PROOF EVIDENCE
It is merely the probative effect of evidence and is It is the mode or manner of proving competent facts
the conviction or persuasion of the mind resulting in judicial proceeding.
from consideration of the evidence
Without evidence, there is no proof
Effect or result of evidence Medium of proof

FACTUM PROBANDUM FACTUM PROBANS

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 The fact or proposition to be established The evidentiary fact tending to prove the fact in issue
-Ultimate facts
Example: If P claims to have been injured by the The evidence offered by P constitutes the material to
negligence of D, while D denies having been prove the liability of D. The totality of evidence to
negligent, the negligence is the fact to be prove the liability is the factum probans.
established. It is the factum probandum.

BURDEN OF PROOF (Onus Probandi) BURDEN OF EVIDENCE

It is the duty of a party to present evidence on the It is the duty of a party to present evidence sufficient to
facts necessary to establish his or her claim or establish or rebut a fact in issue to establish a prima
defense by the amount of evidence required by facie case.
law

For example, preponderance of evidence in civil

cases
The obligation of a party to a litigation to Duty of the party to go forward with evidence to
persuade the court that he is entitled to the relief overthrow the prima facie evidence against him
NEVER SHIFTS. It remains throughout the May shift from one party to the other in the course
entire case exactly where the pleadings originally of the proceedings, depending on the exigencies of the
placed it. case.

EQUIPOISE RULE- a situation where the evidence of the parties is evenly balanced, or there is doubt on
which side the evidence preponderates or weighs more heavily.

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

In criminal cases, where the evidence is evenly balanced, the constitutional presumption of innocence
tilts the scale in favor of the accused.

In civil cases, when the evidence of the parties is in equipoise, the party who has the burden of proof
loses.

Q: In a collection case, who has the burden of proof?

A: The party who alleges a fact has the burden of proving it. In the course of trial in a civil case, once
plaintiff makes out a prima facie case in his favor, the duty or the burden of evidence shifts to the defendant
to controvert plaintiff’s prima facie case, otherwise, a verdict must be returned in favor of the plaintiff. Hence,
the plaintiff must establish the failure to pay on the part of the defendant. On the other hand, defendant has
to prove that the obligation was extinguished.

Another example: Plaintiff had to prove that the defendant failed to pay their obligations under the
promissory note. On the other hand, defendants had to prove their defense that the obligation was extinguished
by the loss of the mortgaged vehicle, which was insured. The mere loss of the mortgaged vehicle does not
automatically relieve the defendants of their obligation. As provided in the Promissory Note with Chattel
Mortgage, the mortgagor must notify and submit proof of loss of the mortgage. (De Leon vs. BPI, G.R. No.
184565, 20 Nov. 2013)
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 B. ADMISSIBILITY
1. REQUISITES
a. The evidence is relevant to the issue; and
It is relevant if it has such a relation to the fact in issue as to induce belief in its existence or non-
existence. (Sec.4, Rule 128, ROC, as amended)
b. The evidence is competent.
The evidence is competent when it is not excluded by the Constitution, the law, or the Rules of
Court. (Sec.3, Rule 128, ROC, as amended)

2.EXCLUSIONARY RULES
Evidence is admissible when it is relevant to the fact in issue and is not excluded by the Constitution, the
law, or these rules. (Sec. 3, Rule 128, ROC, as amended)

a. Constitutional Exclusionary Rules

1. Unreasonable searches and seizures;
2. Privacy of communication and correspondence
3. Right to counsel, prohibition on torture, force, violence, threat, intimidation, or other means which
vitiate the free will; prohibition on secret detention places, solitary incommunicado; and
4. Right against self-incrimination

b. Statutory Exclusionary Rules

1. Lack of documentary stamp tax in documents, instruments or papers required by law to be stamped
makes such documents inadmissible as evidence in court until the requisite stamp/s shall have been
affixed thereto.
2. Any communication obtained by a person, not being authorized by all the parties to any private
communication, by tapping any wire/cable or by using any other device/arrangement to secretly
overhear/intercept/record (OIR) such information by using any device, shall be inadmissible in
evidence in any judicial, legislative, or administrative hearing or investigation (Anti-Wire
Tapping Act)
3. Any confession, admission or statement (CAS) obtained as a result of TORTURE shall be
inadmissible in evidence in any proceedings, except if the same is used as evidence against a
person or persons accused of committing torture. (Sec.8, RA 9745 or Anti Torture Act of 2009)

c. Under the Rules of Court, Rule 130 is the applicable rule in determining the admissibility of
evidence.

d. Court issuances such as:

1. Rules on Electronic Evidence (Compliance with authentication requirements for electronic

evidence)
2. Rules on Examination of Child Witness, such as sexual abuse shield rule; and
3. Judicial Affidavit Rule

ADMISSIBILITY WEIGHT or PROBATIVE VALUE

Refers to the question of whether question is to be Whether the evidence proves an issue
considered at all
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DOCTRINE OF THE FRUIT OF THE POISONOUS TREE
-illegally obtained evidence shall be inadmissible in evidence for any purpose in any proceeding
because they are the “fruit of the poisonous tree”.

For example:
1. Evidence obtained without a valid search warrant subject to exceptions
2. Issuance of general warrants that encourage law enforcers to go on fishing expeditions.
(Sec.3 (2), Art. III, 1987 Constitution)

Illegally seized evidence- obtained as a direct result of the illegal act

Fruit of the poisonous tree- the indirect result of the same illegal act. It is at least once removed from the
illegally seized evidence, but it is equally inadmissible.

What is the principle behind the Doctrine of the Fruit of the Poisonous Tree?
- The evidence illegally obtained by the State should not be used to gain other evidence because the
ORIGINALLY ILLEGALLY OBTAINED EVIDENCE TAINTS ALL EVIDENCE SUBSEQUENTLY
OBTAINED

Relevancy of evidence
- Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-
existence. (Sec. 4, Rule 128, ROC, as amended)

Collateral matters
- Refer to the matters other than the fact in issue.

GR: Evidence on collateral matters is NOT allowed.

XPN: It is allowed when it tends in any reasonable degree to establish the probability or improbability of
the fact in issue. (Sec. 4, Rule 128, ROC, as amended)

For example, motive of a person or his reputation is a matter that may be considered collateral to the subject
of controversy.

MULTIPLE ADMISSIBILITY
- Where the evidence is relevant and competent for 2 or more purposes, such evidence should be
admitted for any or all purposes for which it is offered provided it satisfies all the requirements for its
admissibility.
- For example, depending upon circumstances, the dying declaration of a dying person may be
admissible for 2 or more purposes. It may be offered as a dying declaration and as a part of the res
gestae
- Another example, the statement by a bus driver immediately after the collision that he dozed off in the
wheel while driving may be admissible as admission and or as part of the res gestae

CONDITIONAL ADMISSIBILITY

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 - Where the evidence at the time of its offer appears to be immaterial or irrelevant unless it is
connected with the other facts to be subsequently proved, such evidence may be received on condition
that the other facts will be proved thereafter, otherwise the evidence already given will be stricken
out.

CURATIVE ADMISSIBILITY
- It allows a party to introduce otherwise inadmissible evidence to answer the opposing party’s
previous introduction of inadmissible evidence.
- For example, in an action for damages arising from car accident, the plaintiff, despite objection by the
defendant, was allowed to introduce evidence to show that, on several occasions, the defendant in the
past, had injured pedestrians because of negligence. Following the concept of curative admissibility,
the court may be asked to give the defendant the chance to contradict or explain his alleged past
acts and to show evidence of his past acts of diligence to counteract the prejudice which the
improperly admitted evidence may have caused.
- Thus, a party who first introduces either irrelevant or incompetent evidence into the trial cannot
complain of the subsequent admission of similar evidence from the adverse party relating to the subject
matter. Conversely, the doctrine of curative admissibility should not be invoked where evidence was
properly admitted.
- Therefore, curative evidence is intended to receive inadmissible evidence from a party to neutralize
a previously accepted inadmissible evidence from the other party.

IN GIST, relevant and competent evidence may be CONDITIONAL, MULTIPLE, or CURATIVE

DIRECT EVIDENCE
- that which proves a fact without the need to make an inference from another fact.

CIRCUMSTANTIAL/INDIRECT EVIDENCE
- that which proves a fact in issue indirectly through an inference which the fact finder draws from the
evidence established. It may happen that no prosecution witness has actually seen the commission of
the crime. However, jurisprudence tells us that direct evidence of the crime is NOT the only matrix
from which a trial court may draw its conclusion and finding of guilt. The Rules on Evidence allow
a trial court to rely on circumstantial evidence to support its conclusion of guilt.

For example, the prosecution presented corroborating evidence which constitute an unbroken chain
leading to the inevitable conclusion that accused is guilty of killing the victim. The presence of gunpowder
nitrates on accused after a paraffin test; the firearm used in the killing which could either be a .38 caliber
firearm which was later found to have been recently fired; and the absence of gunpowder nitrates on the
hands of the victim a paraffin test which belies accused’s claim that he was shot by the victim or that the
latter exchanged fire with a police officer.

CUMULATIVE EVIDENCE
- evidence of the same kind and character as that already given and that tends to prove the same
proposition.

CORROBORATIVE EVIDENCE
- one that is supplementary to that already given tending to strengthen or confirm it. It is additional
evidence of a different character to the same point.

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Remember! An extrajudicial confession made by an accused shall NOT be sufficient ground for
conviction, unless corroborated by evidence of corpus delicti

Note: Corroborative testimony is NOT always required. The law does not require that the testimony of a
single witness must be corroborated except where expressly mandated.

WEIGHT AND SUFFICIENCY OF EVIDENCE

- determined not by the number of the witness presented but by the credibility, nature, and quality of the
testimony.

POSITIVE EVIDENCE
- witness affirms in the stand that a certain state of facts does exist or that a certain event happened.
Greater probative value is given to evidence that is positive in nature than that which is accorded to
evidence that is negative in nature.
- When a witness declares of his personal knowledge that a fact did not take place, that is actually a
positive testimony since it is an affirmation of the truth of a negative. Fact.

NEGATIVE EVIDENCE
- witness states that an event did not occur or that the state of facts alleged to exist does not actually
exist.
- Denial as a negative evidence. Denial is considered by the Court to be a very weak form of defense and
can never overcome an affirmative or positive testimony particularly when the latter comes from the
mouth of a credible witness.
- The defense of denial is viewed with disfavor for being inherently weak. To be worthy of consideration
at all, denials should be substantiated by clear and convincing evidence.

COMPETENT EVIDENCE
- One that is not excluded by law in a particular case. Competence, in relation to evidence in general,
refers to eligibility of an evidence to be received as such. The test of competence is the
CONSTITUTION, the LAWS, or the RULES.

CREDIBILITY
- The worthiness of belief, that quality which renders a witness worthy of belief.

Remember! Admissible evidence is NOT necessarily credible evidence.

Admissibility does NOT guarantee credibility.

Findings and conclusions of the trial court on the credibility of witnesses are entitled to great respect
because they have the advantage of observing the demeanor of witnesses as they testify.

JUDICIAL NOTICE AND JUDICIAL ADMISSIONS (Rule 129)

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Facts that need not be proved:
1. Those of which the courts may take judicial notice (Rule 129, ROC, as amended);
2. Those that are judicially admitted (Rule 129, ROC, as amended);
3. Those that are conclusively presumed (Rule 131, ROC, as amended);
4. Those that are disputably presumed but uncontradicted (Rule 131, ROC, as amended);
5. Immaterial allegations
6. Facts admitted or not denied provided they have been sufficiently alleged (Sec. 11, Rule 8, ROC, as
amended);
7. Res ipsa loquitor
8. Admissions by adverse party (Rule 26, ROC, as amended);

JUDICIAL NOTICE
- It is the cognizance of certain facts which judges may properly take and act upon WITHOUT
PROOF because they are supposed to be known to them. It is based on consideration of expediency
and convenience. It displaces evidence, being equivalent to proof.
- Function of judicial notice: it dispenses the presentation of evidence and fulfills the purpose for
which the evidence is designed to fulfill. Its function is to abbreviate litigation by admission of
matters that needs NO evidence because judicial notice is SUBSTITUTE for formal proof of
matter by evidence.

KINDS OF JUDICIAL NOTICE

1. MANDATORY- insofar as those matters enumerated under Sec. 1, Rule 129; When the matter is
subject to a mandatory judicial notice, no motion or hearing is necessary for the court may take
judicial notice of a fact.

Existence and territorial extent of states;

Political history, forms of government and symbols of nationality;
Law of nations;
Admiralty and maritime courts of the world and their seals;
Political constitution and history of the Philippines;
Official acts of Legislative, Executive, and Judicial departments of the National government of the
Philippines;
Laws of nature;
Measure of time; and
Geographical divisions (Sec. 1, Rule 129)

Remember! The list here is exclusive.

2. DISCRETIONARY- on matters which are of public knowledge, or are capable of unquestionable

demonstration, or ought to be known to judges because of their functions. No hearing is required.
(Sec.2, Rule 129, ROC, as amended)

Remember! Judicial notice is NOT judicial knowledge.

The mere personal knowledge of the judge is NOT the judicial knowledge of the court, and
he is not authorized to make his individual knowledge of a fact, not generally or professionally
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 known, the basis of his action. Judicial cognizance is taken only of those matters which are
“commonly known” or “general knowledge”.

Public knowledge
- are those matters coming to the knowledge of men generally in the course of ordinary experiences
of life, or they may be matters which are generally accepted by mankind as true and are capable of
ready and unquestioned demonstration.

Matters which are capable of unquestioned demonstration

- facts, theories, and conclusions which have come to be established and accepted by the specialists in
the areas of natural science, natural phenomena, chronology, technology, geography, statistical
facts and other fields of professional and scientific knowledge.

When judicial notice of a fact may be taken:

1. During the PRE-TRIAL and the TRIAL, the court, motu proprio or upon motion, shall hear the
parties on the propriety of taking judicial notice of any matter.

2. BEFORE JUDGMENT or on APPEAL the court, motu proprio or upon motion, may take judicial
notice of any matter and shall hear the parties thereon if such matter is decisive of a material issue in
the case. (Sec. 3, Rule 129, ROC as amended)

MANDATORY JUDICIAL NOTICE DISCRETIONARY JUDICIAL NOTICE

Court is compelled to take judicial notice Court is NOT compelled to take judicial notice
Court motu proprio Court motu proprio or on request of a party
No motion or hearing Needs hearing

Instances when the Court takes judicial notice:

1. How rapists are NOT deterred by the presence of people nearby, such as the members of their own
family inside the same room, with the likelihood of being discovered, since lust respects no time,
locale or circumstance. (People of the Philippines vs. Neil B. Colorado, G.R. No. 200792, 14
November 2012)
Moral damages and death indemnity require neither pleading nor evidence simply because death through
crime always occasions moral sufferings on the part of the victim’s heirs. (Barut v. People of the Philippines,
G.R. No. 167454, 24 Sept. 2014)

JUDICIAL NOTICE OF FOREIGN LAWS

GR: Courts cannot take judicial notice of foreign laws.

They must be ALLEGED and PROVED.

XPN: when the foreign laws are within the actual knowledge of the court and such laws are well and generally
known; or actually ruled upon in other cases before it; and none of the parties claim otherwise.

DOCTRINE OF PROCESSUAL PRESUMPTION

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 - In international law, the party who wants to have a foreign law applied to a dispute or a case has
the burden of proving the foreign law.
- Where a foreign law is not pleaded or even if pleaded, is not proved, the presumption is that the
foreign law is same as ours.

When foreign law is part of a published treatise, periodical or pamphlet and the writer is recognized in
his profession or calling as an expert in the subject
- The court may take judicial notice of the treatise containing the foreign law. (Sec. 48, Rule 130,
ROC, as amended)

When a foreign law refers to the law of nations

- The Philippines adopts the generally accepted principles of international law as part of the law
of the land (Sec. 2, Art. II of the 1987 Constitution). Being part of the law of the land, they are
therefore, technically, in the nature of local laws and hence, are subject to mandatory judicial
notice.

RULES REGARDING JUDICIAL NOTICE of MUNICIPAL/CITY ORDINANCES

1. MTCs are required to take judicial notice of the ordinances of the municipality or city wherein they sit.
2. RTCs must take judicial notice of ordinances in force in the municipalities within their jurisdiction
only:

a. When expressly authorized to do so by statute, or

b. In case on appeal before them and wherein the inferior court took judicial notice of an ordinance involved in
the same case.
3. Appellate courts may take judicial notice of ordinances not only because the lower courts took judicial
notice thereof but because these are facts capable of unquestionable demonstration

JUDICIAL ADMISSIONS

Judicial admissions are admissions, oral or written made by a party in the course of the proceedings in the
same case, which do not require proof.

JUDICIAL ADMISSIONS EXTRAJUDICIAL ADMISSIONS

Those made in the course of the proceedings in Those made out of court
the same case
Do not require proof and may be contradicted Regarded as evidence and must be offered (formal
only by showing that it was made through offer) as such, otherwise the court will not consider
palpable mistake or that the imputed admission
was not in fact made. (Sec. 4, Rule 129, ROC, as
amended)(Grounds for contradicting judicial
admissions)

Judicial admissions need not be offered in

evidence since it is NOT evidence
Conclusive upon the admitter Rebuttable
Admissible even if self-serving NOT admissible if self-serving
Subject to cross-examination Not subject to cross-examination

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 Different forms of judicial admission
1. Oral-verbal waiver of proof made in open
court, a withdrawal of contention, or
disclosure made before the court, or
admission made by witness in his
testimony or deposition
2. Writing- pleading, bill of particulars,
stipulation of facts, requests for
admission, or a judicial admission
contained in an affidavit used in the case

Judicial admissions are made in the pleadings

filed by the parties, course of the trial either by
verbal or written manifestations/stipulations
including depositions written interrogatories
and requests for admissions; or other stages of
the judicial proceedings, as in pre-trial.

2 ways in which admissions are made in pleadings

Actual admission Implied admission
When a party categorically admits a material When the admission is inferred from the failure to
allegation made by the adverse party specifically deny the material allegations in the other
party’s pleadings.

REMEDY of a party who made a judicial admission

In case of WRITTEN ADMISSION In case of JUDICIAL ADMISSION
File a motion to withdraw such pleading, or any The counsel may move for the inclusion of such
other written instrument containing such admission admission

ADMISSIONS IN THE PRE-TRIAL

(Pre-trial is mandatory)
CIVIL CASES CRIMINAL CASES
One of the purposes of pre-trial in civil cases is for Admission made by the accused in the pre-trial of a
the court to consider the possibility of obtaining criminal case is not necessarily admissible against
stipulations or admissions of facts. Admissions, him or her. To be admissible, the conditions set
therefore, in the pre-trial, as well as those made forth by Sec. 2 of Rule 118 must be complied with.
during depositions, interrogatories or requests All the agreements or admissions made or
for admissions, are all deemed judicial admissions entered during the pre-trial conference shall be
because they are made in the course of the 1. Reduced in writing; and
proceedings of the case 2. Signed by the accused and counsel.
Otherwise, they cannot be used against the
accused

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Admissions made in pleadings which were NOT filed with the court
- Admissions made therein are not judicial admissions if signed by the litigant himself, it is considered
as extrajudicial admission
- If signed by the counsel, not admissible because a counsel only binds his or her client with
respect to admissions in open court and in pleadings actually filed with the court.

Effect of an invalid and ineffective denial of actionable documents attached to the complaint
- When an action is founded upon an actionable document, the genuineness and due execution of the
same instrument shall be deemed admitted unless it is specifically denied under oath (Sec. 8, Rule
8, ROC, as amended) However, the failure to deny the genuineness and due execution of an
actionable document does NOT preclude a party from arguing against the document by evidence of
fraud, mistake, compromise, payment, statute of limitations, estoppel and want of
consideration. However, he is precluded from arguing that the document is a forgery because the
genuineness of document is impliedly admitted.

JUDICIAL ADMISSION
- Failure to deny the genuineness and due execution of said document amounts to a judicial
admission.

Admissions made in amended pleadings

- Admissions in a pleading which had been withdrawn or superseded by an amended pleading,
although filed in the same case, are considered as extrajudicial admissions. Pleadings that have
been amended disappear from the record, lose their status as pleadings, and cease to be judicial
admissions. To be utilized as extrajudicial admissions, they must, in order to have such effect, be
formally offered in evidence.

RULE REGARDING SELF-SERVING EVIDENCE

Self-serving declaration- one that is made by a party, out of court and in his favor. It does not
include the testimony he gives as a witness in court. This cannot be said of a party’s testimony in court made
under oath, with full opportunity on the part of the opposing party for cross-examination.

Effect of a GUILTY PLEA made by the accused during his arraignment LATER WITHDRAWN
- At any time before the judgment of conviction becomes final. Such plea is NOT admissible in
evidence against the accused and is not even considered as an extrajudicial admission.

PRESUMPTIONS (Rule 131)

Presumption- an assumption of fact that the law requires to be made from another fact or groups of facts found
or otherwise established in the action. It is “an inference as to the existence of a fact not actually known, arising
from its usual connection with another which is known, or a conjecture based on past experience as to what
course human affairs ordinarily take.

What is the effect of presumption?

It has the effect of shifting the burden of proof to the party who would be disadvantaged by a
finding of the presumed fact. The presumption controls decision on the presumed fact unless there is
counterproof that the presumed fact is not so.
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 2 KINDS OF PRESUMPTION
CONCLUSIVE or ABSOLUTE DISPUTABLE PRESUMPTION
PRESUMPTION
They are rules determining the quantity of evidence Species of evidence that may be accepted and acted on
requisite for the support of any particular averment when there is no other evidence to uphold the
which is not permitted to be overcome by any proof contention for which it stands, or one which may be
that the fact is otherwise, if the basic facts are overcome by other evidence.
established. They may not be overturned by
evidence, however strong the evidence is.
Can they be rebutted by evidence?
No, they are presumptions that may not be Yes, disputable presumptions are presumptions that
overturned by evidence, however strong the may be overcome by contrary evidence
evidence is
The two conclusive presumptions under the The following are the pertinent disputable
Rules: presumptions under the Rules of Court:
a) That a person is innocent of crime or wrong;
1. Whenever a party has, by his own declaration, b) That an unlawful act was done with an unlawful
act, or omission, intentionally and deliberately intent;
led another to believe a particular thing true, c) That a person intends the ordinary consequences
and to act upon such belief, he cannot, in any of his or her voluntary act;
litigation arising out of such declaration, act or d) That a person takes ordinary care of his or her
omission, be permitted to falsify it. concerns;
2. The tenant is NOT permitted to deny the title e) That evidence willfully suppressed would be
of his landlord at the time the commencement adverse if produced;
of the relation of landlord and tenant between f) That money paid by one to another belonged to
them. the latter;
g) That a thing delivered by one to another belonged
DOCTRINE OF ESTOPPEL-states that an to the latter;
admission or representation is rendered conclusive h) That an obligation delivered up to the debtor has
upon the person making it and cannot be denied or been paid;
disproved as against the person relying therein. i) That prior rents or installments has been paid
when a receipt for the later one is produced.
j) That a person found in possession of a thing
taken in the doing of a recent wrongful act is the
taker and doer of the whole act; otherwise, that
things which a person possesses, or exercises acts
of ownership over, are owned by him or her.
(Possession is either unexplained or that the
profferred explanation is rendered implausible)
k) That a person in possession of an order on
himself or herself for the payment of the money, or
the delivery of anything, has paid the money or
delivered the thing accordingly;
l) That a person acting in public office was regularly
appointed or elected to it.
m) That official duty has been regularly performed
n) That a court, or judge acting as such, whether in
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 the Philippines or elsewhere, was acting in the
lawful exercise of jurisdiction;
o) That all matters within an issue raised in a case
were laid before the court and passed upon by
it; and in like manner that all matters within an
issue raised in a dispute submitted for arbitration
were laid before the arbitrators and passed upon by
them;
p) That private transactions have been fair and
regular;
q) That the ordinary course of business has been
followed.
r) That there was a sufficient consideration for a
contract.

PRESUMPTION OF REGULARITY OF PERFORMANCE OF OFFICIAL DUTY

- Stands only when no reason exists in the records by which to doubt the regularity of the performance
of official duty.

FORGED DOCUMENT
- In the absence of a satisfactory explanation, one found in possession of an who used the forged
document is the forger of said document. If a person had in his possession a falsified document and
he made use of it, taking advantage of it and profiting thereby, the clear presumption is that he is
the material author of the falsification.

NULLIFICATION OF SALE on the ground that the DEED OF ABSOLUTE SALE was simulated
- The following disputable presumptions may be raised:
1. The private transactions have been fair and regular;
2. The ordinary course of business has been followed; and
3. There was sufficient consideration for a contract.
(If these presumptions are unrebutted, the Deed of Sale will be upheld)

OBJECT (REAL) EVIDENCE

Nature of object or real evidence

- 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 (Sec.1, Rule 130, ROC, as amended) It is not limited to the view of an object. It
covers the entire range of human senses: hearing, taste, smell, and touch.

Physical evidence is a mute, but eloquent manifestation of truth and it ranks high in our hierarchy of
trustworthy evidence- where physical evidence runs counter to testimonial evidence, physical evidence should
prevail.

In criminal cases such as murder/homicide or rape, the Supreme Court has, on many occasions, relied
principally upon physical evidence in ascertaining the truth. Where the physical evidence on record runs
13
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counter to the testimonies of witnesses, the primacy of physical; evidence must be upheld. (PO1 Ocampo vs.
People of the Philippines, G.R.No. 194129)

Remember! DOCUMENTS are object or real evidence if the purpose is to PROVE THEIR EXISTENCE
or condition, or the nature of the handwriting thereon, or to determine the age of the paper used, or the
blemishes or alterations thereon as where falsification is alleged.

Examples of object or real evidence:

1. Any article or object which may be known or perceived using the senses;
2. Examination of the anatomy of a person or of any substance taken therefrom;
3. Conduct of tests, demonstrations, or experiments;
4. Examination of representative portrayals of the object in question (maps, diagrams)
5. Documents, if the purpose is to prove their existence or condition, or the nature of the handwriting
thereon or to determine the age of the paper used, or the blemishes or alterations.
6. A person’s appearance, where relevant

PARAFFIN TEST
- A test which can establish the presence or absence of nitrates or nitrites on the hand, but the test
alone cannot determine whether the source of nitrates or nitrites was discharge of firearm.
- The paraffin test is merely corroborative evidence, neither proving nor disproving that a person
did indeed fire a gun.
- The positive or negative results of the test can be influenced by certain factors such as the wearing
of gloves by the subject, perspiration of the hands, wind direction etc. (People vs. Buduhan, G.R.No.
178196, 06 Aug. 2008)
- A person who tests positive may have handled one or more substances with the same positive
reaction for nitrates such as explosives, fireworks, fertilizers, pharmaceuticals, tobacco and
leguminous plants. (People vs. Cajumocan, G.R. No. 155023

POLYGRAPH TEST (Lie Detector Tests)

- It is an electromechanical instrument that simultaneously measures and records certain physiological
changes in the human body that are believed to be involuntarily caused by an examinee’s conscious
attempt to deceive the questioner. (West’s Legal Thesaurus Dictionary, 1986) A polygraph test
operates on the principle that stress causes physiological changes in the body which can be
measured to indicate whether the subject examination is telling the truth.

Q: Ron was charged with murder for shooting Carlo. After trial, Ron was found guilty as charged. On appeal,
Ron argued that the trial court should have acquitted him as his guilt was not proved beyond reasonable doubt.
He argues that the paraffin test conducted on him 2 days after he was arrested yielded a negative result.
Hence, he could not have shot Carlo. Is Ron correct?

A: No, while the paraffin test was negative, such fact alone did not ipso facto prove that Ron is innocent. A
negative paraffin result is NOT conclusive proof that a person has not fired a gun. It is possible to fire a
gun and yet be negative for nitrates, as when the culprit is wearing gloves or he washes his hands
afterwards. Here, since Ron submitted himself for paraffin test only 2 days after the shooting, it was likely he
had already washed his hands thoroughly, thus removing all traces of nitrates therefrom.

14
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shall be subjected to criminal prosecution and administrative charges.
 Requisites for Admissibility of an Object Evidence (ReCo-A-Wi-O)

1. It must be Relevant and Competent;

2. It must be Authenticated; To authenticate the object, it must be shown that the object is the very thing
that is either the subject matter of the lawsuit or the very object involved to prove an issue in the case.
3. The authentication must be made by competent Witness who should identify the object to be the actual
thing involved; and
4. The object must be formally Offered in evidence

Remember! The purposes of authentication of object or real evidence are first, to prevent the introduction
of an object different from the one testified about; and to ensure that there have been no significant changes
in the object’s condition.

Q: In a criminal case for murder, the prosecution offered as evidence, photographs showing the accused
mauling the victim with several of the latter’s companions. The person who took the photograph was not
presented as a witness. Be that as it may, the prosecution presented the companions of the victim who testified
that they were the ones in the photographs. The defense objected to the admissibility of the photographs
because the person who took the photographs was not presented as witness. Is the contention of the defense
tenable?

A: No. Photographs, when presented in evidence, must be identified by the photographer as to its
production and testified as to the circumstances under which they were produced. The value of this kind of
evidence lies in its being a correct representation or reproduction of the original, and its admissibility is
determined by its accuracy in portraying the scene at the time of the crime. The photographer, however, is not
the only witness who can identify the pictures he has taken. The correctness of the photograph as a faithful
representation of the object portrayed can be proved prima facie, either by the testimony of the person who
made it or by other competent witnesses who can testify to its exactness and accuracy, after which the
court can admit it subject to impeachment as to its accuracy. Here, the photographs are admissible as
evidence in as much as the correctness thereof was testified to by the companions of the victim. (Sison
vs .People, G.R. Nos. 108280-83, 16 Nov.1995)

Q: A was charged with and convicted of the special complex crime of robbery with homicide by the trial
court. On his appeal, he asseverates that the admission as evidence of victim's wallet together with its
contents, violates his right against self-incrimination. Likewise, A sought for their exclusion because during
the custodial investigation, wherein he pointed to the investigating policemen the place where he hid the
victim's wallet, he was not informed of his constitutional rights (Miranda rights). Decide the case.

A: The Right Against Self-Incrimination does not apply to the instant case where the evidence sought to
be excluded is not an incriminating statement but an Object Evidence. Infractions on the so-called
“Miranda rights” render inadmissible only the extrajudicial confession or admission made during custodial
investigation. The admissibility of other evidence is not affected even if obtained or taken in the course of
custodial investigation. Concededly, A was not informed of his rights during the custodial investigation. Neither
did he execute a written waiver of these rights in accordance with the constitutional prescriptions. Nevertheless,
these constitutional shortcuts do not affect the admissibility of the victim's wallet and its contents.
(People v. Malimit, G.R. No. 109775, 14 Nov. 1996)

15
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 CATEGORIES OF OBJECT EVIDENCE FOR PURPOSES OF AUTHENTICATION
Unique objects Objects made unique Non-unique objects
Those that have readily Those that are made readily Those which have no identifying
identifiable marks identifiable (e.g.bolo knife with marks and cannot be marked. (e.g.
(e.g. a caliber gun with serial identifying marks on it) drops of blood)
number XXX888)

CHAIN OF CUSTODY in relation to Section 21 of the COMPREHENSIVE DANGEROUS DRUGS ACT

OF 2002

To guaranty the integrity of the physical evidence and to prevent the introduction of evidence which
is NOT authentic. Where the exhibit is positively identified, the chain of cudtody of physical evidence is
irrelevant. Since it is called a chain, there must be links to the chain. The links are the people who actually
handled or had custody of the object. Each link must show how he received the object, how he handled it
to prevent substitution and how it was transferred to another. Each must testify to make the foundation
complete.

LINKS IN THE CHAIN OF CUSTODY

1. Seizure and marking of the illegal drug recovered from the accused by the apprehending officer;
2. Turnover of the illegal drug by the apprehending officer to the investigating officer;
3. Turnover by the investigating officer to the forensic chemist for laboratory examination; and
4. Turnover and submission of the marked illegal drug by the forensic chemist to the court.

PROCEDURE TO BE FOLLOWED IN THE CUSTODY AND HANDLING OF SEIZED DANGEROUS

DRUGS (Sec. 21, Art. II of RA 9165, as amended by RA No. 10640)

1. Apprehending team shall, immediately after seizure and confiscation, make a physical inventory and
photograph of the same in the presence of : accused or his representative or counsel, a representative
of the National Prosecution Service or the Media, and any elected public official who shall be
required to sign the copies of the inventory and be given a copy.
2. The objects seized must be submitted to PDEA for qualitative and quantitative examination within 24
hours from the confiscation/seizure
3. The forensic laboratory examiner is required to issue within 24 hours after receipt of the drugs a
certification of the forensic laboratory examination results which shall be done under oath.
4. After filing of the criminal case, the court shall, within 72 hours, conduct an ocular inspection and the
PDEA shall within 24 hours proceed with the destruction of the same.
5. Dangerous Drugs Board shall then issue a sworn certification as to the fact of destruction or burning to
be submitted to the court. Also, to be submitted are the representative samples (only minimum
quantity) of the substances in the custody of the PDEA.

Remember! The alleged offender or his/her representative or counsel shall be allowed to personally
observe all the above proceedings. His presence shall NOT constitute an admission of guilt.

Strict Compliance with Section 21

16
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Q: Bulding was arrested at Mercury Drug Store Lagro branch in Quezon City for illegal sale of dangerous
drugs (Section 5, R.A. No. 9165). The dangerous drugs sachets containing white crystalline substance were
marked by PO2 Inway with AB-20-09-10. To avoid the on-going commotion in the area, the team
proceeded to Camp Karingal which is 17 kilometers car ride away from the place of arrest. There,
physical inventory, and photographing required under Sec. 21 of R.A. No. 9165 was conducted in the presence
of Bulding, the buy- bust team, and a media representative. After the inventory, PO3 Corona prepared the
inventory receipt for “a sachet containing marijuana fruiting tops.” This was submitted to the QCPD Crime
Laboratory. Banding was later on charged with violation of Section 5 of R.A. No. 9165. Bulding argues that
he cannot be convicted due to lapses in the chain of custody of the drugs seized. Can Bulding be held
criminally liable under Section 5 of R.A. No. 9165?

A: Bulding cannot be convicted under Section 5 of R.A. No. 9165 due to the lapses in the chain of custody
procedure required under Section 21 of the same law. Section 21 requires strict compliance. The accuracy
it requires goes into the covertness of buy- bust operation and the very nature of narcotic substance.

From the language of Section 21, the mandate to conduct inventory and take photographs "immediately after
seizure and confiscation" necessarily means that these shall be accomplished at the place of arrest. When this
is impracticable, the Implementing Rules and Regulations of R.A. No. 9165 allows for two (2) other options: at
the nearest police station or at the nearest office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures. To sanction non-compliance, the prosecution must prove that the
inventory was conducted in either practicable place.

The physical inventory and photographing of the drugs seized was not done in the place of arrest,
but was done in Camp Karingal, which was impractical since it was 17 kilometers car ride away from the place
of arrest. The clerical errors and discrepancies in the inventory receipt and the chemistry report cannot be
dismissed since they cast doubt as to the origin of the drug seized. (People of the Philippines v. Banding, G.R.
No. 2333470, 14 Aug. 2019)

In the case of People of the Philippines v. Ramos, the Supreme Court ruled that the witnesses' absence
at the time of seizure is not a justifiable ground for not immediately marking the items, since they should
have at the onset, been present or near the place of seizure. Since the law requires the apprehending team to
conduct the inventory in front of the required witnesses and immediately after seizure, this necessarily means
that, in buy-bust operations, the required witnesses must be present at the time of seizure. (G.R. No. 225335, 28
Aug. 2019)

The phrase "immediately after seizure and confiscation" means that the physical inventory and
photographing of the drugs were intended by the law to be made immediately after, or at the place of
apprehension. It is only when the same is not practicable that the law allows the inventory and
photographing to be done as soon as the buy-bust team reaches the nearest police station or the nearest
office of the apprehending team/officer.

Well-entrenched in jurisprudence is the rule that the conviction of the accused, must rest, not on the
weakness of the defense, but on the strength of the prosecution. Since there is no showing that a proper
inventory and taking of pictures was done by the apprehending officers, the Court is left with absolutely no
guarantee of the integrity of the sachets other than the self-serving assurances of the police officers. (People of
the Philippines v. Que, G.R. No. 212994, 31 Jan. 2018)
17
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 Citing People v. Que, what is critical in drug cases is not the bare conduct of the inventory, marking, and
photographing. Instead, it is the certainty that the items allegedly taken from the accused retain their integrity,
even as they make their way from the accused to an officer effecting the seizure, to an investigating officer to a
forensic chemist, and ultimately, to courts where they are introduced as evidence. Sec. 21(1)’s requirements are
designed to make the first and second link foolproof. Conducting the inventory and photographing immediately
after seizure, exactly where the seizure was done, or at a location as practicably close to it, minimizes, if not
eliminates, room for adulteration or planting of evidence. (People of the Philippines v. Banding, supra.)

Q: Karlo was charged with Illegal Possession of Dangerous Drugs. He questions his conviction by arguing that
there are inconsistencies in the testimonies of the witnesses. He argues that the prosecution failed to establish
compliance with the three-witness rule mandated by R.A. No. 9165. Furthermore, Karlo casts doubt on the
validity of the search conducted in that the implementation of the search warrant was documented to
begin at 4:30 A.M. while the seizure of the drugs was made at around 6:30 A.M. Such interval, Karlo
claims, gave the police officers an opportunity to fabricate evidence against him. Do the alleged
inconsistencies in the testimonies of the witnesses warrant the reversal of the conviction of Karlo?

A: No. As to the first argument, the fact that Cruz's affidavit neglects to categorically mention the
presence of DOJ representative Mendoza during the search operation does not run counter to his
testimony. The perceived discrepancy neither affects the truth of the testimony of the prosecution witness
nor discredits his positive identification of appellant. Besides, apart from the duly signed Certificate of
Inventory and Certificate of orderly Search, it had already been stipulated and admitted by the parties that
Mendoza was indeed a witness in the conduct of the search and inventory of the confiscated drugs. For this
reason, such stipulation is already a judicial admission of the facts stipulated . Appellant is clearly beyond
his bearings in disputing this judicially admitted fact. What is more, photographs were offered in evidence to
prove that the necessary witnesses, including Mendoza, had been present during the search operation.

As to the second argument, the supposed inconsistency regarding the exact time the search
warrant was implemented is, if at all, minor and without consequence. As argued by the appellee, the team had
arrived at appellant's house to implement the search warrant at 4:30 a.m. The police officers did not
immediately search the residence because they still had to wait for the barangay officials and the media
representatives. Such minor inconsistency does not warrant the reversal of appellant's conviction.
(Concepcion y Tabor v. People, G.R. No. 243345, 11 March 2019)

INTEGRITY AND EVIDENTIARY VALUE OF THE SEIZED ITEMS

The prosecution is not required to elicit testimony from every custodian or from every person who had
an opportunity to come in contact with the evidence sought to be admitted. As long as one of the chains
testifies and his testimony negates the possibility of tampering and that the integrity of the evidence is
preserved, his testimony alone is adequate to prove the chain of custody.

Failure to strictly comply with rules of procedure, however, does not ipso facto invalidate or
render void the seizure and custody over the items. Minor deviations from the chain of custody rule are
justified when the prosecution is able to show that:
1. There is justifiable ground for non-compliance; and
2. The integrity and evidentiary value of the seized items are properly preserved (People v.
Dumagay, G.R. No. 216753, 07 Feb. 2018)
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 Q: A buy-bust operation was conducted wherein PO2 Montales was designated as the poseur- buyer.
The buy-bust team proceeded to Saunar's residence. PO2 Montales introduced herself as a buyer of shabu and
handed Saunar the marked money. After a brief conversation, Saunar went inside the house. She returned
moments later "with two (2) transparent plastic sachets containing white crystalline substance." PO2 Montales
examined the plastic sachets and gave the pre-arranged signal by removing her sunglasses. This indicated the
consummation of the transaction to the other members of the buy-bust team. PO2 Montales brought the seized
items to the crime laboratory for scientific examination. The contents of the two (2) plastic sachets weighed
0.0496 grams and 0.0487 grams. They tested positive for shabu. Is Saunar liable even if only a miniscule
amount is alleged to have been seized from him?

A: No. The prosecution must prove beyond reasonable doubt that the transaction actually took place by
establishing the following elements: "(1) the identity of the buyer and the seller, the object and the
consideration; and (2) the delivery of the thing sold and the payment." Aside from this, the corpus delicti
must be presented as evidence in court. In cases involving dangerous drugs, "the corpus delicti is the
dangerous drug itself." Although strict compliance with the Chain of Custody Rule may be excused provided
that the integrity and evidentiary value of the seized items are preserved, a more exacting standard is required
of law enforcers when only a miniscule amount of dangerous drugs are alleged to have been seized from
the accused.

In this case, only 0.0496 grams and 0.0487 grams or a total of 0.0983 grams of shabu were allegedly
taken from accused-appellant. Such a miniscule amount of drugs is highly susceptible to tampering and
contamination. A careful review of the factual findings of the lower courts shows that the prosecution failed to
discharge its burden of preserving the identity and integrity of the dangerous drugs allegedly seized from
accused- appellant. The prosecution failed to establish who held the seized items from the moment they
were taken from accused-appellant until they were brought to the police station. The designated poseur-
buyer, PO2 Montales, did not mention who took custody of the seized items for safekeeping. (People vs.
Saunar, G.R.No. 207396, 09 Aug. 2017)

Marking after seizure is the starting point in the custodial link, thus, it is vital that the seized
contrabands are immediately marked because succeeding handlers of the specimen will use the markings as
reference. (People vs. Salim, G.R.No. 208093, 20 Feb. 2017)

Q: A buy-bust operation was conducted by the police where PO1 Aure, as the poseur-buyer, was accompanied
by the informant. The team proceeded to the whereabouts of Holgado. PO1 Aure handed Holgado two marked
Php 100 bills. Holgado called Misarez. Misarez stepped out of the restroom and handed a plastic sachet
containing a white crystalline substance to PO1 Aure. PO1 Aure examined the sachet’s contents and took out his
cellphone signaling that the sale of drugs had been consummated. The police operatives then approached PO1
Aure and apprehended Holgado and Misarez. PO3 Abuyme prepared an inventory of the seized items. PO1
Aure supposedly marked the plastic sachet handed to him by Misarez at the site of the buy-bust operation.
Following their arrest, Holgado and Misarez were charged with violating Secs. 5 (Sale of dangerous drugs), 11
(Possession of dangerous drugs), and 12 (Possession of drug paraphernalia) of R.A. No. 9165. RTC found
Holgado and Misarez guilty of illegal sale of dangerous drugs and acquitted them of the charges pertaining to
Sec. 11 as the drugs supposedly seized were not introduced in evidence. Holgado, was also acquitted of the
charges relating to Sec. 12 of as the paraphernalia to which PO2 Castulo testified to in court were different from

19
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those indicated in the inventory supposedly made. CA affirmed the conviction. Is the presumption of regularity
in the performance of duties applicable in this case?

A: The presumption of regularity in the performance of duties cannot be applied in this case. Given the flagrant
procedural lapsed the police committed in handling the seized shabu and the obvious evidentiary gaps in
the chain of its custody, a presumption of regularity in the performance of duties cannot be made in this
case. The presumption applies when nothing in the record suggests that the law enforcers deviated from the
standard conduct of official duty required by law; where the official’s act is irregular on its face, the
presumption cannot arise. (People of the Philippines vs. Holgado, G.R. No. 207992, 11 Aug. 2014)

To summarize:
Chain of custody - The chain of custody refers to recorded authorized movements and custody of
confiscated dangerous drugs. It involves testimony on every link in the chain - from the confiscation of the
illegal drugs to its receipt in the forensic laboratory up to its presentation in court. Generally, there are four links
in said chain of custody: 1) the seizure and marking, if practicable, of the illegal drug confiscated from the
accused by the apprehending officer; 2) the turnover of the seized drug by the apprehending officer to the
investigating officer; 3) the turnover by the investigating officer of said item to the forensic chemist for
examination; and, 4) the turnover and submission thereof from forensic chemist to the court (CICL v.
People, G.R.230964, March 02, 2022; People vs. Mariano, G.R. No. 247522, February 28, 2022; People vs.
David, G.R. No. 260990, June 21, 2023)

Not all people who came into contact with the seized drugs are required to testify in court. There is
nothing in R.A. 9165 or in any rule implementing the same that imposes such requirement. As long as the chain
of custody of the seized drug was clearly established not to have been broken and that the prosecution did not
fail to identify properly the drugs seized, it is not indispensable that each and every person who came into
possession of the drugs should take the
witness stand. (Belga vs. People, G.R. No. 241836. November 11, 2021)

The non-presentation as witness of the evidence custodian is not a crucial point against the prosecution
since it has the discretion as to how to present its case and the right to choose whom it wishes to present as
witnesses. (People vs. Campugan, G.R. No. 248418,May 5, 2021)

“Chain of custody" rule as a mode of authenticating illegal drug substances in order to determine its
admissibility. However, such rule has not yet been extended to other substances or objects. If the proffered
evidence is unique, readily identifiable, and relatively resistant to change, that foundation need only consist of
testimony by a witness with knowledge that the evidence is what the proponent claims. The chain of custody
rule does not apply to an undetonated grenade or loose firearm, for it is not amorphous and its form is relatively
resistant to change. A witness of the prosecution need only identify the hand grenade or loose firearm, a
structured object, based on personal knowledge that the same contraband or article is what it purports to be —
that it came from the person of accused. (Reyes vs.People, G.R. No. 255668, January 10, 2023)

Nisperos guidelines – In Nisperos vs. People, G.R. No. 250927, 29 November 2022,
the Supreme Court adopted the following guidelines in order to guide the bench, the bar, and the public,
particularly our law enforcement officers:
(1) The marking of the seized dangerous drugs must be done:
(a) Immediately upon confiscation;
(b) At the place of confiscation; and
(c) In the presence of the offender (unless the offender eluded the arrest);
20
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(2) The conduct of inventory and taking of photographs of the seized dangerous drugs must be done:
(a) Immediately after seizure and confiscation;
(b) In the presence of the accused, or the person/s from whom such items were confiscated and/or seized, or
his/her representative or counsel; and
(c) Also in the presence of the insulating witnesses, as follows:

(i) if the seizure occurred during the effectivity of R.A. No. 9165, or from July 4, 2002 until August 6,
2014, the presence of three witnesses, namely, an elected public official; a Department of Justice
(DOJ) representative; and a media representative;

(ii) if the seizure occurred after the effectivity of R.A. No. 10640, or
from August 7, 2014 onward, the presence of two witnesses, namely, an elected public official; and a
National Prosecution Service representative or a media representative; and
(3) In case of any deviation from the foregoing, the prosecution must positively acknowledge the same and
prove (a) justifiable ground/s for non-compliance and (b) the proper preservation of the
integrity and evidentiary value of the seized item/s. (People vs. Verdadero, G.R. No. 258316, November 20,
2023)

Marking - Marking of the seized dangerous drugs is the first and most crucial step in proving an unbroken
chain of custody in drug-related prosecutions. While marking is not mentioned in Section 21 of R.A. No. 9165,
the importance of immediate and proper marking of the confiscated items has been affirmed in a string of cases.
(People vs. Campugan, G.R. No. 248418, May 5, 2021; People vs. Valencia, G.R. No. 250610, July 10, 2023)

The first link involves the seizure, marking, physical inventory, and photographing of the seized
items. Case law teaches that the seized item must be immediately marked at the place of arrest to obviate any
possibility of tampering or switching. This precautionary measure unfortunately, was blatantly disregarded by
the police officers. The records clearly show that the police officers did not immediately mark the seized items
at the place of the arrest. Instead, they brought the unmarked seized items to their office on the pretext that they
felt uneasy marking the items at the place of arrest considering the happening of several shooting incidents
thereat.

Concededly, deviations from the clear-cut procedure may be allowed, the same however (1) must
be satisfactorily explained by the prosecution; (2) the integrity and evidentiary value of the seized
evidence had been preserved; and (3) the justifiable ground for non- compliance is proven as a fact.

In this case, the apprehending team's explanation is hardly satisfactory. There was no showing of an
imminent danger to their life. Also, the law enforcers' allegation that the place was unsafe was self-serving. It
was not established as a fact. Hence, it does not merit any credence. (People vs. Castillo, G.R. No. 242520,
November 15, 2021; People vs. David, G.R. No. 260990,
June 21, 2023)

Aside from marking, the seized items should be placed in an envelope or an evidence bag unless the
type and quantity of these items require a different type of handling and/or container. The evidence bag or
container shall accordingly be signed by the handling officer and turned over to the next officer in the chain of
custody. The purpose of placing the seized item in an envelope or an evidence bag is to ensure that the item is
secured from tampering, especially when the seized item is susceptible to alteration or damage. (People
vs.Valencia, G.R. No. 250610, July 10, 2023)
21
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Inventory and photography – Under Section 21 of RA No. 9165 as amended by RA No. 10640, the
apprehending team having initial custody and control of the dangerous drugs, controlled precursors and
essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure
and confiscation, conduct a physical inventory of the seized items and photograph the same in the
presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, with an elected public official and a representative of the National Prosecution
Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof.

The original version of Section 21 of RA No. 9165 expressly stated that the drugs shall be subjected to
inventory, and photography by the apprehending officer/team. Yet, this should not be strictly interpreted to mean
that only the seized illegal drugs should undergo the said procedure, to the exclusion of the other items in the
list, specifically "plant sources of dangerous drugs, controlled precursors and essential chemicals,
instruments/paraphernalia and/or laboratory equipment." (CICL v. People, G.R. 230964, March 02, 2022) At
any rate, RA 10640, which has amended Section 21 of RA No. 9165, expressly requires that “drugs, controlled
precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment” shall be subjected
to inventory, and photography.

Under Section 21 of RA No. 9165 as amended by RA No. 10640, the inventory and photography of the
seized items must be made in the presence of “at least three persons”, to wit: (1) the accused or the person
from whom such items were confiscated or his representative or counsel; (2) any elected public official,
and (3) the media or representatives of National Prosecution Service. RA No. 9165 as amended uses the
disjunctive “or” in the phrase “the National Prosecution elected public official Service or the media.” Thus, a
representative from the media and a representative from the National Prosecution Service are now
alternatives to each other (People vs. Que, G.R. No. 212994, January 31, 2018; People vs. Baluyot, G.R. No.
243390, October 05, 2020; CICL v. People, G.R. 230964, March 02, 2022)

The mandatory witnesses under Section 21 of RA No. 9165 need not necessarily witness the arrest
of the accused and seizure of the drugs due to the serious risk to their lives and the operations. But they
must be at or near the place of apprehension, or readily available thereat, to witness the immediately ensuing
inventory. (Nisperos vs. People, G.R. No. 250927, November 29, 2022; People vs. Mendiola, G.R. No. 259181,
August 02, 2023; People vs. Valencia, G.R. No. 250610, July 10, 2023)

The original version of Section 21 of RA No. 9165 did not provide the effect of non-compliance of the
rule on inventory and photography of the confiscated item. Section 21 of RA No. 9165 as amended by Republic
Act No. 10640, now includes a proviso that sanctions noncompliance under "justifiable grounds": Provided,
finally, That noncompliance of these requirements under justifiable grounds, as long as the integrity and the
evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render
void and invalid such seizures and custody over said items (People vs. Que, G.R. No. 212994, January 31,
2018).
The justifiable ground for non-compliance must be proven as a fact, because the Court cannot
presume what these grounds are or that they even exist. Moreover, for the above-saving clause to apply, the
prosecution must explain the reasons behind the procedural lapses, and that the integrity and evidentiary value
of the seized evidence had nonetheless been preserved (People vs. Paz, G.R. No. 229512, January 31, 2018).
The following are justifiable grounds for failure to comply with the three-witnesses rule:
1. The attendance of elective official and media or NPS representative was impossible because the place of
arrest was a remote area;

22
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2. The safety of these required witnesses during the inventory and photograph of the seized drugs was
threatened by an immediate retaliatory action of the accused or any person acting for and in his behalf;
3. The elected official themselves were involved in the punishable acts sought to be apprehended;
4. The time constraints and urgency of the anti-drug operations, which often rely on tips of confidential
assets, prevented the law enforcers from obtaining the presence of the required witnesses even before the
offenders could escape; or
5. Earnest efforts to secure the presence of these required witnesses within the period required under
Article 125 of RPC prove futile through no fault of the arresting officers, who face the threat of being
charged with arbitrary detention. (People vs. Lim, G.R. No. 231989, September 4, 2018; People vs. Addin, G.R.
No. 223682, October 09, 2019; People vs. Mariano, G.R. No. 247522, February 28, 2022)

While PO3 Tutor testified that they exerted diligent efforts in securing the presence of the witnesses,
sheer statements of unavailability of the witnesses given by the apprehending officers are not justifiable reasons
for noncompliance with the requirement. It bears stressing that the lack of evidence of serious attempts to
secure the presence of the necessary witnesses result in a substantial gap in the chain of custody of
evidence that shall adversely affect the authenticity of the prohibited substance presented in court.
(People vs. Mariano, G.R. No. 247522, February 28, 2022)

The prosecution failed to explain satisfactorily the absence of the representative from the media. That
nobody is answering the telephone and that the media outlet is two towns away fail to
convince. The police officers could have reached out to another media outlet and not limited themselves to
Siquijor Mirror. That the outlet is two towns away from the site likewise did not help their position.(People vs.
Bation, G.R. No. 237422, February 14, 2024)

In People vs. Lim, supra, an agent testified that no members of the media and barangay officials arrived
at the crime scene because it was late at night and it was raining, making it unsafe for them to wait at the
house of the accused. Another agent similarly declared that the inventory was made in the PDEA office
considering that it was late in the evening and there were no available media representative and barangay
officials despite their effort to contact them. He admitted that there are times when they do not inform the
barangay officials prior to their operation as they might leak the confidential information. These justifications
are unacceptable as there was no genuine and sufficient attempt to comply with the law.

The prosecution likewise failed to explain why they did not secure the presence of a representative
from the DOJ. Accused was acquitted. In People v. Lim, supra, the Supreme Court, En Banc, expressly
required that the police officers must in the sworn statements state their compliance with the requirements
of Section 21 of R.A. No. 9165 or the justification for non-compliance thereof and steps taken to preserve
the integrity of the confiscated dangerous drugs; otherwise, the investigating fiscal must not immediately file
the case before the court. Instead, he must refer the case for further preliminary investigation. If the
investigating fiscal filed the case despite such absence, the court may exercise its discretion to either refuse to
issue a commitment order or warrant of arrest or dismiss the case outright for lack of probable cause.

The policeman failed to comply with the rule on three-witnesses and did not offer justifiable grounds
for such non-compliance. However, the issue of non–compliance with Section 21 of R.A. No. 9165 cannot be
raised for the first time on appeal. Hence, the defense of the accused should be rejected (People v. Badilla,
G.R. No. 218578,August 31, 2016)

When the quantity of the confiscated substance is miniscule (e.g., 0.03 grams of shabu), the
requirements of Section 21 of RA No. 9165 on the inventory and photograph-taking before the required
23
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three-witness must be strictly complied with. (People vs. Saragena, G.R. No. 210677, August 23, 2017) On
the other hand, a large quantity of drugs (e.g., 2,000.71 grams of cocaine) seized reduces, if not eradicates,
the possibility of planting or tampering with evidence (People vs. Vastine, G.R. No. 258328, November 29,
2022; People vs. Omar, G.R. No. 238870, October 06, 2021) and renders the defense of frame-up difficult to
believe. (People vs. Wai Tang, G.R. No. 238517, November 27, 2019)

Place where inventory and photography shall be conducted

- Section 21 of RA No. 9165 as amended by RA No. 10640 includes a specification of locations where the
physical inventory and taking of photographs must be conducted. The amended section uses the mandatory verb
"shall." For search with warrant, the physical inventory and photograph shall be conducted at the place
where the warrant is served. (People vs. Que, G.R. No. 212994, January 31, 2018)

For warrantless seizures, the law further requires that the inventory and the taking of photographs be
done at the place of seizure, or in the nearest police station or office of the apprehending team, whichever
is practicable. To stress, the operative phrase in the provision regarding the place of conduct of inventory and
taking of photographs is "whichever is practicable" which means that the police officers have the option to
conduct the process in the nearest police station, and not on the actual site of seizure provided that: (1) it is not
practicable to conduct the process at the place of seizure; or (2) the items seized are threatened by immediate or
extreme danger at the place of seizure. (People vs. David, G.R. No. 260990, June 21, 2023; People vs. Valencia,
G.R. No. 250610, July 10, 2023)

In case of warrantless seizures, the inventory and taking of photographs generally must be conducted at
the place of seizure. The exception to this rule—where the physical inventory and taking of photographs of the
seized item may be conducted at the nearest police station or at the nearest office of the apprehending officer or
team—is when the police officers provide justification that: (1) it is not practicable to conduct the same at the
place of seizure; or (2) the items seized are threatened by immediate or extreme danger at the place of seizure.
When the police officers are able to provide a sensible reason, which is practicable, consistent, and not merely
generic or an afterthought, then the courts will recognize that the police officers indeed may conduct the
inventory at the nearest police station or the nearest office of the apprehending officer/team. Such reason must
be indicated in the affidavits of the police officers who participated in the buy-bust operation. (People vs. Casa,
G.R. No. 254208, March 13, 2023; People vs. Almayda, G.R. No. 227706, June 14, 2023; People vs. Custodio,
G.R. No. 251741, June 14, 2023)

The inventory and taking of photographs happened in the police station and not in the place of seizure.
The police officers did not provide any justifiable reason to excuse them from conducting the inventory and
taking of photographs of the seized illegal drugs in the place of seizure. Verily, this lack of explanation is fatal
to the prosecution's cause. (People vs. David, supra)

DNA EVIDENCE
Meaning of DNA

DNA is the fundamental building block of a person’s entire genetic make-up. A person’s DNA profile
can determine his identity. The DNA profile is unique for each person, except for identical twins. Everyone is
born with a distinct and genetic blueprint called DNA.

24
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shall be subjected to criminal prosecution and administrative charges.
 When a crime is committed, material is collected from the scene of the crime or from the victim's
body for the suspect's DNA. This is the evidence sample. The evidence sample is then matched with the
reference sample taken from the suspect and the victim.

DNA analysis- a procedure in which DNA extracted from a biological sample obtained from an
individual is examined. (Herrera v. Alba, G.R. No. 148220, 15 June 2000). The purpose of DNA testing is to
ascertain whether an association exists between the evidence sample and the reference sample. The samples
collected are subjected to various chemical processes to establish
their profile. The test may yield three possible results:

1. The samples are different and therefore must have originated from different sources (exclusion). This
conclusion is absolute and requires no further analysis or discussion;

2. It is not possible to be sure, based on the results of the test, whether the samples have similar DNA types
(inconclusive). This might occur for a variety of reasons including degradation, contamination, or failure of
some aspect of the protocol. Various parts of the analysis might then be repeated with the same or a different
sample, to obtain a more conclusive result; or

3. The samples are similar, and could have originated from the same source (inclusion). In
such a case, the samples are found to be similar, the analyst proceeds to determine the statistical
significance of the similarity. (People v. Vallejo, G.R. No. 144656, 09 May 2002)

Rule on DNA Evidence (A.M. No. 06-11-5-SC)

- It shall apply whenever DNA evidence is offered, used, or proposed to be offered or used as
evidence in all criminal and civil actions as well as special proceedings. (Sec. 1, A.M. No. 06-11-5-
SC)

Application for DNA Testing Order

DNA testing order may be done motu proprio or on application of any person having legal interest
in the matter in litigation. DNA testing order shall issue after due hearing and
notice to the parties upon showing that:

1. A biological sample exists that is relevant to the case;

2. The biological sample: a. was not previously subjected to the type of DNA testing now requested; or
b. was previously subjected to DNA testing, but the results may require confirmation for good reasons;
3. The DNA testing uses a scientifically valid technique;
4. The DNA testing has the scientific potential to produce new information that is relevant to the proper
resolution of the case; and
5. The existence of other factors, if any, which the court may consider as potentially affecting the accuracy of
integrity of the DNA testing.

Remember: This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of
any party, including law enforcement agencies, before a suit or proceeding is commenced. (Sec. 4, A.M. No. 06-
11-5-SC)

Post-Conviction DNA Testing

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 Post-conviction DNA testing may be available, without need of prior court order, to the
prosecution or any person convicted by final and executory judgment provided that:
1. A biological sample exists;
2. Such sample is relevant to the case; and
3. The testing would probably result in the reversal or modification of the judgment of
conviction. (Sec. 5, A.M. No. 06-11-5-SC)

Assessment of Probative Value of DNA Evidence and Admissibility (CH-CPQ)

The courts must consider the following standards, known as the Vallejo Standards, in assessing the probative
value of DNA evidence:
a. How the samples were collected;
b. How they were handled;
c. The possibility of contamination of the samples;
d. The procedure followed in analyzing the samples;
e. Whether the proper standards and procedures were followed in conducting the tests; and
f. The qualification of the analyst who conducted the tests. (People v. Vallejo, G.R. No. 144656, 09 May
2002)

Rules on evaluation of Reliability of DNA testing Methodology

In assessing the probative value of the DNA evidence presented, the court shall consider the
following:

a. The chain of custody, including how the biological samples were collected, how they were handled, and
the possibility of contamination of the samples;

b. The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages
and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the
tests;

c. The forensic DNA laboratory, including accreditation by any reputable standards- setting institution and the
qualification of the analyst who conducted the tests. If the laboratory is not accredited, the relevant
experience of the laboratory in forensic casework and credibility shall be properly established; and

c. The reliability of the testing result, as hereinafter provided. (Sec. 7 (a), A.M. No. 06-11-
5-SC)

DNA is Admissible Evidence of Paternity

- It is not enough to state that the child's DNA profile matches that of the putative father. A complete
match between the DNA profile of the child and the DNA profile of the putative father does not
necessarily establish paternity. For this reason, following the highest standard adopted in an
American jurisdiction,53 trial courts should require at least 99.9% as a minimum value of the
Probability of Paternity ("W") prior to a paternity inclusion. W is a numerical estimate for the
likelihood of paternity of a putative father compared to the probability of a random match of two
unrelated individuals. An appropriate reference population database, such as the Philippine
population database, is required to compute for W. Due to the probabilistic nature of paternity
26
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 inclusions, W will never equal to 100%. However, the accuracy of W estimates is higher when the
putative father, mother and child are subjected to DNA analysis compared to those conducted
between the putative father and child alone. (Herrera v. Alba, G.R. No. 148220, 15 June 2005)

REAL EVIDENCE DEMONSTRATIVE EVIDENCE

Tangible object that played some actual role in the Tangible evidence that merely illustrates a matter of
matter that gave rise to the litigation importance in the litigation
Intends to prove that the object is used in the Intends to show that the demonstrative object fairly
underlying event represents or illustrates a real evidence

For example, where a drawing is presented to

illustrate the relative positions of the protagonists and
witnesses to the killing, the foundation for
demonstrative evidence will normally consist of the
testimony of an eyewitness or investigator stating
that the drawing indeed fairly represents the position
of those present in the event.

View of an object or scene

When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the
court. (Sec. 1, Rule 130, ROC as amended)

Where the object in question cannot be produced in court because it is immovable or inconvenient to
remove, it is proper for the tribunal to go to the object in its place and there observe it.

An ocular inspection conducted by the judge without the presence of the parties or due notice is not
valid, as an ocular inspection is part of the trial. (Adan v. Abucejo-Luzano, et.al., A.M. No. MTJ-00-1298,03
Aug.2000)

DOCUMENTARY EVIDENCE

Documents as evidence consist of

1. Writings,
2. Recording
3. Photographs (includes Still pictures, Drawings, Stores images, X-ray filns, Motion pictures or Videos)
4. Any material containing Letters, Words, Sounds, Numbers, Figures, Symbols or their equivalent, or
other modes of written expressions, OFFERED AS PROOF OF THEIR CONTENTS. (Sec.2, Rule
130, ROC, as amended)

Remember! Being writing or material containing modes of written expression do not ipso facto make such
materials documentary evidence. For such writings or materials to be deemed documentary evidence, the
same must be offered as proof of their contents.

TAPE RECORDING (as documentary evidence)

27
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shall be subjected to criminal prosecution and administrative charges.
 - If a tape recording is played to show that particular words were uttered, it will constitute
documentary evidence.
- However, if it is simply played to show that words were uttered in a particular accent, then it is
object evidence.

PRIVATE DOCUMENT
- A private document may be offered and admitted in evidence both as documentary evidence and
as an object evidence depending on the purpose for which the document is offered.
- If offered to prove its existence, conditions, or for any purpose other than the contents of a
document, the same is considered as OBJECT EVIDENCE.
- When the private document is offered as proof of their CONTENTS, the same is considered as a
documentary evidence.
- The document may be offered for both purposes under the principle of MULTIPLE
ADMISSIBILITY

Requisites for admissibility of documentary evidence (RAIMO)

1. The document should be Relevant;

2. The document should be Authenticated and proved in the manner provided in the Rules of Court. Such
authentication must be done by a competent witness.
3. The documents should be Identified and Marked; and
4. They should be formally Offered to the court and shown to the opposing party so that the latter may
have the opportunity to object thereto.

Q: When Linda died, her common-law husband, Lito and their alleged daughter, Nes, executed an
extrajudicial partition of Linda’s estate. Thereafter, the siblings of Linda filed an action for partition of
Linda’s estate and annulment of titles and damages with the RTC. The RTC dismissed the complaint and
ruled that Nes was the illegitimate daughter of the decedent and Lito based solely on her birth certificate ,
which on closer examination, reveals that Nes was listed as “adopted” by both Linda and Lito. Is the trial
court correct?

A: NO. A record of birth is merely prima facie evidence of the facts contained therein. It is not conclusive
evidence of the truthfulness of the statements made therein by the interested parties. Nes should have adduced
evidence of her adoption, in view of the contents of her birth certificate. The mere registration of a child
in his or her birth certificate as the child of the supposed parents is not a valid adoption, does not confer
upon the child the status of an adopted child and the legal rights of such child, and even amounts to
simulation of the child's birth or falsification of his or her birth certificate, which is a public document . (Rivera
v. Heirs of Villanueva, G.R. No. 141501, 21 July 2006)

THEORY OF INDIVISIBILITY (Rule on completeness)

- When part of an act, declaration, conversation, writing, or record is given in evidence by one
party, the whole of the same subject may be inquired into by the other and when a detached act,
declaration, conversation, writing or record is necessary to its understanding may also be given in
evidence. (Sec.17, Rule 132, ROC, as amended)

ORIGINAL DOCUMENT RULE (ODR)

- The erstwhile “Best Evidence Rule’ is now known as the “Original Document Rule” in order to
avoid confusion.
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 - It is applicable to documents, or writings the parties introduce or seek to prove in court.
- As a general rule, when the SUBJECT OF THE INQUIRY is the CONTENTS of the document,
writing, recording, photograph, (DWRP) or other record, no evidence shall be admissible other
than the original document itself.

Exceptions to the ODR: (Lo-Cus-Ju-Nu-Pu-C)

1. When the original is Lost, or destroyed, or cannot be produced in court, without bad faith on the part
of the offeror;
2. When the originals is in the Custody or under the control of the adverse party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice, or the original cannot be
obtained by local Judicial processes or procedures;
3. When the original consist of Numerous accounts or other documents which cannot be examined in court
without great loss of time and the fact sought to be established is the general result of the whole;
4. When the original is a Public record in the custody of a public officer or is recorded in a public office;
and
5. When the original is not closely-related to a Controlling issue. (Sec.3, Rule 130, ROC, as amended)

Remember! Where the issue is only as to whether such a document was actually executed, or exists, or on
the circumstances relevant to or surrounding its execution or delivery (external facts), the ODR does not apply,
and TESTIMONIAL EVIDENCE is admissible.

Remember! ODR applied to documentary evidence, operates as a rule of exclusion, that is, secondary
evidence cannot be inceptively introduced as the ORIGINAL WRITING ITSELF MUST BE
PRODUCED IN COURT, except in the instances mentioned in Sec.3, Rule 130, ROC, as amended)

Q: What is the reason underlying the adoption of the “Original Document Rule”?
- There is a need to present to the court the exact words of a writing where a slight variation of
words may mean a great difference in rights. It is also for the prevention of fraud or mistake in
the proof of the contents of the writing.

Q: Police officers arrested Mr. Bogart in a buy- bust operation and confiscated from him 10 sachets of shabu
and several marked genuine peso bills worth P5,000.00 used as the buy-bust money during the buy-bust
operation. At the trial of Mr. Bogart for violation of R.A. No. 9165, the Prosecution offered in evidence, among
others, photocopies of the confiscated marked genuine peso bills. The photocopies were offered to prove
that Mr. Bogart had engaged at the time of his arrest in the illegal selling of dangerous drugs. Invoking the
Original Document Rule, Atty. A, the defense counsel, objected to the admissibility of the photocopies of the
confiscated marked genuine peso bills. Should the trial judge sustain the objection of the defense counsel?

A: NO. The Original Document Rule applies only to documentary evidence, not to object or testimonial
evidence. The presentation at the trial of the "buy-bust money" is not indispensable to the conviction of the
accused especially if the sale of dangerous drugs had been adequately proved by the testimony of the
police officers. So long as the drug actually sold by the accused had been submitted as an exhibit, the failure to
produce the marked money itself would not constitute a fatal omission.

Remember!

29
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 ODR is NOT applicable to testimonial evidence. Therefore, if the sale had been adequately proved
by the testimony of the police officers who conducted the buy-bust operation
NOTWITHSTANDING THE FACT that the marked money was not produced in court.

Q: Respondent Martinez is the registered owner of the Pingol Property. Two mortgages were constituted over
this property – the first (PNB Mortgage), and the second (DBP Mortgage). Respondent agreed to constitute
the DBP Mortgage upon Clark’s request, and that, in order to release the Pingol Property from the PNB
Mortgage, the Petitioner Spouses Tapayan and Respondent agreed to utilize a portion of the proceeds of the
DBP Loan to settle the remaining balance of the proceeds of the DBP Loan to settle the remaining Respondent’s
PNB Loan (P65,320.55). Subsequently, the parties executed a Deed of Undertaking in reference to the DBP
Mortgage that in the event of the Petitioners could not pay the loan and consequently, the property of the
Respondent is foreclosed and is not redeemed, the Petitioners shall acknowledge as his indebtedness the
amount due to the DBP upon foreclosure or the amount paid by the Respondent in paying the loan, but in
either case shall be deducted therefrom the amount of P65,320.55 plus interests and fees. The DBP Loan was
not paid when it fell due. Petitioners assert that the RTC and CA erred in ruling that the plain copy of the
Deed of Undertaking was admissible as proof of its contents, in violation of the Original Document Rule
under Rule 130 of the Rules of Court. Also, Petitioners insist that the Deed of Undertaking is a falsity and
should not be given credence. Are the Petitioners correct?

A: NO. Petitioners waived their right to object to the admission of the Deed of Undertaking on the basis of
Original Document Rule. The Original Document Rule requires that when the subject of inquiry is the
contents of the document, no evidence is admissible other than the original document itself except in the
instances mentioned in Section 3, Rule 130 of the Revised Rules of Court. Nevertheless, evidence not
objected to is deemed admitted and may be validly considered by the court in arriving at its judgment.
Courts are not precluded to accept in evidence a mere photocopy of a document when no objection was raised
when it was formally offered.

Petitioners failed to object to the admission of the plain copy of the Deed of Undertaking at the time it
was formally offered in evidence before the RTC. In fact, in their Reply, Petitioners admit that they only raised
this objection for the first time before the CA. Having failed to timely raise their objection when the Formal
Offer of Evidence was filed in the RTC, petitioners are deemed to have waived the same. Hence, they are
precluded from assailing the probative value of the plain copy of the Deed of Undertaking.

Petitioners failed to rebut the presumption of regularity ascribed to the Deed of Undertaking as a
notarized public document. The Deed of Undertaking became a public document by virtue of its
acknowledgement before a notary public. Hence, it enjoys the presumption of regularity, which can only
be overcome by clear and convincing evidence. While Petitioners vehemently deny participation in the
execution of the Deed of Undertaking, they did not present any evidence to support their claim that their
signatures thereon were forged. Hence, the presumption of regularity ascribed to the Deed of
Undertaking must be upheld. (Sps. Tapayan v. Martinez, G.R. No. 207786, 30 Jan. 2017)

Remember! Courts are not precluded to accept in evidence a mere photocopy of a document when no
objection was raised when it was formally offered. EVIDENCE NOT OBJECTED TO IS DEEMED
ADMITTED.

WHEN THE ODR IS APPLICABLE

1. The original document of the writing is the writing itself;
30
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 2. The CONTENTS OF WHICH IS THE SUBJECT OF INQUIRY; and
3. The original document must be produced if the purpose is to prove its contents.

Remember! Where the truth of the document is in issue and not the contents thereof, the ODR is not
applicable. In such case, it is the HEARSAY RULE that will apply.

SUBJECT OF INQUIRY
- When the ODR comes into operation, it is presumed that the subject of the inquiry is the contents of
the document, thus, the party offering the document must present the original thereof and NOT
any other secondary evidence.

Collateral Facts Rule

- A document or writing which is merely “collateral” to the issue involved in the case on trial need not
be proved. Where the purpose of presenting a document is not to prove its contents, but merely
to give coherence to, or to make intelligible the testimony of a witness regarding a fact
contemporaneous to the writing, the original of the document need not be presented.

Meaning of Original Document and Duplicate

An “original” of a document is either:
1. the document itself; or
2. any counterpart intended to have the same effect by a person executive or issuing it.

Remember! An original of a photograph includes the NEGATIVE or any PRINT therefrom.

ORIGINAL UNDER THE RULES ON ELECTRONIC EVIDENCE

Remember! If data is stored in a computer or similar device, any PRINTOUT or OTHER
OUTPUT READABLE BY SIGHT or other means, shown to reflect the data accurately, is an “original.”
This is considered as the “Functional Equivalent” of the original under the Rules on Electronic Evidence.

A “duplicate” is a counterpart produced by the same impression as the original, or from the same
matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-
recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the
original.

GR: A duplicate is admissible to the same extent as an original.

XPN:
1. A genuine question is raised as to the authenticity of the original; or
2. In the circumstances, it is unjust or inequitable to admit the duplicate in lieu of the original.
(Sec. 4, Rule 130, ROC, as amended)

Remember! Writings with identical contents made by printing, mimeographing, lithography, and other similar
methods executed at the same time are considered as original document. Thus, each newspaper sold in the
stand is an original. (Riano, 2019)

Production of the original may be dispensed with if, in the trial court’s discretion, the opponent (1) does
not dispute the contents of such document and (2) no other useful purpose will be served by the production.

31
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SECONDARY EVIDENCE of the contents of the writing would be received in evidence if NO
OBJECTION WAS MADE to its reception. (Estrada v. Desierto, G.R. No. 146710-15, 02 Mar. 2001)

WHEN SECONDARY EVIDENCE MAY BE OFFERED IN EVIDENCE

1. if the primary evidence of fact is not obtainable
2. When more than one original copy exists, it must appear that all of them have been lost, destroyed
or cannot be produced in court

Evidence other than the original instrument or document itself. It is the class of evidence that is relevant to
the fact in issue, it being first shown that the primary evidence of the fact is not obtainable. It performs the same
functions as that of primary evidence. (EDSA Shangri-La Hotel and Resort, Inc. v. BF Corporation, G.R. Nos.
145842 & 145873, 27 June 2008)

A party must first present to the court proof of loss or other satisfactory explanation for the non-
production of the original instrument. When more than one original copy exists, it must appear that all of
them have been lost, destroyed or cannot be produced in court before secondary evidence can be given.
(Country Bankers Insurance Corp. v. Lagman, G.R. No. 165487, 13 July 2011)

The non-production of the original document, unless it falls under any of the exceptions in Sec. 3, Rule
130, gives rise to the presumption of suppression of evidence. (De Vera, et. Al. v. Aguilar, et. al. G.R. No.
83377, 09 Feb. 1993)

*Requisites before the Contents of the Original Document may be proved by Secondary
Evidence (Laying the Basis/Laying the Predicate)
The offeror must prove the following: (E-C-U)
1. The Execution or existence of the original document;
2. The Cause of its unavailability; and
3. The Unavailability of the original is not due to bad faith on his or her part. (Sec. 5, Rule 130, ROC, as
amended)

Remember! Accordingly, the correct order of proof is as follows: existence, execution, loss, and contents.
This order may be changed, if necessary, at the sound discretion of the court. (Citybank, N.A. MasterCard v.
Teodoro, G.R. No. 150905, 23 Sept. 2003)

Due Execution and Authenticity of Private Document

It may be proved by any of the following means:
1. By anyone who saw the document executed or written;
2. By evidence of the genuineness of the signature or handwriting of the maker; or
3. By other evidence showing its due execution and authenticity. (Sec. 20, Rule 132, ROC, as
amended)

Q: Young Builders Corporation (YBC for brevity) filed before the Regional Trial Court in Cebu City (RTC)
a complaint for collection of sum of money against Benson Industries, Inc (BII).

Among the pieces of evidence presented were:

1. YBC's Accomplishment Billing dated 18 May 1998 (Exhibit "B"/Exhibit "2");
32
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shall be subjected to criminal prosecution and administrative charges.
 2. BII’s Letter dated 7 May 1998 (Exhibit "F"); and
3. The Certification dated 15 November 1997 (Exhibit "E").

With respect to YBC's Accomplishment Billing dated 18 May 1998 (Exhibit "B"/Exhibit "2"), YBC is of
the position that there is no longer the need to prove the genuineness and due execution of the
Accomplishment Billing because it is an actionable document that was attached to the complaint and not
specifically denied under oath by BII. YBC argues that BII's denial in its Answer was insufficient because it
did not specifically deny the genuineness and due execution of the Accomplishment Billing.

With respect to BII's Letter dated 7 May 1998 (Exhibit "F"), YBC claims that the CA erred in holding
inadmissible the letter dated 7 May 1998 (Ernesto Letter), allegedly written by Ernesto Dacay, Sr. (Ernesto),
who apologized to YBC for BII's inability to fulfill its payment due to financial constraints. YBC reasoned
that the CA should have given credence to the Ernesto Letter because it is an admission against BII's
interest.

With respect to The Certification dated 15 November 1997 (Exhibit "E"), YBC argues that the CA
should not have disregarded the Certification dated 15 November 1997 (Mary Certification), allegedly
issued by BII's President, Mary Dacay, affirming YBC's successful completion of the subject building even if
YBC's witness, Yu, allegedly admitted in his testimony that the subject building was not completed. Decide
whether those pieces of evidence are admissible.

A: NO. With respect to YBC's Accomplishment Billing dated 18 May 1998 (Exhibit "B"/Exhibit "2"), the
complaint filed by YBC is an action for a sum of money arising from its main contract with BII for the
construction of a building. YBC's cause of action is primarily based on BII's alleged non-payment of its
outstanding debts to YBC arising from their main contract, despite demand. If there was a written building
or construction contract that was executed between BII and YBC, then that would be the actionable document
because its terms and stipulations would spell out the rights and obligations of the parties. However, no such
contract or agreement was attached to YBC's Complaint.

With respect to BII 's Letter dated 7 May 1998 (Exhibit "F") and the Certification dated 15 November
1997 (Exhibit "E"), for the Ernesto Letter to be given credence as an admission against BII's interest, it should
first be admissible as documentary evidence. Like the Accomplishment Billing, which is also a private
document, the due execution and authenticity of the Ernesto Letter must be proved by YBC. As a
prerequisite to the admission in evidence of the Ernesto Letter, which is private document, its identity
and authenticity must be properly laid and reasonably established. This is mandated by Section 20, Rule
132 of the Rules. Here, the records of the case show that the Ernesto Letter was only entered into evidence
but was never actually identified in open court by YBC's witness, Yu.

The CA thus correctly ruled that the Ernesto Letter is inadmissible in evidence in view of YBC's
failure to authenticate the same. No probative value can be accorded to it. With respect to The Certification
dated 15 November 1997 (Exhibit "E"), The Court notes that Exhibit "E" is a mere photocopy.

Pursuant to Section 3, Rule 130 of the Rules or the Best Evidence Rule: SEC. 3. Original document
must be produced; exceptions. - When the subject of inquiry is the contents of a document, no evidence shall
be admissible other than the original document itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of
the offeror;

33
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shall be subjected to criminal prosecution and administrative charges.
(b) When the original is in the custody or under the control of the party against whom the evidence is offered,
and the latter fails to produce it after reasonable notice;
(c) When the original consists of numerous accounts or other documents which cannot be examined in court
without great loss of time and the fact sought to be established from them is only the general result of the
whole; and
(d) When the original is a public record in the custody of a public officer or is recorded in a
public office.

The records show that YBC did not invoke any of the foregoing exceptions to the Best Evidence
Rule (now the ODR) to justify the admission of a secondary evidence in lieu of the original Mary
Certification. Having been admitted in violation of the Best Evidence Rule, Exhibit "E" should have been
excluded and not accorded any probative value. (Young Builders Corp. v. Benson Industries, Inc.
G.R.No.198998, 19 June 2019)

Remember! In the problem, Accomplishment billing and the Letter of apology (for inability to fulfill
its payment due to financial constraints) are PRIVATE DOCUMENT and its identity and authenticity must
be properly laid and reasonably established. It must be IDENTIFIED IN OPEN COURT. Hence, it
become inadmissible and NO PROBATIVE VALUE can be accorded if the same is NOT
AUTHENTICATED. Also, if the plaintiff does not invoke the exception to the ODR to justify the
admission of secondary evidence, the certification must not be admitted.

Intentional Destruction of the Original Document

- Intentional destruction of the originals by a party who acted in good faith does not preclude the
introduction of secondary evidence of the contents thereof. (Regalado, 2008)

Proof of Loss or Destruction

It may be proved by:
1. Any person who knew of such fact;
2. Anyone who, in the judgment of the court, has made sufficient examination in the places where the
document or papers of similar character are usually kept by the person in whose custody the document was
and has been unable to find it; or
3. Any person who has made any other investigation which is sufficient to satisfy the court that the document
is indeed lost.

Remember!
A reasonable probability of its loss is sufficient, and this may be shown by a bona fide and diligent
search, fruitlessly made, in places where it is likely to be found. (Paylago v. Jarabe, G.R. No. L-20046, 27
Mar. 1968)

All duplicates or counterparts of a lost or destroyed document must be accounted for before using copies
thereof since all duplicates are parts of the writing to be proved. (De Vera, et al. v. Aguilar, et al., G.R. No.
83377, 09 Feb. 1993)

While a marriage certificate is considered the primary evidence of a marital union, it is not regarded as
the sole and exclusive evidence of marriage. Jurisprudence teaches that the fact of marriage may be proven
by relevant evidence other than the marriage certificate. Hence, even a person’s birth certificate may be
recognized as competent evidence of marriage between parents. (Vda. De Avenido v. Avenido, G.R. No. 173540,
22 Jan. 2014)
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shall be subjected to criminal prosecution and administrative charges.
Order of Presentation of Secondary Evidence (CRT)
Upon proof of its execution and loss of the original document, its contents may be proved by the
following, in the order stated:
1. By a copy of the original;
2. By recital of the contents of the document in some authentic document; or
3. By the testimony of witnesses (Sec. 5, Rule 130, ROC, as amended)

Definite Evidentiary Rule

- Where the law specifically provides for the class and quantum of secondary evidence to establish the
contents of a document, or bars secondary evidence of a lost document, such requirement is
controlling. E.g., evidence of a lost notarial will should consist of a testimony of at least two
credible witnesses who can clearly and distinctly establish its contents. (Sec.6, Rule 76, ROC, as
amended; Regalado, 2008)

Waiver of the Presentation or Offer of the Original

- The presentation or offer of the original may be waived upon failure to object by the party against
whom the secondary evidence is offered when the same was presented, as the secondary
evidence becomes primary evidence. But even if admitted as primary evidence, admissibility of
evidence should not be confused with its probative value. (Heirs of Teodoro De la Cruz v. CA, G.R.
No. 117384, 21 Oct. 1998)

When Original Document is in Adverse party’s Custody or Control

- If the document is in the custody or under the control of the adverse party, he or she 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. (Sec. 6, Rule 130, ROC, as amended)

Requisites for Admissibility of Secondary Evidence when the Original Document is in the Custody or Control
of the Adverse party
1. That the original exists;
2. That said document is under the custody or control of the adverse party;
3. That the proponent of secondary evidence has given the adverse party reasonable notice to
produce the original document; and
4. That the adverse party failed to produce the original document despite the reasonable notice. (Sec. 6,
Rule 130, ROC, as amended)

Remember!
No particular form of notice is required, to be given to the adverse party, as long as it fairly appraises the
other party as to what papers are desired. Even an oral demand in open court for such production at a
reasonable time thereafter will suffice. Such notice must, however, be given to the adverse party, or his
attorney, even if the document is in the actual possession of a third person. (Regalado, 2008)

The notice may be in the form of a motion for the production of the original or made in an open
court in the presence of the adverse party, or via a subpoena duces tecum, provided that the party in
custody of the original has sufficient time to produce the same. When such party has the original of the
writing and does not voluntarily offer to produce it, secondary evidence may be admitted. (Magdayao v.
People G.R. No. 152881, 17 Aug. 2004)
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shall be subjected to criminal prosecution and administrative charges.
 A justified refusal or failure of the adverse party to produce the original document will not give
rise to the presumption of suppression of evidence or create an unfavorable inference against him. It only
authorizes the presentation of secondary evidence. (Regalado, 2008)

The mere fact that the original of the writing is in the custody or control of the party against whom it is
offered does not warrant the admission of secondary evidence. The offeror must prove that he has done all in
his power to secure the best evidence by giving notice to the said party to produce the document.
(Magdayao v. People, G.R. No. 152881, 17 Aug. 2004)

Q: Paula filed a complaint against Lynette for the recovery of a sum of money based on a promissory note
executed by the latter. During the hearing, Paula testified that the original note was with Lynette and the latter
would not surrender to Paula the original note which Lynette kept in a place about one day's trip from where she
received the notice to produce the note and despite such notice to produce the same within 6 hours from
receipt of such notice, Lynette failed to do so. Paula presented a copy of the note which was executed at the
same time as the original and with identical contents. Over the objection of Lynette, can Paula present a
copy of the promissory note and have it admitted as valid evidence in her favor? Why?

A: YES. Although the failure of Lynette to produce the original of the note is excusable since she was not given
reasonable notice, a requirement under the Rules before secondary evidence may be
presented, the copy in possession of Paula is not secondary evidence but a duplicate original because it was
executed at the same time as the original and with identical contents. Hence, being an original, the rule on
secondary evidence need not be complied with. (Sec. 6, Rule 130, ROC, as amended)

When the Original consists of Numerous Accounts

- When the contents of documents, records, photographs, or numerous accounts are voluminous and
cannot be examined in court without great loss of time, and the fact sought to be established is
only the general result of the whole, the contents of such evidence may be presented in the form of
a chart, summary, or calculation. CSC (Sec. 7, Rule 130, ROC, as amended)

Remember! A witness may be allowed to offer a summary of a number of documents, or a summary of

the contents may be admitted if documents are so voluminous and intricate as to make an examination of all of
them impracticable. They may also be presented in the form of charts or calculations. (Riano, 2019)

Requisites for the Admissibility of Secondary Evidence when the Original consists of Numerous Accounts

1. The original must consist of numerous accounts or other documents;

2. They cannot be examined in court without great loss of time or inconvenience
(Riguera, 2020 citing Republic v. Mupas, G.R. No. 181892, 08 Sept. 2015);
3. The fact sought to be established from them is only the general result of the whole. (Sec. 7, Rule 130,
ROC, as amended)

Remember! The court may admit a summary of voluminous original documents, in lieu of the
original documents, if the party has shown that the underlying writings are numerous and that an in-court
examination of these documents would be inconvenient. The rule does away with item-by-item court
identification and authentication of voluminous exhibits which would only be burdensome and tedious for the
36
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shall be subjected to criminal prosecution and administrative charges.
parties and the court. However, as a condition precedent to the admission of a summary of numerous
documents, the proponent must lay a proper foundation for the admission of the original documents on
which the summary is based. The proponent must prove that the source documents being summarized are also
admissible if presented in court. In concrete terms, the source must be shown to be original, and not
secondary. (Ibid.)

Remember! Voluminous records must be made accessible to the adverse party so that the correctness of
the summary of the voluminous records may be tested on cross-examination.
(Compaña Maritima v. Allied Free Workers Union, et al., G.R. No. L-28999, 24 May 1977)

*When Original Document is a Public Record

- When the original of a 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. (Sec. 8, Rule 130,
ROC, as amended)

Proof of the Contents if the Original Document is a Public Record

The contents may be proved by:
1. A certified copy issued by the public officer in custody thereof (Sec. 8, Rule 130, ROC, as
amended); and
2. Official publication. (Herrera, 1999)

Remember! Public records are generally not to be removed from the places where they are recorded
and kept. Hence, proof of the contents of a document which forms part of a public record may be done by
secondary evidence.

When a document produced is not offered in evidence

- If the party who calls for the production of a document does not offer the same in evidence, no
unfavorable inference may be drawn from such failure. This is because a party who calls for the
production of a document is not required to offer it. (Sec.9, Rule 130, ROC, as amended)

PAROL EVIDENCE RULE

- When the terms of an agreement have been reduced into writing, it is considered as containing all
the terms agreed upon and there can be, as between the parties and their successors-in-interest,
NO OTHER EVIDENCE OF SUCH TERMS OTHER THAN THE CONTENTS OF THE
WRITTEN AGREEMENT. (Sec.10, Rule 130, ROC, as amended)
- The rule applies only to contracts. Hence, parol evidence does not apply to oral contracts. It
prevents the presentation of such parol evidence or evidence outside the agreement of the parties.
- The rationale for the adoption of the Parol Evidence Rule is that When the parties have reduced their
agreement in writing, it is presumed that they made such writing as the repository of all terms
of the agreement, and whatever is not found in the said writing must be considered as waived
and abandoned. (Tan, 2010)

Parol evidence
- any evidence aliunde (extrinsic evidence) which is intended or tends to vary or complete and
enforceable agreement embodied in a document. It may refer to testimonial, real, or documentary
evidence.

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 - It is an evidence outside of the agreement of the parties. The admissibility of subsequent
agreements be conditioned upon its being put in issue in a verified pleading. (Sec.10, Rule 130,
ROC, as amended)

Requisites for the application of the PAROL EVIDENCE RULE: (VWPT)

1. There must be a valid contract.
2. The terms of the agreement must be reduced into writing. (The term “agreement” includes wills
therefore, there can be no evidence of the terms of the will other than the contents of the will itself)
3. The dispute is between the parties or their successors-in-interest; and
4. There is dipute as to the terms of the agreement

Remember! Parties should be privies to the contract since PER does not apply and cannot be properly
invoked, by either party to the litigation against the other, where at least one party to the suit is NOT a party or
privy to the written instrument in question and does not base a claim or assert a right originating in the
instrument of the relation established thereby. Thus, if one of the parties to the case is a complete stranger to the
contract involved therein, he is not bound by this rule and can introduce extrinsic evidence against the efficacy
of the writing.

EXCEPTIONS TO THE PAROL EVIDENCE RULE

- A party may present evidence to modify, explain or add to the terms of the written agreement
(MEA) if he or she puts in issue in a verified pleading the following: (FIVE)
1. Failure of the written agreement to express the true intent of the parties thereto; *
2. Intrinsic ambiguity, mistake or imperfection in the written agreement;
3. Validity of the written agreement; or
4. Existence of other terms agreed to by the parties or their successors in interest after the execution of the
written agreement.

Remember! The mistake contemplated is one which is a mistake of fact mutual to both parties. For
example, even when a document appears to be a sale, the owner of the property may prove that the contract is
really a loan with mortgage by raising as an issue the fact that the document does not express the true
intent of the parties. Hence, parol evidence then becomes competent and admissible to prove that the
instrument was in truth and in fact given merely as a security for the repayment of a loan. (Madrigal v.
CA, G.R. No. 142944. 15 Apr. 2005)

KINDS OF AMBIGUITIES
INTRINSIC or LATENT EXTRINSIC or PATENT INTERMEDIATE
On its face, the writing appears clear Ambiguity is apparent on the Ambiguity consists in the use
and unambiguous but there are face of the writing and requires of equivocal words susceptible
collateral matters which make the that something be added to of two or more interpretation.
meaning uncertain make the meaning certain.
Curable by evidence aliunde Cannot be cured by evidence Curable by evidence aliunde
aliunde because it is only
intrinsic ambiguity not
extrinsic ambiguity which
serves as an exception to the
parol evidence rule
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 For instance, where the document For instance, where the For instance, use of terns such
refers to a particular person or thing contract refers to an as “dollars” “tons” and
but there are two or more persons unidentified grantee or does “ounces”
having the same name or two or more not particularly identify the
things to which the description in the subject matter thereof such
writing may apply. that, in either case the text does
not disclose who are or what is
referred to.

Failure of the written agreement to express true intent of the parties

- Parol evidence may be admitted to show the true consideration of the contract, or the want or
illegality thereof, or the incapacity of the parties, or the fact that the contract was fictitious or
absolutely simulated, or that there was fraud in inducement (Regalado, 2008). Despite the
meeting of the minds, the true agreement of the parties is not reflected in the instrument .
(Riano, 2019)

Remember! In an action for reformation of instrument under Art. 1359 of the Civil Code of the
Philippines, the plaintiff may introduce parol evidence to show the real intention of the parties. An action
for reformation presupposes that a meeting of the minds exists between the parties, i.e., there is a contract
between them although the instrument that evidences the contract does not reflect the true agreement of the
parties by reason of, for instance, fraud or mistake. (Riano, 2019)

Q: Paula filed a complaint against Lynette for the recovery of a sum of money based on a promissory note
executed by the latter. Paula alleged in her complaint that although the promissory note says that it is
payable within 120 days, the truth is that the note is payable immediately after 90 days but that if Paula is
willing, she may, upon request of Lynette give the latter up to 120 days to pay the note. During the hearing,
Paula testified that the truth is that the agreement between her and Lynette is for the latter to pay
immediately after 90 days’ time. Also, since the original note was with Lynette and the latter would not
surrender to Paula the original note which Lynette kept in a place about one day's trip from where she received
the notice to produce the note and in spite of such notice to produce the same within 6 hours from receipt of
such notice, Lynette failed to do so. Paula presented a copy of the note which was executed at the same time as
the original and with identical contents. Over the objection of Lynette, will Paula be allowed to testify as to
the true agreement or contents of the promissory note? Why?

A: Yes. As an exception to the parol evidence rule, a party may present evidence to modify, explain or add
to the terms of the written agreement if he puts in issue in his pleading the failure of the written
agreement to express the true intent and agreement of the parties thereto . Here, Paula has alleged in her
complaint that the promissory note does not express the true intent and agreement of the parties. The parol
evidence rule may be admitted to show the true consideration of the contract. (Sec. 10, Rule 130, ROC, as
amended)

Distinctions between the Original Document Rule and the Parol Evidence Rule

ORIGINAL DOCUMENT RULE (ODR) PAROL EVIDENCE RULE (PER)

The original document is not available or there is a Presupposes that the original document is available in
dispute as to whether said writing is original court
Prohibits the introduction of secondary evidence Prohibits the varying of the terms of a written
39
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 in lieu of the original document regardless of agreement
whether it varies the contents of the original
Applies to all kinds of writings Applies only to written agreements (contracts)
and wills
Can be invoked by any party to an action whether he Can be invoked only when the controversy is
has participated in the writing involved between the parties to the written agreement, their
privies, or any party affected thereby like a cestui
que trust

Waiver of the Parol Evidence Rule

- Failure to invoke the benefits of the rule constitutes as waiver. Inadmissible evidence may be
rendered admissible by failure to object. (Riano, 2019)

Probative Value
- Even if the parol evidence is admitted, it does not mean that the court would give probative
value to the parol evidence. Admissibility is not the equivalent of probative value or credibility.
(Riano, 2019) Considering the agreement’s mistake, imperfection or supposed failure to express the
parties’ true intent was successfully put in issue in the complaint, this case falls under the exceptions
provided by Sec. 9, Rule 130. Accordingly, the testimonial and documentary parol evidence sought
to be introduced, which attest to these supposed flaws and what they aver to have been the parties’
true intent, may be admitted and considered. However, this admission and availability for
consideration is no guarantee of how exactly the parol evidence adduced shall be appreciated by the
court. They do not guarantee the probative value, if any, that shall be attached to them . (Paras v.
Kimwa Construction and Development Corp., G.R. No. 171601, 08 Apr. 2015)

INTERPRETATION OF DOCUMENTS

How interpreted
- The language of a writing is to be interpreted according to the legal meaning it bears in the place
of its execution, unless the parties intended otherwise. (Sec.11, Rule 130, ROC, as amended)
- In the construction of an instrument, where there are several provisions or particulars, such a
construction is, if possible, to be adopted as will give effect to all. (Sec. 12, Rule 130, ROC, as
amended)

Conflict between General and Particular Provision

When a general and a particular provision are inconsistent, the following rules shall be followed:
1. The particular provision is paramount to the general;
2. A particular intent will control a general one that is inconsistent with it. (Sec. 13, Rule 130,
ROC, as amended)

Interpretation according to Circumstances

The proper construction of an instrument according to the circumstances shall be as follows:
a. The circumstances under which it was made, including the situation of the subject thereof and of the parties to
it, may be shown;
b. Such circumstances must be shown so that the judge may be placed in the position of those whose language
he or she is to interpret. (Sec.14, Rule 130, ROC, as amended)

Presumption on Terms of Writing

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The terms of a writing shall be interpreted as follows:
1. It shall be presumed to have been used in their primary and general acceptation;
2. Evidence is admissible to show that they have a local, technical, or otherwise peculiar signification; and
3. Evidence is admissible to show that it was so used and understood in the particular instance, in which case
the agreement must be construed accordingly. (Sec. 15, Rule 130, ROC, as amended)

Conflict between Written and Printed

- When an instrument consists partly of written words and partly of a printed form, and the two are
inconsistent, the written controls the printed form. (Sec. 16, Rule 130, ROC, as amended)

When the Character of Writing is Difficult to Decipher

- When the characters in which an instrument is written are difficult to be deciphered, or the language
is not understood by the court, it can be proved by evidence of:
1. Persons skilled in deciphering the characters;or
2. Those who understand the language, is admissible to declare the characters or the meaning of
the language. (Sec. 17, Rule 130, ROC, as amended)
What is the rule in case the terms of an agreement admit of two (2) interpretations?
- When the terms of an agreement have been intended in a different sense by the different parties to it, it
shall be construed as follows, to wit:
1. That sense is to prevail against either party in which he supposed the other understood it; and
2. When different constructions of a provision are otherwise equally proper, that is to be taken which is
the most favorable to the party in whose favor the provision was made.
(Sec. 18, Rule 130, ROC, as amended)

TESTIMONIAL EVIDENCE
(Rule 130)

Testimonial or oral evidence is evidence elicited from the mouth of a witness. It is sometimes called
viva voce evidence which literally means “living voice” or by word of mouth. In this kind of evidence, a human
being (witness) is called to the stand, is asked questions, and answers the question asked of him. (Riano,
2019)

QUALIFICATION OF WITNESSES
Who may be a witness
A person may be a witness if he or she:
1. Can perceive;
2. Can make known his perceptions to others (Sec.
21, Rule 130, ROC, as amended);
3. Must take either an oath or an affirmation; and
4. Must not possess any of the disqualifications imposed by law or the rules. (Riano, 2019)

Factors that do not affect the competency of a witness

1. Religious belief;
2. Political belief;
3. Interest in the outcome of the case; or
4. Conviction of a crime, unless otherwise provided by law. (Sec. 21, Rule 130, ROC, as amended)
41
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Related jurisprudence
There is no provision in the Rules disqualifying parties declared in default from taking the witness stand for
non-disqualified parties. (Cavili v.Florendo, G.R. No. 73039, 09 Oct. 1987) It is axiomatic that truth is
established not by the number of witnesses but by the quality of their testimonies. The testimony of a
single witness, if
positive and credible, is sufficient to support a conviction even in a charge of murder. The number of
witnesses does not determine the outcome of the case. A positive identification will prevail over the defense of
alibi, the latter being considered as a weaker defense since it can be easily fabricated. (People v. Gani, G.R.
No. 195523, 05 June 2013)

Remember! Drug abuse will not render a person incompetent to testify. Drug abuse becomes relevant only
if the witness was under the influence of drugs at the time he is testifying. (Riano, 2019)

Remember! The relationship of a witness with a party does not ipso facto render him a biased witness in a
criminal case and likewise in a civil case. (Northwest Airlines v. Chiong, G.R. No. 155550, 31 Jan. 2008)

Inconsistencies in the testimonies of prosecution witnesses that do not relate to the elements of the offense are
too inconsequential to warrant a reversal of the trial court’s judgment of conviction. Also, the defenses of
denial and frame-up must be substantiated with clear and convincing evidence; otherwise, same cannot
prevail over the positive and credible testimonies of the prosecution witnesses. (Aurelio v. People, G.R. No.
174980, 31 Aug. 2011)

Presumption of Competency of a Witness

GR: A person who takes the witness stand, is presumed to be qualified to testify. A party who desires to question
the competence of a witness must do so by making an objection as soon as the facts tending to show
incompetency are apparent. (Jones on Evidence, Vol. 3, Sec. 796)

A prospective witness must show that he has the following abilities:

1. To observe – The testimonial quality of perception;
2. To remember – The testimonial quality of memory;
3. To relate – The testimonial quality of narration; and
4. To recognize a duty to tell the truth – The testimonial quality of sincerity. (Herrera, 1999)

XPNs: There is prima facie evidence of incompetency in the following:

1. The fact that a person has been recently found of unsound mind by a court of competent jurisdiction; or
2. That one is an inmate of an asylum. (Torres v. Lopez, 48 Phil. 772)

Time when the Witness must Possess the Qualifications

The qualifications and disqualifications of witnesses are determined as of the time said witnesses are
produced for examination in court or at the taking of their depositions. (Regalado, 2008)

Burden of Proof
The burden is upon the party objecting to the competency of a witness to establish the ground of
incompetency.

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 COMPETENCY OF WITNESS CREDIBILITY OF WITNESS
Refers to the basic qualifications of a witness Refers to the believability of a witness
It is a matter of law or a matter of rule. It also Refers to the weight and trustworthiness of the
includes the absence of any of the disqualifications testimony
imposed upon a witness.

GR: Discrepancies between the statements of the affiant in his affidavit and those made by him or her on
the witness stand do not necessarily discredit him or her because it is a matter of judicial experience that an
affidavit, being taken ex parte, is almost always incomplete and often inaccurate.

XPN: The credibility of witnesses will be impaired

if:
1. The omission in the affidavit refers to a very important detail of the incident that one relating the
incident as an eyewitness would not be expected to fail to mention; or
2. When the narration in the sworn statement substantially contradicts the testimony in court. The point of
inquiry is whether the omission is important or substantial. (People v. Calegan, G.R. No. 93846, 30 June 1994)

Credibility of a Witness
A testimony must not only come from a credible witness, but must be credible in itself, tested by human
experience, observation, common knowledge, and accepted conduct that has evolved through the years. (People
v. Mirandilla Jr., G.R. No. 186417, 21 July 2011)

Remember! Mental unsoundness of the witness which occurred at the time of taking his testimony, affects
only his credibility. Nevertheless, as long as the witness can convey ideas by words or signs and give
sufficiently intelligent answers to questions propounded, she is a competent witness even if she is feeble-minded
or is a mental retardate or is a schizophrenic. (People v. De Jesus, G.R. No. L-39087, 27 Apr. 1984)

Findings on the Credibility of a Witness

GR: The determination of credibility of witnesses is properly within the domain of the trial court as it is in the
best position to observe their demeanor and bodily movements. The findings of the trial court with respect to
the credibility of witnesses and their testimonies are entitled to great respect, and even finality. (Llanto v.
Alzona, G.R. No. 150730, 31 Jan. 2005)

XPNs:
1. The lower court has reached conclusions that are clearly unsupported by evidence; or
2. It has overlooked some facts or circumstances of weight and influence which, if considered, would affect the
result of the case. (People v. Dalag, G.R. No. 129895, 30 Apr. 2003)

NOTE: It is a jurisprudentially conceded rule that it is against human nature for a young girl to fabricate a
story that would expose herself as well as her family to a lifetime of shame, especially when her charge
could mean the death or lifetime imprisonment of her own father. "AAA" was without doubt telling the
truth when she declared that her father raped her on three separate occasions. The attempt to discredit the
testimony of "AAA" by the accused deserves no merit. When credibility is in issue, the Court generally defers
to the findings of the trial court considering that it was in a better position to decide the question, having heard
the witnesses themselves and observed their deportment during trial. Here, there is nothing from the records that
would impel this Court to deviate from the findings and conclusions of the trial court as affirmed by the CA .
(People v. Ending G.R. No. 183827, 12 Nov. 2012)

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Disqualification of Witnesses
1. Disqualification by reason of marriage or the Marital Disqualification Rule (Sec. 23, Rule 130, ROC, as
amended);
2. Disqualification by reason of privileged communication:
a. Marital privilege;
b. Attorney-client privilege;
c. Doctor-patient privilege;
d. Minister-penitent privilege; or
e. Public officer as regards communications made in official confidence. (Sec. 24, Rule 130, ROC, as amended)

Remember! The qualifications and disqualifications of witnesses are determined as of the time they are
produced for examination in court or at the taking of the depositions. Blood relationship does not disqualify a
witness. (Bernardo, 2008)

ABSOLUTE DISQUALIFICATION RELATIVE DISQUALIFICATION

The proposed witness is prohibited to take the The proposed witness is prohibited only on certain
witness stand. matters specified under Sec. 24, Rule 130 due to
interest or relationship, or to privileges of other
parties.
Disqualification by reason of marriage. (Sec. 23, Disqualification by reason of privileged
Rule 130, ROC, as amended) communication. (Sec. 24, Rule 130, ROC, as
amended)

Conviction of a Crime as a Ground for Disqualification

GR: Conviction of a crime is not a ground for disqualification as a witness. (Sec. 21, Rule 130, ROC, as
amended)

XPNs: Otherwise provided by law, such as the following:

1. Those who have been convicted of falsification of a document, perjury or false testimony are prohibited
from being witnesses to a will (Art. 821, NCC);
2. Those who have been convicted of an offense involving moral turpitude cannot be discharged to become
a State witness (murder, rape, robbery) (Sec. 17, Rule 119, ROC, as amended); and
3. Those who fall under the disqualification provided under Secs. 23 and 24, Rule 130.

Disqualification by Reason of Marriage (Marital Disqualification/Spousal Immunity Rule)

During their marriage, the husband or the wife cannot testify against the other without the consent of the
affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by
one against the other or the latter’s direct descendants or ascendants. (Sec. 23, Rule 130, ROC, as amended)

Rationale for the Disqualification

a. There is identity of interests between husband and wife;
b. There is a consequent danger of perjury if one were to testify for or against the other;
c. The policy of the law is to guard the security and confidences of private life, even at the risk of an occasional
failure of justice, and to prevent domestic disunion and unhappiness; and
d. Where there is want of domestic tranquility, there is danger of punishing one spouse through the hostile
testimony of the other. (Alvarez v. Ramirez, G.R. No. 143439, 14 Oct.2005)

Requisites for the Applicability of Spousal Immunity

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1. That the spouse for or against whom the testimony of the other is offered is a party to the case;
2. That the spouses are legally married (valid until annulled);
3. That the testimony is offered during the existence of the marriage; and
4. That the case is not by one against the other.
(Herrera, 1999)

Exceptions to Spousal Immunity

1. Consent is given by the party-spouse;
2. In a civil case filed by one against the other;
3. In a criminal case for a crime committed by one against the other or the latter’s direct descendants or
ascendants (Sec. 23, Rule 130,ROC, as amended);
4. Where the testimony was made after the dissolution of the marriage (Riano, 2019); or
5. Where the spouse-party fails to raise the disqualification, it is deemed a waiver.

Waiver of Spousal Immunity

Objections to the competency of a husband or wife to testify in a criminal prosecution against the other may be
waived as in the case of the other witnesses generally. Thus, the accused waives his or her privilege by calling
the other spouse as a witness for him or her. It is also true that objection to the spouse's competency must be
made when he or she is first offered as witness, and that the incompetency may be waived by the failure of
the accused to make timely objection to the admission of the spouse's testimony, although knowing of such
incompetency, and the testimony admitted. (People v. Francisco, 78 Phil. 694, citing 3 Wharton's Criminal
Evidence, 11th Ed., Section 1205, pp. 2060-2061)

Extent of Prohibition
The prohibition extends not only to a testimony adverse to the spouse but also to a testimony in favor of the
spouse. It also extends to both criminal and civil cases (Riano, 2019), and not only consists of utterances but
also the production of documents.

Who can claim Spousal Immunity

The privilege to object may be claimed only by the spouse-party and not the other spouse who is offered as a
witness. (Herrera, 1999, citing Ortiz vs.Arambulo, 8 Phil. 98)

Testimony where Spouse is Accused with Others

The spouse could testify in a murder case against the other co-accused who were jointly tried with the accused-
spouse. This testimony cannot, however, be used against accused-spouse directly or through the guise of
taking judicial notice of the proceedings in the murder case without violating the marital disqualification rule, if
the testimony is properly objected. (People v. Quidato, Jr., G.R. No. 117401, 01 Oct. 1998)

Marrying the Witness

An accused can effectively “seal the lips” of a witness by marrying the witness. As long as a valid marriage is in
existence at the time of the trial, the witness- spouse cannot be compelled to testify –even though the
marriage was entered into for the express purpose of suppressing the testimony. (Herrera,1999)

Testimony by the Estranged Spouse

Q: Ivy was estranged from her husband Bob for more than a year due to Bob’s suspicion that she was having an
affair with Jeff, their neighbor. Ivy was temporarily living with her sister in Pasig City. For unknown reasons,
the house of Ivy’s sister was burned, killing the latter. Ivy survived. Ivy saw her husband in the vicinity during
45
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the incident. Later, Bob was charged with arson in an Information filed with the RTC, Pasig City. During the
trial, the prosecutor called Ivy to the witness stand and offered her testimony to prove that her husband
committed arson. Can Ivy testify over the objection of her husband on the ground of marital privilege?

A: YES. The marital disqualification rule is aimed at protecting the harmony and confidences of marital
relations. Hence, where the marital and domestic relations are so strained that there is no more harmony to be
preserved nor peace and tranquility which may be disturbed, the marital disqualification no longer applies. The
act of Bob in setting fire to the house of his sister-in-law, knowing fully well that his wife was there, is an
act totally alien to the harmony and confidences of marital relations which the disqualification primarily
seeks to protect. The criminal act complained of had the effect of directly and vitally impairing the
conjugal relation. (Alvarez v. Ramirez, G.R. No. 143439, 14 Oct. 2005)

Q: Alex and Bianca are legally married. Alex is charged in court with the crime of serious physical injuries
committed against Carding, son of Bianca and stepson of Alex. Bianca witnessed the infliction of the injuries on
Carding by Alex. The public prosecutor called Bianca to the witness stand and offered her testimony as an
eyewitness. Counsel for Alex objected on the ground of the marital disqualification rule under the Rules of
Court.

a. Is the objection valid?

b. Will your answer be the same if Bianca’s testimony is offered in a civil case for recovery of personal
property filed by Carding against Alex?
A:
a. NO. While neither the husband nor the wife may testify against each other without the consent of the affected
spouse, one exception is if the testimony of the spouse is in a criminal case for a crime committed by one
against the other or the latter’s direct descendants or ascendants. (Sec. 23, Rule 130, ROC, as amended) Here,
Carding is the direct descendant of Bianca, the wife of Alex. Hence, the testimony of Bianca falls under the
exception to the marital disqualification rule.

b. NO. The marital disqualification rule applies this time. One of the exceptions to the marital disqualification
rule is when the testimony is given in a civil case by one spouse against the other. Here, the case involves a
case by Carding for the recovery of personal property against Bianca’s spouse Alex.

TESTIMONIAL PRIVILEGE

Scope of Disqualification by reason of Privileged Communication

The disqualification by reason of privileged communication applies to both civil and criminal cases except
doctor-patient privilege, which is applicable only in civil cases. Unless waived, the disqualification under
Sec. 24, Rule 130 remains even after the various relationships therein have ceased to exist.

Who may assert the Privilege

The holder of the privilege, authorized persons and persons to whom privileged communication were made may
assert the privilege. (Herrera, 1999)

Rule on Third Parties

The communication shall remain privileged, even in the hands of a third person who may have obtained the
information, provided that the original parties to the communication took reasonable precaution to protect its
confidentiality. (Sec. 24, Rule 130, ROC, as amended)

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shall be subjected to criminal prosecution and administrative charges.
 MARITAL/SPOUSAL PRIVILEGE
(Sec. 24(A), Rule 130)

The husband or the wife, during or after the marriage, cannot be examined without the consent of the other
as to any communication received in confidence by one from the other during the marriage except in a
civil case by one against the other, or in a criminal case for a crime committed by one against the other or the
latter's direct descendants or ascendants. (Sec. 24(a), Rule 130, ROC, as amended)

Purpose of Marital Privilege

The society has a deeply rooted interest in the preservation of peace in families and in the maintenance of the
sacred institution of marriage.
(Herrera, 1999)

Requisites for the Application of Marital Privilege

1. There must be a valid marriage between the husband and wife;
2. There is a communication received in confidence by one from the other;
3. The confidential communication was received during the marriage (Riano, 2019); and
4. The spouse against whom such evidence is being offered has not given his or her consent to such testimony.
(Regalado, 2008)

Cases when Marital Privilege is NOT Applicable

A. In a civil case by one against the other;
B. In a criminal case for a crime committed by one against the other or the latter’s direct descendants or
ascendants (Sec. 24[a], Rule130) (Sec. 24(a), Rule 130, ROC, as amended); or
C. Information acquired by a spouse before the marriage even if received confidentially will not fall
squarely within the privilege (Riano, 2019)

DISQUALIFICATION BY REASON OF DISQUALIFICATION BY REASON OF

MARRIAGE (Sec.23) MARITAL PRIVILEGE (Sec.24 (A))
When can be invoked
Can be invoked only if one of the spouse is a party Can be claimed whether the other spouse is a party to
to the action the action.
Coverage
Includes the occurrences or information even prior Only to confidential information received
to the marriage DURING the marriage
Duration
Applies only if the marriage is existing at the time Can be claimed even after the marriage has been
the testimony is offered DISSOLVED
Limitations
Constitutes a total prohibition against any testimony Applies only to confidential communications
for or against the spouse of the witness. between the spouses. (Regalado, 2008)
Can no longer be invoked once the marriage is The spouse affected by the disclosure of the
dissolved. information or testimony may object even after
the dissolution of the marriage. (Riano, 2019)

*It is not affected by the death of the other spouse.

In both cases, it is essential that the marriage be valid in order to claim such privilege.

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Other Items of Communication Overheard or in Presence of Third Parties
GR: Third persons who, without the knowledge of the spouses, overheard the communication are not
disqualified to testify.

XPNs:
1. When there is collusion and voluntary disclosure to a third party, that third party becomes an agent and
cannot testify. (Francisco,1993)
2. The communication shall remain privileged, even in the hands of a third person who may have obtained the
information, provided that the original parties to the communication took reasonable precaution to
protect its confidentiality. (Sec. 24, Rule 130, ROC, as amended)

Q: In June 1998, A told B that he killed C. After a year, A married B. Upon the offer of testimony of B for the
alleged killing of C.

a. Can A validly make an objection?

b. Suppose the testimony was offered at the time the marriage between A and B was already terminated,
can A still validly object, this time on the ground of marital privilege rule under Sec. 24, Rule 130?

c. Suppose the information received by B was communicated to A during their marriage, can A validly
object to the testimony of B if it was offered after the dissolution of their marriage on the ground of
marital disqualification rule under Sec. 23 Rule 130?

A: a. YES. Irrespective of the fact that B was informed of the killing before her marriage to A, still, the
testimony was offered during their marriage, which brings it into the ambit of the marital disqualification rule
under Sec. 23, Rule 130.

b. NO. The testimony even if confidential was not communicated to B during the time of marriage, but after
the marriage.

c. NO. He can only object based on the marital disqualification rule if the testimony was offered during their
marriage and not to testimony offered after the dissolution of the marriage. The proper objection must be based
on marital privilege rule under Sec. 24, Rule 130 because such defense is applicable even after the dissolution
of marriage provided that the communication was made confidentially to B during their marriage.

Q: James, an alien, was criminally charged of promoting and facilitating child prostitution and other sexual
abuses under R.A. 7610. The principal witness against him was his Filipina wife, Conching. Earlier, she had
complained that James’ hotel was being used as a center for sex tourism and child trafficking. The defense
counsel for James objected to the testimony of Conching at the trial of the child prostitution case and the
introduction of the affidavits she executed against her husband as a violation of spousal confidentiality and
marital privilege rule. It turned out that Patring, the minor daughter of Conching by her first husband who was a
Filipino, was molested by James earlier. Thus, Conching had filed for legal separation from James since last
year. May the court admit the testimony and affidavits of the wife, Conching, against her husband, James,
in the criminal case involving child prostitution? Reason.

A: YES. If the testimony and affidavit of the wife are evidence used in the case against her husband for child
prostitution involving her daughter, the evidence are admissible. The marital privileged communication rule
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under Sec. 24 of Rule 130, as well as the marital disqualification rule under Sec. 23 of the same rule, do not
apply to and cannot be invoked in a criminal case committed by a spouse against the direct descendants of the
other. A crime committed by the husband against the daughter of his wife is considered a crime
committed against the wife and directly attacks or vitally impairs the marital relations. (Riano, 2019)

Q: John filed a petition for declaration of nullity of his marriage to Anne on the ground of psychological
incapacity under Article 36 of the Family Code. He obtained a copy of the confidential psychiatric evaluation
report on his
wife from the secretary of the psychiatrist. Can he testify on the said report without offending the rule on
privileged communication?

A: YES. Under the rule on privileged communication, the husband or the wife, during or after the
marriage, cannot be examined without the consent of the other as to any communication received in
confidence by one from the other during the marriage except in a civil case filed by one against the other,
or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or
ascendants. (Sec. 24(a), Rule 130, ROC, as amended) Here, Anne cannot prevent John from testifying against
her since the petition for declaration of nullity is a civil case filed by one spouse against the other; hence, the
rule on privileged communication between the spouses does not apply. John could testify on the confidential
psychiatric evaluation report of his wife that he obtained from the secretary of the psychiatrist, without
offending the rule on privileged communication.

ATTORNEY AND CLIENT

(Sec. 24(B), Rule 130)
Requisites for the Privilege
1. There must be a communication made by the client to the attorney, or and advice given by the attorney to his
client;
2. The communication or advice must be given in confidence; and
3. The communication or advice must be given either in the course of the professional employment or with a
view of professional employment. (Riano, 2019)

The Rules safeguarding privileged communications between attorney and client shall apply to similar
communications made to or received by the law student, acting for the legal clinic (Sec. 3, Rule 138-A, ROC, as
amended). The privilege does not extend to communications where the client’s purpose is the furtherance of a
future intended crime or fraud, or for the purpose of committing a crime or a tort, or those made in furtherance
of an illicit activity (Riano, 2019).

Purpose of Attorney-Client Privilege

To encourage full disclosure by client to her attorney of all pertinent matters, so as to further the administration
of justice. (Herrera, 1999)

Test in Applying the Attorney-Client Privilege

The test is whether the communications are made to an attorney with a view of obtaining from him
professional assistance or advice regardless of whether there is a pending or merely impending litigation or
any litigation. (Herrera, 1999)

Remember! The present rules do not require a perfected attorney-client relationship for the privilege to
exist. It is enough that the communication or advice be “with a view to” professional employment. (Riano,
2019)
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The scope of this privilege is extended not only to the Attorney but also to those persons reasonably believed
by the client to be licensed to engage in the practice of law. In addition, an attorney’s secretary, stenographer,
or clerk, or other persons assisting the attorney cannot be examined without the consent of the client and his
or her employer, concerning any fact the knowledge of which has been acquired in such capacity. (Section
24(b), Rule 130, ROC, as amended)

Confidential communication
It refers to information transmitted by voluntary act of disclosure between attorney and client in confidence and
by means which, so far as the client is aware, discloses the information to no third person other than one
reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it
was given. (Mercado v. Vitriolo, A.C. No. 5108, 26 May 2005)

Waiver of Attorney-Client Privilege

The privilege belongs to the client and if he waives the privilege, no one else, including the attorney, can invoke
it. (Riano, 2019)

Doctrine of Absolute Privilege

A communication is absolutely privileged when it is not actionable, even if the author has acted in bad faith.
This class includes allegations or statements made by parties or their counsel in pleadings or motions or during
the hearing of judicial and administrative proceedings, as well as answers given by the witness in reply to
questions propounded to them in the course of said proceedings, provided that said allegations or statements are
relevant to the issues, and the answers are responsive to the questions propounded to said witnesses. (Belen v.
People, G.R. No. 211120, 13 Feb. 2017)

The absolute privilege remains regardless of the defamatory tenor and the presence of malice, pertinent or
material to the cause in and or subject of the inquiry. (Ibid.)

Cases when the Privilege is Applicable

1. Privilege is not confined to communications regarding actual pending cases. It may also refer to anticipated
litigations;
2. Communication may be oral or written but it is deemed to extend to other forms of conduct, like physical
demonstration;
3. The statement of the client need not be made to the attorney in person. Those made to the attorney’s
secretary, clerk or stenographer for purpose of the professional relationship, or the knowledge acquired by
such employees in such capacity; and
4. In an action filed for payment of attorney’s fees or for damages against the negligence of the attorney.

Communications NOT Covered by the Privilege If the communication is:

1. Intended to be made public;
2. Intended to be communicated to others;
3. Intended for an unlawful purpose;

Remember! The privilege does not extend to communications where the client’s purpose is the furtherance of
a future intended crime or fraud, or for the purpose of committing a crime or a tort, or those made in
furtherance of an illicit activity (Riano, 2019).

4. Received from third persons not acting in behalf or as agents of the client; or
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5. Made in the presence of third parties who are strangers to the attorney-client relationship. (Regalado, 2008)

Cases when the Privilege is NOT Applicable

a. Furtherance of crime or fraud/ “Future crime- fraud exception”. If the services or advice of the lawyer
were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or
reasonably should have known to be a crime or fraud;

Remember! The rationale for this exception is that clients are not entitled to use lawyers to help them in
pursuing unlawful or fraudulent objectives. If the privilege were to cloak such activity, the result would be loss
of public confidence and corruption of profession.(Explanatory Notes, ROC, as amended)

The policy of the privilege is that of promoting the administration of justice and it would be a perversion of the
privilege to extend it to the client who seeks advice to aid him in carrying out an illegal fraudulent scheme. This
would be tantamount to participating in a conspiracy. (Explanatory Notes, ROC, as amended)

b. Claimants through some deceased client. As to communication relevant to an issue between parties who
claim through the same deceased client, regardless of whether the claims are by testate or intestate or by inter
vivos transaction;

Remember! While the attorney-client privilege survives the death of the client, there is no privilege in a will
contest or other case between parties who both claim through that very client. This is because his
communications may be essential to an accurate resolution of competing claims of succession, and the testator
would presumably favor disclosure in order to dispose of his estate accordingly. (Explanatory Notes, ROC, as
amended)

c. Breach of duty by lawyer or client/Self-defense exception. As to communication relevant to an issue of

breach of duty by the lawyer to his or her client, or by the client to his or her lawyer;

Remember! If the lawyer and client become involved in a dispute between themselves concerning the services
provided by the lawyer, the privilege does not apply to their dispute. Thus, where a client alleges breach of
duty on the part of the lawyer, i.e., professional malpractice, incompetence, or ethical violations – or where
the lawyer sues a client for his fee, either the lawyer or client may testify as to communications between
them. (Explanatory Notes, ROC, as amended)

In theory, the client has impliedly waived the privilege by making allegations of breach of duty against
the lawyer. (Ibid.)

d. Document attested by the lawyer. As to a communication relevant to an issue concerning an attested

document to which the lawyer is an attesting witness;

e. Joint clients. As to a communication relevant to a matter of common interest between two or more clients
if the communication was made by any of them to a lawyer retained or consulted in common, when
offered in action between any of the clients, unless they have expressly agreed otherwise. (Sec. 24(b), Rule 130,
ROC, as amended)

Remember! The rationale for the exception is that joint clients do not intend their communications to be
confidential from each other, and typically their communications are made in each other’s presence. Agreeing to
51
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shall be subjected to criminal prosecution and administrative charges.
joint representation means that each joint client accepts the risk that another joint client may later use what he or
she has said to the lawyer. (Explanatory Notes, ROC, as amended)

Applicability of the Rule regarding the Identity of the Client

GR: A lawyer may NOT invoke the privilege and refuse to divulge the name or identity of his client.

XPNs:
1. Where a strong possibility exists that revealing the client’s name would implicate the client in the very
activity for which he sought the lawyer’s advice;
2. Where disclosure would open the client to civil liability; or
3. Last Link Doctrine – Where the government’s lawyers have no case against an attorney’s client unless, by
revealing the client’s name, the said name would furnish the only link that would form the chain of testimony
necessary to convict an individual for a crime. (Regala v. Sandiganbayan, G.R. No. 105938, 03 Sept. 1996)

Q: On August 15, 2008, Edgardo committed estafa against Petronilo in the amount of 3 million pesos. Petronilo
brought his complaint to the National Bureau of Investigation, which found that Edgardo had visited his lawyer
twice, the first time on August 14, and the second August 16, 2008; and that both visits concerned the swindling
of Edgardo. During the trial, the RTC issued a subpoena ad testificandum to Edgardo’s lawyer for him to testify
the conversations during their first and second meetings. May the subpoena be quashed on the ground of
privileged communication? Explain fully.

A: NO. The subpoena may not be simply quashed on the allegation that the testimony to be elicited constitutes
privileged communication. It may be noted that the accused committed the crime swindling on August 15, 2008,
whereas he first visited his lawyer on August 14, 2008 or before he committed the swindling.

Clearly, the conversations the accused had with his lawyer before he committed the swindling cannot be
protected by the privilege between attorney and client because the crime had not been committed yet and it is no
part of a lawyer’s professional duty to assist or aid in the commission of a crime; hence not in the course of
professional employment.

The second visit by accused Edgardo to his lawyer on the next day (August 16, 2008) after the swindling was
committed may also suffer from the same infirmity as the conversations had during their first meeting inasmuch
as there could not be a complaint made immediately after the estafa was committed. The privilege covering a
lawyer-client relation under Sec. 24(b), Rule 130, may not be invoked, as it is not a ground for quashal of a
subpoena ad testificandum under Sec. 4, Rule 21 of the Rules of Court.

Q: A tugboat owned by SPS sank in Manila Bay while helping to tow another vessel, drowning five (5) of the
crew in the resulting shipwreck. At the maritime board inquiry, the four (4) survivors testified. SPS engaged
Atty. Ely to defend against potential claims and to sue the company owning the other vessel for damages to the
tug. Ely obtained signed statements from the survivors. He also interviewed other persons, in some instances
making memoranda. The heirs of the five (5) victims filed an action for damages against SPS. Plaintiff’s
counsel sent written interrogatories to Ely, asking whether statements of witnesses were obtained; if written,
copies were to be
furnished; if oral, the exact provisions were to be set forth in detail. Ely refused to comply, arguing that the
documents and information asked are privileged communication. Is the contention tenable? Explain.

52
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A: NO. The documents and information sought to be disclosed are not privileged. They are evidentiary
matters which will eventually be disclosed during the trials. Under Sec. 24(b) of Rule 130, the privileged
matters are:
a. The communication made by the client to the attorney; or
b. The advice given by the attorney, in the course of, or with the view to professional employment.
The information sought is neither a communication by the client to the attorney nor an advice by the attorney to
his client (Riano, 2019).

PHYSICIAN AND PATIENT

(SEC. 24(C), RULE 130)

Requisites for the Applicability of the Privilege

1. The privilege is claimed in a civil case;

NOTE: This privilege cannot be claimed in a criminal case presumably because the interest of the public in
criminal prosecution should be deemed more important than the secrecy of the communication. (Riano, 2019)
2. The person against whom the privilege is claimed is a physician, psychotherapist or a person reasonably
believed by the patient to be authorized to practice medicine or psychology; and
3. It refers to any confidential communication made for the purpose of diagnosis or treatment of the patient’s
physical, mental or emotional condition, including alcohol or drug addiction.

NOTE: This privilege also applies to persons, including members of the patient’s family, who have
participated in the diagnosis or treatment of the patient under the direction of the physician or
psychotherapist.

Psychotherapist
a. A person licensed to practice medicine engaged in the diagnosis or treatment of a mental or emotional
condition; or
b. A person licensed as a psychologist by the government while similarly engaged. (Sec 24 (c), Rule 130, ROC,
as amended)

Remember! For one to be considered a “psychotherapist,” a medical doctor need only be “licensed” to
practice medicine and need not be a psychiatrist, whereas a psychologist must be “licensed” by the
government. (Explanatory Notes, ROC, as amended)

Purpose of the Privilege

The privilege is intended to facilitate and make safe, full and confidential disclosure by patient to doctor of all
facts, circumstances, and symptoms, unrestricted by apprehension of their subsequent and enforced disclosure
and publication on the witness stand, to the end that the physician may form a correct opinion and be enabled
safely and efficaciously to treat his patient. (Herrera, 1999)

This rule is intended to encourage the patient to open up to the physician, relate to him the history of his
ailment, and give him access to his body, enabling the physician to make a correct diagnosis of that ailment and
provide the appropriate cure. Any fear that a physician could be compelled in the future to come to court and
narrate all that had transpired between him and the patient might prompt the latter to clam up, thus putting his
own health at great risk. (Chan v. Chan, G.R. No. 179786, 24 July 2013)

53
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shall be subjected to criminal prosecution and administrative charges.
Remember! This privilege does not apply to autopsy. There is no patient or treatment involved in
autopsies, the autopsy having been conducted on a dead person. (Riguera, 2020)

This privilege is not limited to testimonial evidence because to compel physician to disclose records or such
documents would be in effect to compel him to testify against the patient. (Ibid.)

Attending physician may testify as an expert provided that his opinion is strictly based on hypothetical
facts, excluding and disregarding any personal knowledge of the information on the patient acquired to the
physician-patient relationship. (Ibid.)

Information which CANNOT be Disclosed

1. Any confidential communication made for the purpose of diagnosis or treatment of the patient’s physical,
mental or emotional condition, including alcohol or drug addiction; and
2. Any information acquired by persons, including members of the patient’s family, who have
participated in the diagnosis or treatment of the patient under the direction of the physician or
psychotherapist. (Sec. 24(c), Rule 130, ROC, as amended)

Waiver of Privilege by the patient; Express or Implied

1. By a contract, as in medical or life insurance;
2. Disclosure by the patient of the information;
3. When the patient answers questions on matters which are supposedly privileged on cross- examination
(Riano, 2019); or
4. By operation of law. (Sec. 4, Rule 28, ROC, as amended)

Cases when the Privilege is NOT Applicable

a. The communication was not given in confidence;
b. The communication is irrelevant to the professional employment;
c. The communication was made for an unlawful purpose;
d. The information was intended to be made public; or
e. There was a waiver of the privilege either by provisions of contract or law (Regalado, 2008); and
f. Dentists, pharmacists or nurses are disqualified.

XPN: If the third person is acting as an agent of the doctor in a professional capacity.

Remember! It is essential that at the time the communication was made, the professional relationship is existing
when the doctor was attending to the patient for curative, preventive or palliative treatment. The treatment may
have been given at the behest of another, the patient being in extremis. (Regalado, 2008)

The rule does not require that the relationship between the physician and the patient be a result of a contractual
relationship. It could be the result of a quasi-contractual relationship as when the patient is seriously ill and the
physician treats him even if he is not in a condition to give his consent. (Riano, 2019)

PRIEST AND PENITENT

(Sec. 24(D), Rule 130)

A minister, priest or person reasonably believed to be so cannot, without the consent of the affected person,
be examined as to any confession made toor any advice given by him or her in his or her professional character

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in the course of discipline enjoined by the church to which the minister or priest belongs. (Sec. 24(d), Rule 130,
ROC, as amended)

Purpose of the Priest-Penitent Privilege

Allow and encourage individuals to fulfill their religious, emotional or other needs by protecting confidential
disclosures to religious practitioners. (Peralta, Jr., 2005)

Requisites for the Applicability of the Priest- Penitent Privilege

1. The communication, confession, or advice must have been made to the priest in his or her professional
character in the course of discipline enjoined by the church to which the minister or priest belongs. (Sec. 24(d),
Rule 130,
ROC, as amended); and
2. Communications made must be confidential and must be penitential in character, e.g., under the seal of the
confessional. (Regalado, 2008)

Remember! The privilege also extends not only to a confession made by the penitent but also to any advice
given by the minister or priest.

Extent of the Priest-Penitent privilege

The communication must be made pursuant to confession of sins. Where the penitent discussed business
arrangements with the priest, the privilege does not apply. (Riano, 2019)

A third person who overheard the confession is not disqualified. (Herrera, 1999)

Who holds the Privilege

The person making the confession holds the privilege. The priest or minister hearing the confession in his
professional capacity is prohibited from making a disclosure of the confession without the consent.

Q: For over a year, Nenita had been estranged from her husband Walter because of the latter’s suspicion
that she was having an affair with Vladimir, a barangay kagawad who lived in nearby Mandaluyong. Nenita
lived in the meantime with her sister in Makati. One day, the house of Nenita’s sister inexplicably burned
almost to the ground. Nenita and her sister were caught inside the house but Nenita survived as she fled in
time, while her sister was caught inside when the house collapsed. As she was running away from the burning
house, Nenita was surprised to see her husband also running away from the scene. Dr. Carlos, Walter’s
psychiatrist who lived near the burned house and whom Walter medically consulted after the fire, also
saw Walter in the vicinity some minutes before the fire. Coincidentally, Fr. Platino, the parish priest who
regularly hears Walter’s confession and who heard it after the fire, also encountered him not too far away
from the burned house. Walter was charged with arson and at his trial, the prosecution moved to
introduce the testimonies of Nenita, the doctor and the priest confessor, who all saw Walter at the vicinity
of the fire at about the time of the fire.

a. May the testimony of Nenita be allowed over the objection of Walter?

b. May the testimony of Dr. Carlos, Walter’s psychiatrist, be allowed over Walter’s objection?
c. May the testimony of Fr. Platino, the priest confessor, be allowed over Walter’s objection?
A:
a. NO. Nenita may not be allowed to testify against Walter. Under the Marital Disqualification Rule, neither
the husband nor the wife, during their marriage, may testify for or against the other without the consent
of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime
55
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shall be subjected to criminal prosecution and administrative charges.
committed by one against the other or the latter's direct descendants or ascendants. (Sec. 23, Rule 130, ROC,
as amended)

The foregoing exceptions cannot apply since it only extends to a criminal case of one spouse against the other
or the latter’s direct ascendants or descendants. Clearly, Nenita is not the offended party and her sister is not
her direct ascendant or descendant for her to fall within the exception.

b. YES. The testimony of Walter’s psychiatrist may be allowed. The privileged communication contemplated
under Sec. 24(c) Rule applies only in civil cases and not in a criminal case for arson. Besides, the subject of
the testimony of Dr. Carlos was not in connection with the advice or treatment given by him to Walter, or any
information he acquired in attending to Walter in a professional capacity. The testimony of Dr. Carlos is limited
only to what he perceived at the vicinity of the fire and at about the time of the fire.

c. YES. The priest can testify over the objection of Walter. The disqualification requires that the same were
made pursuant to a religious duty enjoined in the course of discipline of the sect or denomination to
which they belong and must be confidential and penitential in character, e.g., under the seal of confession.
(Sec. 24(d), Rule 130, ROC, as amended)

Here, the testimony of Fr. Platino was not previously subject of a confession of Walter or an advice
given by him to Walter in his professional character. The testimony was merely limited to what Fr. Platino
perceived “at the vicinity of the fire and at about the time of the fire.”

PUBLIC OFFICERS
(Sec. 24(E), Rule 130)

A public officer cannot be examined during or after his or her tenure as to communications made to him
or her in official confidence, when the court finds that the public interest would suffer by the disclosure.

Rationale- General grounds of public policy. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as maybe provided by law. (Sec. 7, Article III, 1987
Constitution)

Requisites for its Application

1. The holder of the privilege is the government, acting through a public officer;
2. The communication was given to the public officer in official confidence;
3. The communication was given during or after his or her tenure; and
4. The public interest would suffer by the disclosure of the communication. (Herrera, 1999)

Cases when the Privilege is Inapplicable and Disclosure will be Compelled

1. The disclosure is useful to vindicate the innocence of an accused person;
2. To lessen risk of false testimony;
3. The disclosure is essential to the proper disposition of the case; or
4. The benefit to be gained by a correct disposition of the litigation was greater than any injury which could
inure to the relation by a disclosure of information. (Francisco, 1996)

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shall be subjected to criminal prosecution and administrative charges.
Remember! To invoke this rule, it must first be established that public interest would suffer by the
disclosure. In the case of closed bank, any disclosure of tapes and transcripts would not pose danger or peril to
the economy. (Riguera, 2020)

The disclosure or non-disclosure is not dependent on the will of the officer but on the determination by a
competent court. (Riano, 2019)

Executive Privilege
The power of the President and other high-ranking executive officers to withhold information from the
public, the courts, and the Congress.

This privilege, based on the constitutional doctrine of separation of powers, exempts the executive from
disclosure requirements applicable to the ordinary citizen or organization where such exemption is necessary to
the discharge of highly important executive responsibilities involved in maintaining governmental operations,
and extends not only to military and diplomatic secrets but also to documents integral to an appropriate exercise
of the executive’s domestic decisional and policy making functions, that is, those documents reflecting the frank
expression necessary in intra-governmental advisory and deliberative communications. (Senate v. Ermita, G.R.
No. 169777, 20 Apr. 2006)

There are types of information which the government may withhold from the public like secrets involving
military, diplomatic, and national security matters, and information on investigations of crimes by law
enforcement agencies before the prosecution of the accused were exempted from the right to information.
(Chavez v. Public Estates Authority. G.R. No. 133250, 09 July 2002)

It is a privilege which protects the confidentiality of conversations that take place in the President’s
performance of his official duties. The privilege may be invoked not only by the President, but also by his
close advisors under the “operational proximity test.” (Neri v. Senate Committee on Accountability of Public
Officers and Investigations, G.R. No. 180643, 25 Mar. 2008)

Requisites of Presidential Communications Privilege

1. The protected communication must relate to a “quintessential and non-delegable presidential power;”
2. The communication must be authored or “solicited and received” by a close advisor of the president or the
president himself. The judicial test is that an advisor must be in operational proximity with the president;
3. The presidential communication privilege remains a qualified privilege that may be overcome by a showing
of adequate need, such that the information sought “likely contains important evidence” and by the
unavailability of the information elsewhere by an appropriate investigating authority. (Neri v. Senate Committee
on Accountability of Public Officers and Investigations, G.R. No. 180643, 25 Mar. 2008)

Q: The Senate sought to question Mr. Romulo Neri, a member of President Arroyo’s cabinet, on whether
President Arroyo followed up the National Broadband Network project financed by Chinese loans, whether she
directed him to prioritize it, and whether she directed him to approve it. Mr. Neri invoked executive privilege
stating that his conversations with the president dealt with delicate and sensitive national security and
diplomatic matters relating to the impact of scandal on high government officials and the possible loss of
confidence by foreign investors and lenders. May Mr. Neri’s invocation of executive privilege be upheld?

A: YES. The Supreme Court upheld Mr. Neri’s invocation of executive privilege (more specifically the
presidential communications privilege) stating that the disclosure might impair our diplomatic as well as

57
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economic relations with China (Neri v. Senate Committee on Accountability of Public Officers and
Investigations, G.R. No. 180643, 25 Mar. 2008)

Deliberative Process Privilege

The privilege protects from disclosure advisory opinions, recommendations, and deliberations comprising part
of a process by which governmental decisions and polices are formulated. (Riguera, 2020)

Written advice from variety of individuals is an important element of the government’s decision- making
process and the interchange of advice could be stifled if courts forced the government to disclose those
recommendations; thus, the privilege is intended to prevent the “chilling” of deliberative communications.
(Ibid.)

The deliberative process privilege applies if its purpose is served, that is, to protect the frank exchange of
ideas and opinions critical to the government’s decision-making process where disclosure would discourage
discussion in the future.

PARENTAL AND FILIAL PRIVILEGE RULE

(Sec. 25, Rule 130)
No person shall be compelled to testify against his or her parents, other direct ascendants, children or other
direct descendants, except when such testimony is indispensable in a crime against that person or by one
parent against the other.

Remember! It is a privilege which consist of exempting the witness, having attended the court where his
testimony is desired, from disclosing a certain part of his knowledge. (Fit for a Queen Agency, Inc. v. Ramirez,
SP-06510, 15 Nov. 1977)

Two Types of Privileges under Sec. 25, Rule 130

1. Parental privilege rule - a parent cannot be compelled to testify against his child or other direct descendants.

Remember! A person, however, may testify against his parents or children voluntarily but if he refuses to do so,
the rule protects him from any compulsion. Said rule applies to both criminal and civil cases since the rule
makes no distinction. (Sec. 25, Rule 130, ROC, as amended)

2. Filial privilege rule – a child may not be compelled to testify against his parents, or other direct
descendants.

Remember! The filial privilege rule applies only to “direct” ascendants and descendants, a family tie
connected by a common ancestry – a stepdaughter has no common ancestry by her stepmother. (Lee v. Court
of Appeals, G.R. No. 177891, 13 July 2010)

Remember! An adopted child is covered by the rule.

Criminal Cases
GR: No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents.

XPNs: The descendant may be compelled to give his testimony in the following instances:
1. When such testimony is indispensable in a crime committed against said descendant; or
2. In a crime committed by one parent against the other. (Art. 215, Family Code)
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shall be subjected to criminal prosecution and administrative charges.
Q: A was convicted of raping his own daughter. His son, an 8-year-old boy, testified against him. Can he object
to the testimony on the ground of filial privilege and invoke the incompetence of the child?

A: NO. The competency of his son is not affected by the filial privilege rule. The Rule is not strictly speaking a
disqualification but refers to a privilege not to testify, which can be invoked and waived like other privileges.
The son was not compelled to testify against his father but chose to waive that filial privilege when he
voluntarily testified against the accused. (People v. Invencion, G.R. No. 131636, 05 Mar. 2003)

Q: A, married to B, killed the latter. One of the witnesses was C, the mother of B, who was being compelled to
testify against A. Can A object on the ground of parental privilege?

A: NO. C is not a direct ascendant of A but that of B, being the mother of the latter. Thus, the privilege does not
belong to A.

Remember! The Child Witness Rule provides that every child is presumed qualified to be a witness. (Sec.
6,
A.M. NO. 004-07-SC or the Rule on Examination of a Child Witness, 21 Nov. 2000)

Q: C is the child of the spouses H and W. H sued his wife W for judicial declaration of nullity of marriage under
Article 36 of the Family Code. In the trial, the following testified over the objection of W: C, H and D, a doctor
of medicine who used to treat W. Rule on W's objections which are the following:
a. H cannot testify against her because of the rule on marital privilege;
b. C cannot testify against her because of the doctrine on parental privilege; and
c. D cannot testify against her because of the doctrine of privileged communication between patient and
physician.

A:
a. The rule of marital privilege cannot be invoked in the annulment case under Article 36 of the Family Code
because it is a civil case filed by one against the other. (Sec. 23, Rule 130, ROC, as amended)

b. W cannot invoke the privilege which belongs to the child. C may testify if he wants to although he may not
be compelled to do so. (Sec. 25, Rule 130, ROC, as amended)

c. D, as a doctor who used to treat W, is disqualified to testify against W over her objection as to any advice or
treatment given by him or any information which he may have acquired in his professional capacity. (Sec.
24(c), Rule 130, ROC, as amended)

TRADE SECRETS
(Sec. 26, Rule 130)
Trade Secret
A secret formula or process not patented but known only to certain individuals using it in compounding some
article of trade having a commercial value. Trade secrets are privilege matters whose disclosure is proscribed
and penalized under the Securities and Exchange Commission and the Revised Penal Code.

A person cannot be compelled to testify about any trade secret unless the non-disclosure will conceal fraud or
otherwise work injustice. When disclosure is directed, the court shall take such protective measure as the

59
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interest of the owner of the trade secret and of the parties and the furtherance of justice may require. (Sec. 26,
Rule 130, ROC, as amended)

Trade secrets should receive greater protection from discovery because they derive economic value from being
generally unknown and not readily ascertainable by the public. (Air Philippines Corporation v. Pennswell, Inc.,
G.R. No. 1723835, 13 Dec. 2007)

Exception to the Application of the Privilege

The privilege is not absolute; the court may compel disclosure where it is indispensable for doing justice. (Ibid.)

Other Privileged Matters (Gu-E-V-Ta-Ba-C-A-I-M)

1. The Guardian ad litem shall not testify in any proceeding concerning any information, statement, or opinion
received from the child in the course of serving as guardian ad litem, unless the court finds it necessary to
promote the best interests of the child; (Sec. 5(e), Rule on Examination of a Child Witness)

2. Editorial Privilege – Editors may not be compelled to disclose the source of published news; (R.A. No. 53,
as amended by R.A. No. 1477)

3. Voters may not be compelled to disclose for whom they voted;

4. Information contained in Tax census returns (Ibid.);

5. Bank deposits, except in certain cases provided for by law; (Sec. 2, R.A. No. 1405)

6. Information and statements made at Conciliation proceedings; (Art. 233, Labor Code)

7. Institutions covered by the law and its officers and employees who communicate a suspicious
transaction to the Anti-Money Laundering Council; (Sec. 6 of R.A. No. 9194 amending Sec. 9 of R.A. No.
9160) and

8. Informer’s Privilege - The Prosecutor may not be compelled to present an informer to protect his identity
and when his testimony would be merely corroborative and cumulative. (Herrera, 1999)

Remember! Human Security Act provides that the name and identity of the informant of on a suspect in the
crime of terrorism shall be considered confidential and shall not be unnecessarily revealed until after the
proceedings against the suspect shall have been terminated.

9. Media Practitioner’s Privilege

GR: Without prejudice to his liability under the civil and criminal law, any publisher, owner, duly registered or
accredited journalist, writer, reporter, contributor, opinion writer, editor, columnist manager, media practitioner
involved in the writing, editing, production, and dissemination of news for mass circulation of any print,
broadcast, wire service organization, or electronic mass media cannot be compelled to reveal the source of
any news item, report or information appearing or being reported or disseminated through said media which
was related in confidence to the abovementioned media practitioners.

XPN: Revelation can be compelled if the court or the Congress or any of its committees finds that such
revelation is demanded by the security of the State.
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shall be subjected to criminal prosecution and administrative charges.
Remember! On the ground of public policy, the rules providing for the production and inspection of books and
papers do not authorize the production or inspection of privileged matter; that is, books and papers which,
because of their confidential and privileged character, could not be received in evidence. Such a condition is in
addition to the requisite that the items be specifically described and must constitute or contain evidence material
to any matter involved in the action and which are in the party’s possession, custody or control. (Air Philippines
Corporation v. Pennswell Inc., G.R. No. 172835, 13 Dec. 2007)

3. ADMISSIONS AND CONFESSIONS

Admission
Any statement of fact made by a party against his interest or unfavorable to the conclusion for which he
contend.

CLASSIFICATIONS OF ADMISSIONS
Express It is a positive statement or act. Those made in
definite, certain and unequivocal language.
Implied It is one in which may be inferred from the
declarations or acts of a person. Therefore, an
admission may be implied from conduct, statement
of silence of a party.
Judicial When made in the course of a judicial proceeding.
Extrajudicial When made out of court or even in a proceeding
other than the one under consideration.
Adoptive It is a party’s reaction to a statement or action by
another person when it is reasonable to treat the
party’s reaction as an admission of something stated
or implied by the other person. A third person’s
statement becomes the admission of the party
embracing or espousing it. Adoptive admission may
occur when a party:

a. Expressly agrees to or concurs in an oral

statement made by another.
b. Hears a statement and later on essentially
repeats it.
c. Utters an acceptance or builds upon the
assertion of another;
d. Replies by way of rebuttal to some specific
points raised by another but ignores further
points which he or she has heard the other
make; or
e. Reads and signs a written statement made
by another (Republic vs. Kendrick
Development Corp. G.R.No. 149576, 08 Aug.
2006)

REQUISITES FOR ADMISSION TO BE ADMISSIBLE

1. They must involve matters of fact and not of law;
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 2. They must be categorical and definite;
3. They must be knowingly and voluntarily made; and
4. They must be adverse to the admitter’s interests, otherwise it would be self-serving and inadmissible.
(Regalado, 2008)

ADMISSION CONFESSION
A statement of fact which does not involve an A statement of fact which involves an
acknowledgement of guilt or liability. acknowledgment of guilt or liability.
May be made by third persons and in certain cases, Can be made only by the party himself and, in some
are admissible against a party. instances, are admissible against a co-accused.
Applies to both criminal and civil cases. Applies only to criminal cases.
May be express or tacit. Must be express. (Regalado, 2008)

Remember! An admission, in general sense, includes confessions, the former being a broader term because,
accordingly, a confession is also an “admission by the accused of the fact charged against him or of some
fact essential to the charge.” (4 Wigmore, Sec. 1050)

A confession is a specific type of admission which refers only to an acknowledgement of guilt. (Riano,
2019)

Admission by a Party
The act, declaration or omission of a party as to a relevant fact may be given in evidence against him or her.
(Sec. 27, Rule 130, ROC, as amended)

Requisites for the admissibility of an admission

1. The act, declaration or omission must have been made by a party or by one by whom he is legally bound;
2. The admission must be as to a relevant fact; and
3. The admission may only be given in evidence against him. (Herrera, 1999)

Self-Serving Declaration
It is one which has been made extra-judicially by the party to favor his interest. It is not admissible in evidence
because they are inherently untrustworthy and would open the door to fraud and fabrication of testimony.
(Lichauco v. Atlantic Gulf and Pacific Co. of Manila, 84 Phil. 330)

Remember! Self-serving evidence are inadmissible because the adverse party is not given the opportunity
for cross-examination, and their admission would encourage fabrication of testimony. (Hernandez v. CA,
G.R. No. 104874, 14 Dec.1993)

Statements in affidavits are not sufficient to prove the existence of agricultural tenancy. It is self- serving. It
will not suffice to prove consent of the owner. Independent evidence is necessary.
(Rodriguez v. Salvador, G.R. No. 171972, 08 June 2011)

An admission against interest is the best evidence which affords the greatest certainty of the facts in
dispute since no man would declare anything against himself unless such declaration is true. Thus, an
admission against interest binds the person who makes the same, and absent any showing that this was
made thru palpable mistake, no amount of rationalization can offset it. (Stanley Fine Furnitures, Elena and
Carlos Wang v. Gallano, G.R. No. 190486, 26 Nov. 2014)
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Q: After working as a laborer for 43 years, A resigned from Rufina Patis Factory. Thereafter, he availed of his
pension from the SSS and executed an affidavit stating that he was never re-employed. However, when he filed
a claim for retirement benefits from his employer before the NLRC, he alleged that he continued working for
Rufina Patis Factory for 4 more years. Can Rufina Patis Factory use A’s affidavit executed before the SSS
as an admission against his interest?

A: YES. The document is the best evidence which affords greater certainty of the facts in dispute. While the
affidavit may have facilitated the release of the retirement benefits from SSS, hence, beneficial to him at that
time, it may still be considered as an admission against interest since the disserving quality of the admission
is judged as of the time it is used or offered in evidence and not when such admission was made. Thus, it
matters not that the admission was self-serving at the time it was made, so long as it is against A’s present claim.
(Rufina Patis Factory v. Alusitain, G.R. No. 146202, 14 July 2004)

RES INTER ALIOS ACTA RULE

Res inter alios acta alteri nocere non debet

This principle literally means “things done between strangers ought not to injure those who are not parties
to them.” (Dynamic Signmaker Outdoor Advertising Services, Inc. v. Potongan, G.R. No. 156589, 27 June
2005)

Reason for the Rule on Res inter alios acta

On the principle of good faith and mutual convenience, a man’s own acts are binding upon himself and are
evidence against him. So are his conduct and declarations. It would not only be rightly inconvenient but also
manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought
not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him.
(People v. Guittap, G.R. No. 144621, 09 May 2003)

Two branches of Res inter alios acta Rule

1. Admission by third party. The rights of a party cannot be prejudiced by an act, declaration, or omission of
another (Sec. 29, Rule 130, ROC, as amended); and

2. 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. (Sec. 35, Rule 130, ROC, as amended)

Remember! The rule has reference to extrajudicial declarations. Hence, statements made in open court by a
witness implicating persons aside from him are admissible as declarations from one who has personal
knowledge of the facts testified to. (Riano, 2019)

The testimony of the accused against his co-accused in open court is considered as admissible testimony and not
subject of the res inter alios acta rule since such testimony is subject to cross examination.

Q: Mau sued Kenstar Travel Corporation for breach of contract on the ground that when she went on a
European tour, there was no European tour manager, the Filipino guide was a first timer, and the hotels where
they were billeted were not first class. Kenstar contended that the tour was satisfactory because out of 18
participants, only Mau actually complained. Can the fact that the other participants in the tour filed no case
against Kenstar be used as evidence to show that B has no cause of action?

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A: No. Sec. 28, Rule 130 of the Rules of Court provides that the rights of a party cannot be prejudiced by an act,
declaration or omission of another. The failure of the other participants to file and action should not prejudice
Mau. (Geraldez v. Court of Appeals, G.R. No. 108253, 23 Feb. 1994)

Admission by a Third Party

The rights of a party cannot be prejudiced by an act, declaration, or omission of another. (Sec. 28, Rule
130, ROC, as amended)

GR: The act, declaration or omission made out of court of a party as to a relevant fact may be given in evidence
against him but may not be given in evidence against another person.

XPN: The act or omission of one party made out of court may be used as evidence against another when its
admission is made by:
a. A partner, during the existence of the partnership (Sec. 30, Rule 130, ROC, as amended);
b. An agent authorized by the party to make a statement concerning the subject or within the scope of his
or her authority, during the existence of the agency (Ibid.);
c. A joint owner;
d. A joint debtor;
e. A person jointly interested with the party;
f. A conspirator; or
g. A privy or successor in interest (Suarez and De la Banda, 2006)

Q: Francisco was charged with violating PD No. 1612 or the Anti Fencing Decree. Among the evidence
submitted against him was the testimony of Jovita in a previous criminal case wherein the accused therein,
Pacita, was convicted of theft and where she stated that Francisco bought stolen jewelries from her. Can the
admission in the previous case be used against Francisco?

A: No. Francisco was not a party to the previous criminal case where Pacita was the accused. The acts or
declarations of a person are not admissible against a third party. Only parties to a case are bound by a
judgment of the trial court. (Francisco v.People, G.R. No. 146584, 12 July 2004) Without presenting Jovita to
testify on her admission during the previous criminal case, even if made in a previous judicial proceeding, it
remains an extrajudicial admission without any effect, insofar as the present action against Francisco is
concerned.

Admission by a Co-Partner or Agent

The act or declaration of a partner or agent authorized by the party to make a statement concerning the subject,
or within the scope of his or her authority and during the existence of the partnership or agency, may be
given in evidence against such party after the partnership or agency is shown by evidence other than such
act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person
jointly interested with the party. (Sec. 30, Rule 130, ROC, as amended)

Requisites for an Admission of a Partner to bind his Co-Partners or for an Agent to bind his Principal
1. The act or declaration of a partner or agent of the party must be within the scope of his authority;
2. The admission was made during the existence of the partnership or agency; and
3. The existence of the partnership or agency is proven by independent evidence other than such act or
declaration.

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The Articles of Incorporation or a Special Power of Attorney may be presented for such purpose. (Suarez
and De la Banda, 2000)

Remember! Any declaration made before the partnership or agency existed, or those made after, are not
admissible against the other partners or principal but remains admissible as against the partner or agent making
the declaration. (Riano, 2019)

The same rule applies to an act or declaration of a joint owner, joint debtor or other person jointly interested
with the party. (Sec. 29, Rule 130, ROC, as amended)

Dissolved Partnership
GR: Admissions made after a partnership has been dissolved do not fall within the exception because such
are made when the partnership ceased to exist.

XPN: Where the admissions are made in connection with the winding up of the partnership affairs, said
admissions are still admissible as the partner is acting as an agent of his co-partner in said winding up.
(Regalado, 2008)

Q: The Republic of the Philippines filed a forfeiture case against the heirs of the late former President Marcos.
In one of her manifestations before the Sandiganbayan, Imelda Marcos admitted that she owned 90% of the
Swiss bank deposits and only 10% belongs to the estate of the late President Marcos. The other heirs also made
separate admissions in their pleadings. What is the value of these admissions?

A: The individual and separate admissions of each respondent bind all of them pursuant to Sec. 30, Rule
130 of the Rules of Court. The declaration of a party is admissible against a party whenever a “privity of
estate” exists between the declarant and the party. It generally denotes a succession of rights. Without doubt,
privity exists
among the respondents in this case. Where several co-parties exist, who are jointly interested in the subject
matter of the controversy, the admission of one is competent against all. (Republic v. Sandiganbayan, G.R. No.
152154, 15 July 2003)

Admission by a Conspirator
The act or declaration of a conspirator in furtherance of the conspiracy and during its existence may be given in
evidence against the co- conspirator after the conspiracy is shown by evidence other than such act or
declaration. (Sec. 31, Rule 130, ROC, as amended)

Conspiracy
A conspiracy exists when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it.

Remember! Once conspiracy is proven, the act of one is the act of all. The statement therefore of one may be
admitted against the other co-conspirators as an exception to the rule of res inter alios acta. (Riano, 2019)

Requisites of an Admission by a Conspirator

a. The declaration or act be made or done during the existence of the conspiracy;
b. The declaration or act must be in furtherance of the purpose and object of the conspiracy; and
c. The conspiracy must be shown by evidence other than the declaration or act (evidence aliunde). (Sec. 31,
Rule 130, ROC, as amended)
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Remember! This rule applies only to extrajudicial acts or admission and not to testimony at trial where the party
adversely affected has the opportunity to cross-examine the witness. (People v. Baharan, G.R. No. L-188314, 10
Jan. 2011)

Q: A was convicted of robbery with homicide. Among the evidence used to convict her was the extrajudicial
confession of her co-accused, an alleged co-conspirator, which confession was made with the assistance of
counsel. Can such admission be used against A?

A: NO. In order for such admission to be admissible in evidence, there must be independent evidence aside
from the extrajudicial confession to prove conspiracy. There being no independent evidence to prove
conspiracy, A’s culpability was not sufficiently established. (People v. Guittap, G.R. No. 144621, 09 May 2003)

Extrajudicial Admissions made After the Conspiracy had Terminated

GR: Extrajudicial admissions made by a conspirator after the conspiracy had terminated and even before
trial are not admissible against the co- conspirator.

XPNs:
1. If made in the presence of the co-conspirator who expressly or impliedly agreed therein;
2. Where the facts in said admission are confirmed in the individual extrajudicial confessions made by the co-
conspirator after their apprehension;
3. As a circumstance to determine the credibility of the witness; or
4. As circumstantial evidence to show the probability of the co-conspirator’s participation in the offense.
(Regalado, 2008)

When extrajudicial admission becomes a judicial admission

While it is true that statements made by a conspirator against a co-conspirator are admissible only when
made during the existence of the conspiracy, if the declarant repeats the statement in court, his extrajudicial
confession becomes a judicial admission, making the testimony admissible as to both conspirators. (People v.
Baharan, G.R. No. 188314, 10 Jan. 2011)

Admission by Privies
Where one derives title to property from another, the latter’s act, declaration, or omission of the latter, while
holding the title, in relation to the property, is evidence against the former if done while the latter was holding
the title. (Sec. 32, Rule 130, ROC, as amended)

Privies
Persons who are partakers or have an interest in any action or thing, or any relation to another.
(Black’s Law Dictionary, 5th Ed.)

The declarations of a person are admissible against a party whenever a "privity of estate" exists between the
declarant and the party, the term "privity of estate" generally denoting a succession in rights. Consequently, an
admission of one in privity with a party to the record is competent. Without doubt, privity exists among the
respondents in this case. And where several co- parties to the record are jointly interested in the subject matter
of the controversy, the admission of one is competent against all. (Republic v. Sandiganbayan, Ferdinand E.
Marcos, and Imelda Romualdez Marcos, G.R. No. 152154, 15 July 2003)

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Requisites of an Admission by Privies
1. There must be an act, declaration, or omission by a predecessor-in-interest;
2. The act, declaration, or omission of the predecessor must have occurred while he was holding (not
after) the title to the property; and
3. The act, declaration, or omission must be in relation to the property. (Sec. 32, Rule 130, ROC, as
amended; Riano 2016)

Q: Del Monte Development Corporation filed a case to be adjudged owner of a piece of land against Ababa
claiming that it acquired a lot from Lucero in 1964. As a defense, Ababa presented a document executed by
Lucero in 1968 to settle the controversy. Can the document bind Del Monte as successor in interest of
Lucero?

A: No. The admission of a former owner of a property must have been made while he was the owner
thereof in order that such admission may be binding upon the present owner. Hence, Lucero’s act of
executing the 1968 document have no binding effect on Del Monte, the ownership of the land having passed to
it in 1964. (Gevero v. IAC, G.R. No. 77029, 30 Aug. 1990)

Admission by Silence
There is admission by silence when a party does or says nothing when he hears or observes an act or
declaration made in his presence when such act or declaration is such as naturally to call for action or
comment if not true, and when proper and possible for him or her to do so. Such may be given in evidence
against him or her. (Sec. 33, Rule 130, ROC, as amended)

Requisites of an Admission by Silence

1. The party heard and understood the statement;
2. He or she was at a liberty to make a denial;
3. The statement was about a matter affecting his or her rights or in which he or she was interested and which
naturally calls for a response;
4. The facts were within his or her knowledge; and
5. The fact admitted from his or her silence is material to the issue. (Riano, 2019)

NOTE: The silence of a person under investigation for the commission of an offense should not be
construed as an admission by silence because a person has the right to remain silent and to be informed of
that right. (Sec. 12, Art. III, 1987 Constitution; Riano, 2019)

POLICE INVESTIGATOR (under custodial investigation)

vs. OWNER OF A CARNAPPED VEHICLE (VICTIM)

However, if it is not the police investigators who confronted the accused but the owner of a carnapped
vehicle, the silence of one after being implicated by the other accused serves as an admission by silence as
he did not refute the statements of his co-accused despite having heard of them. (People v. Garcia, Jr., G.R.
No. 138470, 01 Apr. 2003)

Q: Aljur was brought to the police station for investigation on the alleged rape of Alyssa. While in the police
station, Alyssa pointed to Aljur and said, “He’s the one who raped me.” Aljur remained silent. May Aljur’s
silence be offered in evidence as an implied admission of guilt?

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A: No. The rule on admission by silence does not apply since Aljur had a right to remain silent while under
custodial investigation. (Riguera, 2020)

Principle of Adoptive Admission

It is a party’s reaction to a statement or action by another person when it is reasonable to treat the party’s
reaction as an admission of something stated or implied by the other person. The basis for the admissibility of
admissions made vicariously is that arising from the ratification or adoption by the party of the statements
which the other person had made. (Estrada v. Desierto, G.R. Nos. 146710-15, 3 Apr. 2001)

Illustration: The alleged admissions made by President Estrada when his options had dwindled when,
according to the Angara Diary, the Armed Forces withdrew its support from him as President and Commander-
in-Chief. Thus, Angara had to allegedly ask Senate President Pimentel to advise Estrada to consider the option
of “dignified exit or resignation.” Estrada did not object to the suggested option but simply said he could never
leave the country. According to the court, his silence on this and other related suggestions can be taken as
adoptive admissions by him. (Ibid.)

CONFESSIONS
The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily
included therein, may be given in evidence against him or her. (Sec. 34, Rule 130, ROC, as amended)

Requisites for the admissibility of a confession

1. It must involve an express and categorical acknowledgement of guilt (U.S. v. Corrales, 28 Phil. 362);
2. Facts admitted must be constitutive of a criminal offense (U.S. v. Flores, 26 Phil. 262);
3. It must have been given voluntarily (People v. Nishishima, 57 Phil. 26);
4. It must have been intelligently made (Bilaan v. Cusi, G.R. No. L-18179, 29 June 1962), the accused realizing
the importance or legal significance of his act (U.S. v. Agatea, 40 Phil. 596);
5. There must have been no violation of Sec. 12, Art. III, 1987 Constitution (Regalado, 2008); and

CONFESSION TO A POLICE OFFICER vs.

Confession to a person, who is not a police officer

Remember! A confession to a person, who is not a police officer, is admissible in evidence. The declaration
acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in
evidence against the declarant. Such admissions are not covered by Secs. 12 (1) and (3), Article III, 1987
Constitution, because they were not extracted while he or she was under custodial investigation. (People v.
Davao, et al., G.R. No. 174660, 30 May 2011)

6. It must be in writing and signed by such person in the presence of his counsel or in the latter’s absence,
upon a valid waiver and in the presence of any of the parents, elder brothers and sisters, his spouse, the
municipal mayor, or priest or minister of the gospel as chosen by him or her. (Sec. 2(d), R.A. No. 7438)

CLASSIFICATION OF CONFESSIONS
Judicial Confession Extrajudicial confession
One made by the accused before an open court in One made in any other place or occasion other than
which the case is pending and in the course of legal the court where the case is pending and cannot
proceedings therein and, by itself, can sustain sustain a conviction unless corroborated by evidence
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 conviction and is admissible against one’s co- of corpus delicti. It is generally binding only upon the
accused. It is governed by Secs. 1, 3 & 4 of Rule 116. confessant
and is not admissible against his co-accused. It is
governed by Sec. 33 of Rule 130. (Regalado, 2008)

Remember! If the accused admits having

committed the act in question but alleges a
justification therefor, such as absence of criminal
intent, the same is merely an admission.
(Ibid.)

Admissibility of Extrajudicial Confessions

GR: An extrajudicial confession is not admissible against the confessor’s co-accused. Said confession is
hearsay evidence and violative of the res inter alios acta rule.

XPN: It may be admitted in evidence against his co- accused in the following cases:
1. In case of implied acquiescence of the co-accused to the extrajudicial confession;
2. In case of interlocking confessions;
3. Where the accused admitted the facts stated by the confessant after being apprised of such confession;
4. If they are charged as co-conspirators of the crime which was confessed by one of the accused and said
confession is used only as corroborating evidence;
5. Where the confession is used as circumstantial evidence to show the probability of participation by the co-
conspirator;
6. When the confessant testified for his co- defendant; and
7. Where the co-conspirator’s extrajudicial confession is corroborated by other evidence on record. (Regalado,
2008)

Q: The mutilated cadaver of a woman was discovered near a creek. Due to witnesses attesting that he was the
last person seen with the woman when she was still alive, Carlito was arrested within 5 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 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 his
dumping of the body near the creek. He was genuinely remorseful. During the trial, the State presented the
investigator to testify the oral confession of Carlito. Is the oral confession admissible as evidence of guilt?

A: NO. The oral confession is not admissible as evidence of guilt. The confession is in the nature of an
extrajudicial confession before an investigator while under custodial investigation. Hence, the statutory
provisions under R.A. No. 7438 (Sec. 2(d)) will have to be complied with.

Under said law, any extrajudicial confession made by a person arrested, detained, or under custodial
investigation shall be in writing and signed by such person in the presence of his counsel. An oral
confession does not comply with the mandatory provisions of the law. Under R.A. No. 7438, the confession is
inadmissible in evidence in any proceeding. (Sec. 2(d), R.A. No. 7438)

Requirements for an admission of guilt of an accused during a custodial investigation to be admitted in

evidence (VAWE)
1. The admission must be voluntary (Sec. 12(1), 1987 Constitution);
2. The admission must be in writing (R.A. No. 7438);
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3. The admission must be made with the assistance of competent, independent counsel (Sec. 12, 1987
Constitution);
4. The admission must be express (People v. Prinsipe, G.R. No. 135862, 02 May 2002); and
5. In case the accused waives his rights to silence and to counsel, such waiver must be in writing, executed
with the assistance of competent, independent counsel. (R.A. No. 7438)

Doctrine of Interlocking Confessions

It states that extrajudicial confessions independently made without collusion which are identical with each other
in their essential details and corroborated by other evidence against the persons implicated, are admissible to
show the probability of the latter’s actual participation in the commission of the crime. (People v. Mulit, G.R.
No. 181043, 08 Oct. 2008)

Q: May an extrajudicial confession made by an accused be sufficient ground for conviction

A: No, unless it is corroborated by evidence of corpus delicti. (Riguera, 2020)

4. PREVIOUS CONDUCT AS EVIDENCE

Similar Acts as Evidence

GR: Evidence that one did or did not do a certain thing at one time is not admissible to prove that he
or she did or did not do the same or similar thing at another time. (Sec. 35, Rule 130, ROC, as amended)
This is also referred to as the “Propensity Rule.”

Remember! This provision constitutes as the second branch of the res inter alios acta rule as previously
mentioned.

XPNs: Evidence of similar or previous acts may be received to prove the following: PIKICHUSS

1. Plan
2. Intent (specific intent)
3. Knowledge
4. Identity
5. Custom
6. Habit
7. Usage
8. Scheme
9. System
10. And the like

Purpose of the Rule

Evidence of similar acts or occurrences compels the defendant to meet allegations that are not mentioned in the
complaint, confuses him in his defense, raises a variety of relevant issues, and diverts the attention of the court
from the issues immediately before it. Hence, the evidentiary rule guards the practical inconvenience of trying
collateral issues and protracting the trial, and prevents surprise or other mischief prejudicial to litigants. (Cruz v.
CA, G.R. No. 126713, 27 July 1998)

Q: The defendants argued that Xavierville Estate Inc. (XEI) had allowed them to pay the balance of the
purchase of a subdivision lot in 120 monthly installments. The defendants introduced three contracts to sell in
which XEI granted two lot buyers a 120-month term of payment and a third one a 180-month term. May these
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three contracts to sell prove a habit or custom on the part of XEI to grant 120-month terms of payments
to it buyers?

A: NO. Under Sec. 35, Rule 130, 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 a similar thing at another time; but it may be
received to prove usage, habit or custom. Courts must contend with the caveat that before they admit
evidence of usage, habit or pattern or conduct, the offering party must establish the degree of specificity and
frequency of uniform response that ensures more than a mere tendency to act in a given manner but rather
conduct that is semi-automatic in nature. In determining whether the examples are numerous enough and
sufficiently regular, the key criteria are adequacy of sampling and uniformity of response.

Here, the defendants did not introduce evidence that XEI and all the lot buyers in the subdivision had executed
contracts of sale containing uniform terms and conditions. Moreover, even in the 3 contracts adduced by the
defendants, there was no uniformity as two referred to 120-month terms while the third mentioned a 180-month
term. (Boston Bank v. Manalo, G.R. No. 158149, 09 Feb. 2006).

ADMISSIBILITY OF OFFERS OF COMPROMISE

CIVIL CASE CRIMINAL CASE
GR: It is NOT an admission of any liability and is GR: It may be received in evidence as an implied
NOT admissible against the offeror. admission of guilt.

Neither is evidence of conduct nor statements made XPNs:

in compromise negotiations admissible. 1. In quasi-offenses where there is NO
criminal intent (negligence), such as
XPN: Evidence otherwise discoverable or offered for reckless imprudence;
another purpose, such as proving bias or prejudice of 2. In criminal cases allowed by law to be
a witness, negativing a contention of undue delay, or compromised such as:
proving an effort to obstruct a criminal investigation a. Sec. 7 (c), National Internal Revenue
or prosecution. (Sec. 28, Rule 130, ROC, as Code- The CIR has the power ro
amended) compromise minor criminal violations as
may be determined by the Secretary of
Finance;
b. Sec. 408, Local Government Code-
allowed in minor offenses whose penalties
do not exceed 1 year;
c. Art. 266-C, Revised Penal Code- In cases
of marital rape, where subsequent
forgiveness by the wife extinguishes the
criminal action or penalty. (Suarez and De
la Banda 2006)

Remember! No compromise is valid in the following cases:

1. Civil status of persons;
2. Validity of a marriage or legal separation;
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3. Any ground for legal separation;
4. Future support;
5. Jurisdiction of courts;
6. Future legitime;
7. Habeas corpus; and
8. Election cases (Herrera, 1999)

Q: What is the underlying reason for the adoption of the rule against the admission of an offer of compromise in
civil cases?

A: It is for the reason that parties are encouraged to enter into compromises. Courts should endeavor to
persuade the litigants in a civil case to agree upon some fair compromise. (Art. 2029, NCC) During pre-
trial, courts should direct the parties to consider the possibility of an amicable settlement. (Sec. 2(a), Rule
18, ROC, as amended)

Q: Berting was accused of having raped Lisa. Rule on the admissibility of an offer of Berting to marry Lisa.

A: Berting’s offer to marry Lisa is admissible in evidence as an implied admission of guilt because rape
cases are not allowed to be compromised. (Sec. 28, Rule 130 ROC, as amended)

Q: Lloydie, while driving his car, ran over Bea. Lloydie visited Bea at the hospital and offered to pay for her
hospitalization expenses. After the filing of the criminal case against Lloydie for serious physical injuries
through reckless imprudence, Lloydie’s insurance carrier offered to pay for the injuries and damages suffered by
Bea. The offer was rejected because Bea considered the amount offered as inadequate.
a. Is the offer by Lloydie to pay the hospitalization expenses of Bea admissible in evidence?
b. Is the offer by Lloydie’s insurance carrier to pay for the injuries and damages of Bea admissible in evidence?
A:
a. No. It is not admissible in evidence to prove his guilt in both the civil and criminal cases. (Sec. 28, Rule
130, ROC, as amended)

b. NO. It is irrelevant. The obligation of the insurance company is based on the contract of insurance and is
not admissible in evidence against the accused because it was not offered by the accused but by the insurance
company which is not his agent.

ADMISSIBILITY OF PLEA OR OFFER

OFFER OF PLEA ADMISSIBILITY
Plea of guilty later withdrawn by the accused Not admissible in evidence against the accused who
made the plea.
Offer by the accused to plead guilty to a lesser Not admissible in evidence against the accused who
offense but unaccepted by prosecution made the offer.
Offer to pay or payment of medical, hospital or other Not admissible in evidence as proof of civil or
expenses occasioned by injury (Good Samaritan criminal liability for the injury.
Rule)
Statement made in the course of plea bargaining with Not admissible against the accused who made the
the prosecution, which does not result in a plea of statement (Sec.28, Rule 130, roc, as amended)
guilty later withdrawn.

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Good Samaritan Rule
An offer to pay or the payment of medical, hospital and other expenses occasioned by an injury is not
admissible in evidence as proof of civil and criminal liability for the injury.

RATIO: Humanitarian acts or charitable responses should be encouraged and rewarded instead of being
discouraged or penalized. (Regalado, 2008)

Unaccepted offer
An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal
property is, if rejected without valid cause, equivalent to the actual production and tender of the money,
instrument, or property. (Sec. 36, Rule 130, ROC, as amended)

5. TESTIMONIAL KNOWLEDGE

A witness can testify only to those facts which he or she knows of his or her personal knowledge; that is,
which are derived from his or her own perception. (Sec. 23, Rule 130, ROC)

The personal knowledge of a witness is a substantive prerequisite for accepting testimonial evidence that
establishes the truth of a disputed fact. A witness bereft of personal knowledge of the disputed fact cannot be
called upon for that purpose because her testimony derives its value not from the credit accorded to her as a
witness presently testifying but from the veracity and competency of the extra judicial source of her
information. (People of the Philippines v. Estibal, G.R. No. 208749, 26 Nov. 2014)

6. HEARSAY AND EXCEPTIONS TO THE HEARSAY RULE

Meaning of Hearsay
Hearsay is a statement other than one made by the declarant while testifying at a trial or hearing, offered
to prove the truth of the facts asserted therein. (Sec. 37, Rule 130, ROC, as amended)

The hearsay statement may be:

1. An oral or written assertion; or
2. A non-verbal conduct of a person if it is intended by him or her as an assertion. (ibid)

Q: In a police lineup, victim from behind a one- way mirror points to the accused as the one who assaulted him.
The victim dies before trial. During the trial, the police officer conducting the lineup is asked who the victim
pointed to as the culprit. May the defense object and if so, on what grounds?

A: YES, the defense may object on the ground of hearsay. An out-of-court statement includes not only oral or
written assertions but also non-verbal conduct intended as an assertion. The victim’s act of pointing out a
person in the lineup is a nonverbal assertion. It is as if the victim was saying, “He’s the one who assaulted
me.” The proponent may try to the identification under the excited-utterance exception. (Riguera, 2020)

When a Statement is NOT Considered as Hearsay

A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-
examination concerning the statement, and the statement is:

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a. Prior inconsistent statement under oath - Inconsistent with the declarant’s testimony, and was given under
oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition;

b. Prior consistent statement - Consistent with the declarant’s testimony and is offered to rebut an express or
implied charge against the declarant of recent fabrication or improper influence or motive; or

c. Prior statement of identification - One of identification of a person made after perceiving him or her. (Par.
2, Sec. 37, Rule 130, ROC, as amended)

Remember! Newspaper clippings are hearsay and of no evidentiary value at all whether objected to or not,
unless offered for a purpose other than proving the truth of the matter asserted. (Feria v. CA, G.R. No.
122954, 15 Feb. 2000)

Medical certificates cannot be admitted in the absence of the testimony of the physician who examined
the complaint for alleged torture wounds.

Affidavits are inadmissible unless the affiants themselves are placed in the witness stand to testify
therefrom.

Q: UCPB General Insurance Co., Inc. issued Comprehensive Car Insurance Policy to Rommel Lojo. On
December 09, 2005, at around 3:30 p.m., the insured vehicle was bumped at the rear portion by Pascual Liner,
Inc.'s bus driven by Leopoldo Cadavido. As a result of the impact, the insured vehicle was pushed forward,
causing it to hit another vehicle, an aluminum van driven by Nilo Nuñez. The vehicular accident was
investigated by the Traffic Management and Security Department of the PNCC Skyway Corporation, for which
Solomon Tatlonghari prepared a Traffic Accident Sketch. Thereafter, the matter was endorsed to the PNP, for
which PO3 Joselito Quila prepared a Traffic Accident Report. Lojo filed a claim with UCPB under his insurance
policy, which was approved by UCPB. Thereafter, UCPB filed a Complaint for sum of money for P350,000.00
before the RTC, which was subsequently transferred to MeTC, against Pascual Liner and Cadavido alleging that
as a result of Lojo's receipt of the insurance indemnity it paid arising from the damage caused on the insured
vehicle, it was subrogated to the rights of Lojo. Pascual Liner filed its Answer (with Affirmative Defense),
denying allegations. It asserted that the Traffic Accident Report and the Traffic Accident Sketch were not
categorical in proving its negligence or that of its employee; rather, these only proved that the driver of the
insured vehicle was at fault. Is Hearsay Rule under the Amended Rules of Evidence applicable?

A: NO. At the time when UCPB filed its complaint before the MeTC on December 21, 2009, the prevailing
Rules on Evidence was the Rules adopted on March 14, 1989, under which Sec. 36, Rule 130, governed the
appreciation of hearsay evidence. The principle of retroactivity of procedural rules cannot be applied. The
Traffic Accident Report serves as the anchor by which liability for negligence is claimed by UCPB. To adopt the
amended Rules would affect the manner by which the Traffic Accident Report was appreciated, which could be
used as basis for
re-examination to determine its admissibility in evidence. This will result into a violation of due process, which
will ultimately cause injustice on the part of the respondent who relied on the Rules then existing. As such, we
shall continue to be guided by the superseded provisions of the Rules of Court. (UCPB General Insurance, Co.
v Pascual Liner, Inc., G.R. 242328, 26 Apr. 2021)

Statements made through an Interpreter

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GR: Statements made through an interpreter are considered hearsay if a witness is offered to testify to the
statements of another person, spoken in a language not understood by him, but translated for him by an
interpreter, such witness is not qualified, because he does not speak from personal knowledge. All that he can
know as to the testimony is from the interpretation thereof which is in fact given by another person.

XPNs: In cases where the interpreter had been selected:

1. By common consent of the parties endeavoring to converse; or
2. By a party against whom the statements of the interpreter where offered in evidence (Principal-Agent Rule).

HEARSAY

Hearsay is a statement other than one made by the declarant while testifying at a trial or hearing,
offered to prove the truth of the facts asserted therein. (Sec. 37, Rule 130 of the Rules of Court, as amended)

Self-serving statements are those made by a party out of court advocating his own interest. They do not
include a party’s testimony in court as a witness. The proper ground for objecting to self-serving statements is
not that they are self-serving but that they are hearsay. Statements made by a party in court favoring his interest
may not be objected to as self-serving since the party may be cross-examined. (People v. Omictin, 26 July
2010).

TRADITIONAL DEFINITION OF HEARSAY: An out-of-court statement made by a person who is not

presented as a witness and which statement is offered to prove the truth of the fact asserted therein. (DST
Movers Corp. v. People’s Gen. Ins. Corp., 13 January 2016, Leonen, J.)

DETECTING HEARSAY AND DETERMINING ITS ADMISSIBILITY (DAPE)

1. The first step is to look out for the DECLARANT. A declarant is a person who makes or writes an out-
of- court statement. Easier to spot is oral hearsay where a witness will testify about what another person
(the declarant) said out-of-court. But one should also be on the look out for written hearsay. If the
witness will present or identify a document or letter written not by the witness himself but by another
person who is not presented in court, the hearsay rule is implicated. The third class of possible hearsay is
reputation. Reputation is hearsay since it is the distilled statements of a community or group of persons
who themselves are not presented in court.

RATIONALE FOR THE HEARSAY RULE:

1. The lack of opportunity to cross-examine the out-of-court declarant.
2. The declarant’s statement is not under oath.
3. No opportunity to observe the demeanor of the declarant.

2. The next step is to determine if the statement is a direct or vicarious ADMISSION. Admissions are
excluded from the hearsay rule. In an oral defamation case, prosecution witness’s testimony that he
heard the accused call the offended party a prostitute is excluded from hearsay since it is an admission.

3. The third step is to determine the PURPOSE for which the declaration or statement is offered. If it is
offered not to prove the truth of a matter asserted therein, then the declaration or statement is not hearsay
and is admissible.

INDEPEDENTLY RELEVANT STATEMENT

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 -An out-of-court statement which is relevant not for the truth of a matter asserted therein but for
something else, e.g., state of mind, intent, belief, mere fact of utterance, and legal effect. (SIBUL)

1. For instance, a declaration by the deceased testator that there were Martians in his backyard is
admissible in the probate of the testator’s will in order to prove that the testator was not of sound and disposing
mind.

2. In an action for recovery of land in which there were improvements constructed by the defendant’s
deceased father, the father’s declaration that he owned the land is relevant not for its truth but to show that the
father was a builder in good faith.

3. In an action to recover necessary and useful expenses, statement by decedent that he was the owner of
the land admissible to prove his belief, that he was the owner and thus a possessor in good faith.

4. Survey evidence admissible to show state of mind, e.g., confusion in infringement cases.

Rule of thumb to determine if a statement is independently relevant: Would the statement have probative value
even if it is false? If the answer is yes, the statement is an Independently Relevant Statement.

4. The last step is to determine if the hearsay statement or declaration falls within any of the
EXCEPTIONS to the hearsay rule, in which case the statement or declaration although hearsay is
admissible.

For instance, the newspaper clipping of a report is hearsay since the reporter who wrote the news
account was not presented in court and hence could not be cross-examined by the accused as to the
accuracy or veracity of his report.

The psychologist was not able to personally examine the respondent and the psychological report
was based only on the narration of the petitioner. Hence the psychologist’s report and testimony were
hearsay. (Paz v. Paz, 18 February 2010)

However, the psychologist’s testimony and report are not hearsay if these were based not solely on the
psychologist’s interview of the petitioner but of other persons, such as the respondent’s own son and his
siblings. (Camacho-Reyes v. Reyes, 18 August 2010; Tani-De la Fuente v. De la Fuente, 8 March 2017 ).

Even hearsay evidence can be admitted if it satisfies the basic minimum test of relevance and
consistency with other evidence. The courts should exercise flexibility in the consideration of evidence,
including hearsay evidence, in extrajudicial killings and enforced disappearance cases. (Razon v. Tagitis, 3
December 2009, Brion, J.)

NBI agent’s testimony that Zaldy had identified in a police line-up the accused as the perpetrators of the
robbery and killing was held unreliable where Zaldy did not testify in court and the NBI agent did not state
when the line-up took place; how this line-up had been conducted; who were the persons in the line-up with the
accused (if there were indeed other persons included in the line-up); and whether the line-up was confined to
persons of the same height and built as the accused. (People v Cachuela, 10 June 2013). It should also be noted
that the NBI agent’s testimony on Zaldy’s out-of-court identification is hearsay.

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 Whistleblowers’ accounts even if hearsay is admissible in preliminary investigation to establish probable
cause. (Reyes v. Sandiganbayan, 19 August 2020, Reyes, J.)

The affiant’s failure to identify their affidavits in the investigation before the OMB and the grave nature
of the charges (grave misconduct) led the SC to treat their affidavits as inadmissible under the hearsay rule.
(Miro v. Vda de Erederos, 20 Nov 2013).

Medical certificate that plaintiff suffered whiplash is hearsay where the physician who executed it not
presented in court. (Dela Llana v Biong, 4 Dec 2013).

The hearsay statement may be:

1. An oral or written assertion; or
2. A non-verbal conduct of a person if it is intended by him or her as an assertion.

Illustrative examples:

1. For instance, in a police line-up, victim from behind a one-way mirror points to the accused as the one who
assaulted him. The victim dies before trial. During the trial, the police officer conducting the line up is asked
who the victim pointed to as the culprit. May the defense object and if so, on what grounds?

Yes, the defense may object on the ground of hearsay. An out-of-court statement includes not only
oral or written assertions but also non-verbal conduct intended as an assertion. It is as if the victim was
saying, “He’s the one who assaulted me.

2. The prosecution presented A to testify that B confided to him that he saw C killed D. A’s testimony is offered
to prove that C killed D.
The testimony of A is objectionable for being hearsay. A is testifying on the statement made by B in
order to prove the matters asserted by the latter’s statement. The subject of testimony is oral statement.

3. The prosecution presented A to testify that B handed to him his written statement detailing how C killed D.
A’s testimony is offered to prove that C killed D.
The testimony of A is objectionable for being hearsay. A is testifying on the written statement made
by B to prove the matters asserted by the latter’s written statement.

4. The prosecution presented A to testify that he saw B pointing to C when asked who killed D. The testimony
of A is offered to prove that C killed D. It is objectionable for being hearsay. The subject of testimony here
is non-verbal act.

When a statement is not considered as hearsay

A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-
examination concerning the statement, and the statement is:
Prior INCONSISTENT STATEMENT under oath- inconsistent with the declarant’s testimony and was given
under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition;

For instance, A testified that he saw C killed D. He was being cross-examined by the counsel for the
defense on the statement he executed before the police which is inconsistent with his present testimony. It is not
hearsay. A is cross-examined on his inconsistent statement. The purpose is to impeach his testimony.
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Prior CONSISTENT STATEMENT- consistent with the declarant’s testimony and is offered to rebut an
express or implied charge against the declarant of recent fabrication or improper influence or motive; or

For instance, A testified that he saw C killed D. He was cross-examined by the counsel for the defense
on the statement he executed before the police which is inconsistent with his present testimony. During re-
direct, the prosecution confronted A with an affidavit he executed before the NBI which is consistent with his
testimony. It is not hearsay. A is cross-examined on his consistent statement to rebut the implied charge of
fabrication.

Prior statement of IDENTIFICATION- one of identification of a person made after perceiving him or her.

For instance, A testified that he saw C killed D. He was being cross-examined on how he was able to
recognize C as the one who killed D. It is not hearsay. A is cross-examined on how he able to identify D.

REMEMBER!

Time and again, newspaper clippings are hearsay and of no evidentiary value at all whether objected to or not,
unless offered for a purpose other than proving the truth of the matter asserted. (Feria v. CA, GR No. 122954,
15 Feb. 2000)

Medical certificates cannot be admitted in the absence of the testimony of the physician who examined
the complaint for alleged torture wounds.

Affidavits are inadmissible unless the affiants themselves are placed in the witness stand to testify
therefrom.

Reasons for exclusion of hearsay evidence

1. The lack of opportunity on the party against which it is offered to cross-examine the declarant, that is the
person who made the statement
2. The statement or declaration under oath.
3. The court does not have the opportunity to observe the demeanor of the declarant.

In criminal cases, its admission would be a violation of the constitutional provision that the accused
shall enjoy the right of being confronted with the witness testifying against him and to cross-examine them.
Moreover, the court is without opportunity to test the credibility of hearsay statements by observing the
demeanor of the person who made them. (People vs. Pruna, GR No. 138471, 10 October 2002)

Evidence not based on personal knowledge (Lack of first-hand knowledge rule)

Consists of testimony that is not based on personal knowledge of the person testifying. The witness
purports to give the facts directly upon his own credit though it may appear later that he was speaking only
on the faith of report from others. The witness purports to give the facts directly upon his own credit (though it
may appear later that he was speaking only on the faith of report from others. (Rules Committee Notes, citing
McCormick)

A witness can testify only to those facts which he or she knows of his or her personal knowledge; that is,
which are derived from his or her own perceptions (Sec. 22, Rule 130, Rules of Court, as amended)
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 For instance, A is sued for damages for injuries suffered by B, the plaintiff in a vehicular accident. C, a
witness in court, testifies that A told her that heard D, a witness to the accident, gives an excited account of the
accident immediately after its occurrence. Is C’s testimony admissible against A over proper and timely
objection? Why? No, because the testimony is hearsay. In her testimony, C purports to give an account of
what A told her. In effect, she is testifying to nothing more than her statement, and not the truth of the
fact asserted therein.

EXCEPTIONS to the hearsay rule

The exceptions are hearsay but they are deemed admissible by reason of relevancy, necessity and
trustworthiness.

1. DYING DECLARATION- the declaration of a dying person, made under the consciousness of an
impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of
the cause and surrounding circumstances of such death.

Requisites for the admissibility of a dying declaration:

The declaration concerns the cause and the surrounding circumstances of the declarant’s death;
It is made when death appears to be imminent and the declarant is under consciousness of an impending
death;
The declarant would have been competent to testify had he or she survived; and
The dying declaration is offered in a case in which the subject inquiry involves the declarant’s death.

It is of no moment that the victim died seven days from the stabbing incident and after receiving
adequate care and treatment, because the apparent proximate cause of his death was a consequence of the
stabbing. (People of the Philippines vs. Rarugal, GR. No. 188603, 16 January 2013)

REMEMBER! Where the elements of both a dying declaration and a statement as part of the res gestate are
present, the statement may be admitted as a dying declaration and at the same time as part of the res gestae. This
is pursuant to the rule on MULTIPLE ADMISSIBILITY. (People vs. Gado, GR No. 129556, 11 November
1998)

Test to determine the Application of the Rule on Dying Declaration

Whether the declarant has abandoned all hopes of survival and looked on death as certainly impending. (Ibid.)

Time Interval
GR: The intervening time from the making of a dying declaration up to the time of death is immaterial in its
admissibility, as long as it was made under the consciousness of impending death.

XPNs:
1. If there is retraction made by the declarant before he died; or
2. His declaration is ambiguous as to whether he believed that his death was imminent when he made such
declaration. (Regalado, 2008)

It is of no moment that the victim died seven days from the stabbing incident and after receiving adequate care
and treatment, because the apparent proximate cause of his death was a consequence of the stabbing. (People of
the Philippines v. Rarugal, G.R. No. 188603, 16 Jan. 2013)
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Factors in Determining whether the Declarant is Conscious of his Impending Death
1. The words or statements of the declarant on the same occasion;
2. His conduct at the time the declaration was made; and
3. The serious nature of his wounds as would necessarily engender a belief on his part that he would not survive
therefrom. (Regalado, 2008)

Remember! The dying declaration of the deceased is not admissible as an ante-mortem declaration when
the deceased was in doubt as to whether he would die or not. It may, however, be admitted as part of res
gestae when it is made immediate after a startling occurrence. (People of the Philippines v. Laquinon, G.R.
No. L-45470, 28 Feb. 1985)

Q: Sam was charged with robbery and homicide. Kitchie, the victim, suffered several stab wounds. It appears
that 11 hours after the crime, while Kitchie was being brought to the hospital in a jeep, with his brother and a
policeman as companions, Kitchie was asked certain questions which she answered, pointing to Sam as her
assailant. Her answers were put down in writing, but since she was in a critical condition, her brother and the
policeman signed the statement. Is the statement admissible as a dying declaration? Explain.

A: Yes. The statement is admissible as a dying declaration if the victim subsequently died and her answers
were made under the consciousness of an impending death. The fact that she did not sign the statement
pointing to the accused as her assailant because she was in a critical condition does not affect its admissibility as
a dying declaration. (People v. Viovicente, G.R. No. 118707, 02 Feb. 1998)

Remember! A dying declaration may be oral or written. If oral, the witness who heard it may testify
thereto without the necessity of reproducing the word of the decedent, if he is able to give the substance
thereof. An unsigned dying declaration may be used as a memorandum by the witness who took it down.
(People v. Boller, G.R. Nos. 144222-24, 03 Apr. 2002)

Q: Zapanta, while watching television, heard 4 successive gunshots. When Zapanta looked through the open
door, he saw 2 men armed with .38 caliber revolvers standing a meter away from Borre. He saw Palanas deliver
the fourth shot but he could not identify the other shooter. On the way to the hospital, Borre told Zapanta that it
was "Abe", "Aspog" or "Abe Palanas", his neighbor, who shot him. This statement was repeated to Borre’s wife,
Resurreccion, who followed him at the hospital. For his part, Palanas interposed the defense of denial and alibi.
He claimed that on the day before the incident, he was in Parañaque City attending to the needs of his sick
father. On the next day, he went to Tondo, Manila for a baptism and stayed there from morning until 9:00 p.m.,
after which he returned to his father in Parañaque City. He maintained that he was not aware of the death of
Borre until he was informed by a neighbor that Resurreccion was accusing him of killing her husband. Can
Borre’s statements on his way to the hospital be considered a dying declaration and part of the res
gestae?

A: Yes. Borre’s statements constitute a dying declaration as they pertained to the cause and circumstances of
his death. Moreover, taking into consideration the number and severity of his wounds, it may be
reasonably presumed that he uttered the same under a fixed belief that his own death was already
imminent. In the same vein, Borre’s statements may likewise be deemed to form part of the res gestae as
they refer to a startling occurrence, i.e., him being shot. While on his way to the hospital, Borre had no time
to contrive the identification of his assailants, thus, his utterance was made in spontaneity and only in reaction
to the startling occurrence. (People v. Palanas, G.R. No. 214453, 17 June 2015)

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Assailing a Dying Declaration
The declaration may be attacked in the same manner as one would do a testimony in open court. The declarant
himself may be impeached through the normal methods provided for under the rules. A dying declaration, as an
exception to the hearsay rule, is not meant to confer competency on an otherwise incompetent witness.

2. STATEMENT OF DECEDENT OR A PERSON OF UNSOUND MIND

Requisites:
1.There is an action against the executor or administrator or another representative of a deceased person, or
against a person of unsound mind;
2.The action is upon a claim or demand against the estate of such deceased person/person of unsound mind;
3.A party or assignor of a party or a person in whose behalf a case is prosecuted testifies on a matter of fact
occurring before the death of the deceased person or before the person became of unsound mind;
4.There was a statement made by the deceased/ person of unsound mind;
5.Such statement was made upon the personal knowledge of the deceased/person of unsound mind at a time
when the matter had been recently perceived by him or her; and while his or recollection was clear.

3. DECLARATION AGAINST INTEREST

Requisites:
1.The declarant is dead or unable to testify;
2.The declaration relates to a fact against the interest of the declarant;
3.At the time he made said declaration, he was aware that the same was contrary to his interest; and
4.The declarant had no motive to falsify and believed such declaration to be true.

For instance, A was charged with the crime of kidnapping B. One of the testimonies presented by the
prosecution was that of C, who testified that B confided to her that he and A’s wife D were having an affair.
Undoubtedly, his wife’s infidelity was ample reason for A to contemplate revenge. Consequently, the trial court
convicted A based on the testimonies of the witnesses. Was the testimony of C admissible as evidence?

Yes, B’s revelation to C regarding his illicit relationship with A’s wife is admissible in evidence. B having been
missing since his abduction, cannot be called upon to testify. His confession to C, definitely a declaration
against his own interest, since his affair with D was a crime, is admissible in evidence because no sane
person will be presumed to tell a falsehood to his own detriment.

Reason for the admissibility of declaration against interest

1. Necessity - as such declaration, act, or omission is frequently the only mode of proof available; and
2. Trustworthiness - presumed that men will neither falsify nor commit mistakes when such falsehood or
mistake would be prejudicial to their own pecuniary interest, and because of the fact that any fraudulent motive
for making the statement may be shown.

4. ACT OR DECLARATION ABOUT PEDIGREE

Requisites:
1.The declarant is dead or unable to testify;
2.The pedigree should be in issue
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3.The declarant must be a relative of the person whose pedigree is in question, either by birth, adoption, or
marriage, or in the absence thereof, by person whose family he or she was so intimately associated as to be
likely to have accurate information concerning his or her pedigree;
4.The declaration must be made ante litem motam or before the controversy occurred; and
5.The relationship between the declarant and the person whose pedigree is in question must be shown by
evidence other than such act or declaration.

For instance, the declaration of A who is already dead, prior to his death and prior to any
controversy that B is his illegitimate son, is a declaration about pedigree.

Similarly, a statement from a mother while living, that her daughters, C and D, were sired by the
same father is admissible.

DECLARATION AGAINST INTEREST ADMISSION AGAINST INTEREST

Made by a non-party Made by a party to the litigation or by one with
privity with or identified in legal interest with such
party.
Must be against the declarant’s interest Need not be against the admitter’s interest.
Secondary evidence is admissible only when the Primary evidence is admissible whether the declarant
declarant is already dead or unavailable to testify as a is available as a witness.
witness.
Hearsay, but admissible as an exception to the Not hearsay, thus admissible.
hearsay rule.
Must have been made ante litem motam, i.e. before May be made at any time, before or during the trial.
the controversy
The defendant must be dead or unable to testify. No requirement that the admitter is dead or unable to
testify
Admissible against the declarant and third persons. Admissible only against the admitter.

5. FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE

Requisites:
1.There is controversy in respect to the pedigree of any member of the family;
2.The reputation or tradition of the pedigree of the person concerned existed previous to the controversy;
3.The statement is about the reputation or tradition of the family in respect to the pedigree of any member of the
family; and
4.The witness testifying to the reputation or tradition regarding pedigree of the person concerned must be a
member of the family of the said person either by consanguinity, affinity or adoption

Family reputation or tradition with respect to one’s pedigree may be established through testimony in
open court of a witness who must be a member of the family either by consanguinity, affinity, or adoption; or
through entries in family bible, family books or charts; engravings on rings, or family portraits and the like.

ACT OR DECLARATION ABOUT PEDIGREE FAMILY REPUTATION OR TRADITION

REGARDING PEDIGREE
Witness need not be a member of the family Witness is a member of the family.
Relation of the declarant and the person subject of the The witness is the one to whom the fact relates, it is
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 inquiry must be established by independent evidence.
not necessary for him to establish by independent
evidence his relationship to the family. (Francisco,
1992)
Testimony is about what the declarant has said Testimony is about family reputation or tradition
concerning the pedigree of the family. covering matters of pedigree.

6. COMMON REPUTATION

Common reputation existing previous to the controversy, as to boundaries of or customs affecting lands
in the community and reputation as to events of general history important to the community, 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

Take note! As a general rule, the reputation of a person should be that existing in the place of his residence; it
may also be that existing in the place where he is best known. Character is what a man is, and reputation is what
he is supposed to be in what people say he is (Lim vs. CA, GR No. 91114, 25 Sept.1992)

For instance, in an attempt to discredit and impeach a prosecution witness in a homicide case, the
defense counsel called to the stand a person who had been the boyhood friend and next-door neighbor of the
said witness for 30 years. One of the question that the defense counsel asked of the impeaching witness was:
“Can you tell this Honorable Court about the general reputation of the prosecution witness in your community
for aggressiveness and violent tendencies? As the trial prosecutor, would you interpose your objection to the
question of the defense counsel?

Yes, Under the Rules, an adverse party’s witness may be properly impeached by reputation evidence
provided that it is to the effect that the witness’ general reputation for honesty, integrity or truth was bad. The
reputation must only be on character for truthfulness or untruthfulness.

7. PART OF THE RES GESTAE

“Res gestae” is a Latin phrase which means “things done”.

Statements made by a person while a startling occurrence is taking place or immediately prior or
subsequent thereto, under the stress of excitement caused by the occurrence with respect to the circumstances
thereof, may be given in evidence as part of the res gestae.

As an exception to the hearsay rule, it refers to those exclamations and statements made by either the
participants, victims, or spectators to a crime immediately before, during or immediately after the
commission of the crime, when the circumstances are such that the statements were made as a spontaneous
reactions or utterances inspired by the excitement of the occasion, and there was no opportunity for the
declarant to fabricate a false statement.

For instance, 4 separate information for Rape and 1 information for Attempted Rape were filed in the
RTC against X. In her direct testimony, A testified that the accused is her father. At the hearing on January 20,
2023, Public Prosecutor B informed the court that A died. The prosecution adduced evidence of res gestae
through testimonies of its witnesses, C and D.
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 C testified that at noontime on April 16, 2021, A arrived at her house. She noticed that A was sad and
crying. Upon her inquiry, A told her that she was raped by her father on April 8, 2021, and 3 hours ago on April
15, 2021.

While D testified that on April 18, 2021, A reported for work for the first time as a householder in the
house of E. He noticed that A was sad and lonely, and often saw her crying. She confided to him her problems
and revealed to him that she was raped by her own father on April 8, 2021 and April 15, 2021. Were the
testimonies of C and D pertaining to the statements of A considered as part of the res gestate and thus produce a
conviction?

Yes, it is well entrenched that a witness may only testify on facts derived from his own perception
and not on what he has merely learned or heard from others. Hence, as a general rule hearsay evidence is
inadmissible. As an exception, Sec. 42 of Rule 130 allows the admission of hearsay evidence as part of the res
gestae.

In determining the admissibility of evidence as part of the res gestae, the test is whether the act or
declaration was made as a spontaneous reaction and is so intimately interwoven or connected with the
principal act or event that it characterizes as to be regarded as a part of the transaction itself and
whether it negates any premeditation or purpose to manufacture testimony.

C’s testimony places A’s utterances only several hours from the time the disputed incidents took place on
April 15, 2021.

Meanwhile, with respect to D’s testimony, which consisted of statements given by A on April 18, 2021,
or 3 days after April 15, 2021. The court finds that the utterances made to D are far too removed from the event
described as to form part of the res gestae. The clear and straightforward testimony of C, together with the
medico-legal findings consistent with the facts described, produces a conviction beyond reasonable doubt that X
is guilty for the repeated defilement of his own daughter, A. (People vs. XXX, GR. No. 205888, 2 August 2018)

Factors to determine spontaneity of declaration

1.The time that has lapsed between the occurrence of the act or transaction and the making of the statement;
2.The place where the statement is made;
3.The condition of the declarant when the statement is made;
4.The presence or absence of intervening events between the occurrence and the statement relative; and
5.The nature and the circumstances of the statement itself.

For instance, X was convicted of the crime of rape. One of the evidence adduced was A’s spontaneous,
unhesitating and immediate denunciation of the rape to her Tita C and her mother. Is the statement made by A
part of the res gestae under Section 42, Rule 130 of the Rules of Court?

Yes, A’s denunciation was part of the res gestae. A went to Tita Terry’s house immediately after fleeing
from X and spontaneously, unhesitatingly and immediately declared to Tita C that X had sexually abused her.
Such manner of denunciation of him as her rapist was confirmed by Tita C’s testimony about A’s panic-stricken
demeanor that rendered it difficult to quickly comprehend what the victim was then saying.

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Verbal Acts

The principal act to be characterized must be equivocal;

The equivocal act must be material to the issue;
The statement must accompany the equivocal act; and
The statement gives a legal significance to the equivocal act.

The reason for the admissibility of verbal acts is the motive, character and object of an act are frequently
indicated by what was said by the person engaged in the act.

For instance, A, B, C, and D were convicted of the crime of murder for the killing of E. One of the
pieces of evidence adduced was a statement of E to his mother saying that B shot him in the immediate
aftermath of the shooting where he was the victim. Is the statement made by E admissible?

Yes, E’s statement was part of the res gestae and was admissible.
The requisites concurred herein. Firstly, the principal act of shooting E was a startling occurrence.
Secondly, his statement to his mother about being shot by the group of B was made before E had time to
contrive or to devise considering that it was uttered immediately after the shooting. And thirdly, the
statement directly concerned the startling occurrence itself and its attending circumstance: that is the
identities of the assailants.

REMEMBER!

Manner of analyzing res gestae:

Analyze where there is a startling occurrence.

When the utterance is made in relation of startling occurrence. There should be an element of immediacy.
What is the tenor of the statement uttered? It should be related to the circumstances of the event.

Q: While passing by a dark uninhabited part of their barangay, PO2 Asintado observed shadows and heard
screams from a distance. PO2 Asintado hid himself behind the bushes and saw a man beating a woman whom
he recognized as his neighbour, Kulasa. When Kulasa was already in agony the man stabbed her and she fell on
the ground. The man hurriedly left thereafter. PO2 Asintado immediately went to Kulasa’s rescue. Kulasa who
was then in a state of hysteria, kept mentioning to PO2 Asintado “Si Rene, gusto akong patayin! Sinaksak niya
ako!” When PO2 Asintado was about to carry her, Kulasa refused and said “Kaya ko. Mababaw lang to.
Habulin mo si Rene.” The following day, Rene learned of Kulasa’s death and, bothered by his conscience,
surrendered to the authorities with his counsel. As his surrender was broadcasted all over media, Rene opted to
release his statement to the press which goes:

“I believe that I am entitled to the presumption of innocence until my guilt is proven beyond reasonable doubt.
Although I admit that I performed acts that may take one’s life away, I hope and pray that justice will be served
in the right way. God bless us all.
(Sgd.)
Rene”

The trial court convicted Rene of homicide on the basis of PO2 Asintado’s testimony, Kulasa’s statements, and
Rene’s statement to the press. On appeal, Rene raises the following error: The trial court erred in giving weight
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to PO2 Asintado’s testimony, as the latter did not have personal knowledge of the facts in issue, and violated
Rene’s right to due process when it considered Kulasa’s statements despite lack of opportunity for her cross-
examination. Resolve.

A: The trial court did not err in giving weight to PO2 Asintado’s testimony. While a witness can only testify as
to those facts which he has personal knowledge, the Rules provide that a statement made under the
influence of a startling event witnessed by the person who made the declaration before he had time to
think and make up a story, or to concoct or contrive a falsehood, or to fabricate an account, and without
any undue influence in obtaining it, aside from referring to the event in question or its immediate attending
circumstances, is an exception being part of res gestae. (Belbis, Jr., v. People, G.R. No. 181052, 14 Nov. 2012)

Here, the statements made by PO2 Asintado constitutes part of res gestae since the same were made
without any opportunity to fabricate and while a startling occurrence was actually taking place. In
addition, the statement of PO2 Asintado may fall within the purview of the doctrine of independent relevant
statement, where only the fact that such statements were made is relevant, and the truth and falsity thereof is
immaterial. (People v. Malibiran, G.R. No. 178301, 24 Apr. 2009) On the other hand, Kulasa’s statements are
also admissible as part of res gestae since the same were made under the influence of a startling event and
without any opportunity to concoct or devise a falsehood.

PART OF RES GESTAE DYING DECLARATION

It is the event itself which speaks. A sense of impending death takes the place of an oath
and the law regards the declarant as testifying.
May be made by the killer after or during the killing Can be made by the victim only.
May be made by a third person.
May precede, or accompany or follow the principal Confined to matters occurring after the homicidal act.
act.
Justification is the spontaneity of the statement Justification is the trustworthiness, being given by
the person who was aware of the impending death.

8. RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY

A memorandum, report, record or data compilation of acts, events conditions, opinions or diagnoses
made by writing, typing, electronic, optical or other similar means at or near the time of or from transmission or
supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a
business activity, and such was the regular practice to make the memorandum, report, record, or data
compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or
other qualified witnesses is excepted from the rule in hearsay evidence. (Sec. 45, Rule 130, ROC, as amended).

9. ENTRIES IN OFFICIAL RECORDS

Entries in official records made in the performance of his or her duty by a public officer of the
Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of
the facts therein stated.

Requisites:
1.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,

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2.Entries were made by a public officer in the performance of his duties or by a person on the performance of a
duty especially enjoined by law; and
3.Entries must have been made in official records.

10. COMMERCIAL LISTS

Requisites:
1.Statements of matters of interest to persons engaged in occupation;
2.Statements must be contained in a list, register, periodical, or other published compilation;
3.Compilation is published for use by persons engaged in the occupation; and
4.Such is generally relied upon by them.

ENTRIES IN OFFICIAL RECORD ENTRIES IN THE COURSE OF BUSINESS

The entrant, if a private individual, must have acted It is sufficient that the entrant made the entries
pursuant to specific legal duty specifically enjoined pursuant to a duty be it legal, contractual, moral, or
by law. religious.
Entrant need not be dead or unable to testify. Entrant must be dead or unable to testify.
Need not be authenticated Needs authentication.
Examples of Commercial Lists
1. Trade journals reporting current prices and other
market data;
2. Mortality tables compiled for life insurance;
3. Abstracts of title compiled by reputable title
examining institutions or individuals; or
4. Business directories, animal pedigree registers,
and the like. (Francisco, 1992)

Q: Should entries in the police blotter be given probative value?

A: NO, as they are not conclusive evidence of the truth of the contents but merely of the fact that they
were recorded. (People v. Cabrera, Jr., G.R. No.138266, 30 Apr. 2003)

Q: In a compulsory arbitration case between Mercalco and its union, may the Secretary of Labor take into
account a newspaper report citing an All Asia Capital finance analyst’s estimate o Meralco’s 1996 net
operating income at P5.6 billion and upon which the union relied upon in order to support its position on
the wage issue?

A: NO. Under Sec. 47, Rule 130, statement of matters contained in a periodical may be admitted only “if
that compilation is published for use by persons engaged in that occupation and is generally used and
relied upon by them therein.” The cited report is a mere newspaper account and not even a commercial
list. At most, it is but an analysis or opinion which carries no persuasive weight as no sufficient figures to
support it were presented. Neither did anybody testify to its accuracy. It cannot be said that businessmen
generally rely on news items such as this in their occupation. Besides, no evidence was presented that the
publication was regularly prepared by a person in touch with the market and that it is generally regarded as
trustworthy or reliable. Absent extrinsic proof of the accuracy, these reports are not admissible. (Riguera,
2020, citing Manila Electric Co. v. Quisumbing, G.R. No. 127598, 22 Feb. 2000)

11. LEARNED TREATIES

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 A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as
tending to prove the truth of a 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 or her
profession or calling as expert in the subject. (Sec. 48, Rule 130, ROC, as amended)

12. TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING (Sec. 49, Rule 130)

The testimony or deposition of a witness deceased or out of the Philippines or who cannot, with due
diligence, be found therein, or is unavailable or otherwise 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 him or her. (Sec. 49, Rule 130, ROC, as
amended)

Requisites for the Rule on Former Testimony to Apply

1. The witness is dead or unable to testify;
2. His testimony or deposition was given in a former case or proceeding, judicial or administrative, between
the same parties or those representing the same interests;
3. The former case involved the same subject as that in the present case, although on different causes of
action;

Remember! Sec. 49, Rule 130 requires that the issues involved in both cases must, at least, be substantially
the same; otherwise, there is no basis in saying that the former statement was - or would have been -
sufficiently tested by cross-examination or by an opportunity to do so. The requirement of similarity though
does not mean that all the issues in the two proceedings should be the same. Although some issues may not be
the same in the two actions, the admissibility of a former testimony on an issue which is similar in both actions
cannot be questioned. These considerations, among others, make Section 49, Rule 130 a distinct rule on
evidence and therefore should not be confused with the general provisions on deposition under Rule 23 of the
Rules of Court. In other words, even if the petitioner complies with Rule 23 of the Rules of Court on the use of
depositions, the observance of Section 49, Rule 130 of the Rules of Court cannot simply be avoided or
disregarded. (Republic v. Sandiganbayan, G.R. No. 152375, 13 Dec. 2011)

4. The issue testified to by the witness in the former trial is the same issue involved in the present case; and
5. The adverse party had an opportunity to cross- examine the witness in the former case.
(Ambray v. Tsuorous, G.R. No. 209264, 05 July 2016)

Reason for Admissibility

The reasons for the admissibility of testimony taken at a former trial or proceeding are the necessity for
the testimony and its trustworthiness. However, before the former testimony can be introduced in evidence, the
proponent must first lay the proper predicate therefor, i.e., the party must establish the basis for the admission of
testimony in the realm of admissible evidence. (Ibid.)

Grounds which make a Witness Unable to Testify in a Subsequent Case

1. Death;
2. Insanity or mental incapacity or the former witness’ loss of memory through old age or disease;
3. Physical disability by reason of sickness or advanced age;
4. The fact that the witness has been kept away by contrivance of the opposite party; or
5. The fact that after diligent search the former witness cannot be found. (Francisco, 1992)

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Proof of Former Testimony
1. If reduced to writing, such writing is the primary evidence thereof and should be used; or
2. The stenographic notes or a copy thereof.

Remember! The judge’s notes are not evidence of what the witness said, and, as a rule, they can be used
only to refresh the memory of a witness.

RESIDUAL EXCEPTION
(Sec. 50, Rule 130)
A statement not specifically covered by any of the exceptions, having circumstantial guarantees of
trustworthiness, is admissible provided the conditions under Sec. 50, Rule 130 are present.

Requisites for Admissibility

1. The statement, having equivalent circumstantial guarantees of trustworthiness, must not be covered by
any of the foregoing exceptions;
2. The statement is offered as evidence of a material fact;
3. The statement is more probative on the point for which it is offered than any other evidence which the
proponent can procure through reasonable efforts; and
4. The general purposes of these rules and the interests of justice will be best served by admission of the
statement of evidence. (Sec. 50, Rule 130, ROC, as amended)

Remember! A statement may not be admitted under this exception unless the proponent makes known to the
adverse party, sufficiently in advance of the hearing, or by the pre-trial stage in the case of a trial of the main
case, to provide the adverse party with a fair opportunity to meet it, the proponent’s intention to offer the
statement and the particulars of it, including the name and address of the declarant. (Ibid.)

Independently Relevant Statements

These are statements which are relevant independently of whether they are true or not. They are neither hearsay
nor an exception to the hearsay rule as the purpose thereof is not to prove the truth of the declaration or
document. (Estrada v. Desierto, supra) It merely proves the fact that a statement was made and not the truth of
the fact asserted in the statement. An out-of-court statement which is relevant not for the truth off a matter
asserted therein, but for something else, e.g., state of mind, intent, belief, the mere fact of utterance, or legal
effect. It is a statement relevant for something else than its truth. Not being hearsay, independently
relevant evidence is admissible. (Riguera, 2020)

Classification of Independently Relevant Statements

1. Those statements which are the very facts in issue; and
2. Those statements which are circumstantial evidence of the fact in issue. It includes the following:
a. Statements of a person showing his state of mind, that is, his mental condition, knowledge, belief,
intention, ill-will and other emotions;
b. Statements of a person which show his physical condition, as illness and the like;
c. Statements of a person from which an inference may be made as to the state of mind of another, i.e., the
knowledge, belief, motive, good or bad faith, etc. of the latter
d. Statements which may identify the date, place and person in question; and
e. Statements showing the lack of credibility of a witness.

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Q: Annie overheard Billy call Rocky a thief. In an action for defamation filed by Rocky against Billy, is the
testimony of Annie offered to prove the fact of utterance i.e., that Billy called Rocky a thief, admissible in
evidence? Explain.

A: YES. The testimony of Annie is admissible in evidence as an independently relevant statement. It is offered
in evidence only to prove the tenor thereof, not to prove the truth of the facts asserted therein.
Independently relevant statements include statements which are on the very facts in issue or those which are
circumstantial evidence thereof. The hearsay rule does not apply. (People v. Gaddi, G.R. No. 74065, 27 Feb.
1989)

Q: A foreign dog trained to sniff dangerous drugs from packages, was hired by FDP Corporation, a door-to-door
forwarder company, to sniff packages in their depot at the international airport. In one of the routinary
inspections of packages waiting to be sent to the USA, the dog sat beside one of the packages, a signal that the
package contained dangerous drugs. Thereafter, the guards opened the package and found 2 kilograms of
cocaine. During the trial, the prosecution, through the trainer who was present during the incident and an expert
in this kind of field, testified that the dog was highly trained to sniff packages to determine if the contents were
dangerous drugs and the sniffing technique of their highly trained dogs was accepted worldwide and had been
successful in dangerous drugs operations. The prosecution moved to admit this evidence to justify the opening
of the package. The accused objected on the grounds that: (i) the guards had no personal knowledge of the
contents of the package before it was opened; (ii) the testimony of the trainer of the dog is hearsay; and
(iii) the accused could not cross-examine the dog. Decide.

A: The objections of the accused should be overruled. Evidence is admissible when it is relevant to the issue
and is not excluded by the law or the rules. (Section 3, Rule 128, ROC, as amended) Under Section 22, Rules
130 of the Rules of Court, a witness can testify only to those which he knows of his personal knowledge
and derived from his own perception. The contention that the guards had no personal knowledge of the
contents of the package before it was opened is without merit. The guards can testify as to the facts surrounding
the opening of the package since they have personal knowledge of the circumstances thereof, being physically
present at the time of its discovery.

On the other hand, the testimony of the trainer of the dog is not hearsay on the basis of the following
grounds:
a. He has personal knowledge of the facts in issue, having witnessed the same;
b. Hearsay merely contemplates an out-of-court declaration of a person which is being offered to prove
the truthfulness and veracity of the facts asserted therein;
c. He is an expert witness; hence, his testimony may constitute an exception to the hearsay rule;
d. The accused has the opportunity to cross- examine him; and
e. Testimony of a witness as to statements made by nonhuman declarants does not violate the rule against
hearsay. The law permits the so-called “non-human evidence” on the ground that machines and animals, unlike
humans, lack a conscious motivation to tell falsehoods, and because the workings of machines can be explained
by human witnesses who are then subject to cross-examination by opposing counsel. (City of Webster Groves v.
Quick. 323 S.W. 2d 386)

Conversely, the accused may not argue that he cannot cross examine the dog as the Constitutional right
to confrontation refers only to witnesses. As alluded, the human witnesses who have explained the workings of
the non-human evidence is the one that should be cross-examined. There is no doubt that the evidence of the
prosecution is admissible for being relevant and competent.

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Q: In Estrada v. Desierto, supra., at issue was whether President Estrada resigned from his position. Submitted
to prove Estrada’s intent to resign was the Angara Diary in which Executive Secretary Edgardo Angara recorded
Estrada’s statements in which he said, “Pagod na pagod na ako. Ayoko na, masyado nang masakit. Pagod na
ako sa red tape, bureaucracy, intriga. I just want to clear my name, then I will go.” Angara himself did not
testify in court. Estrada’s lawyers argued that these statements were hearsay. Were they?

A: No. The statements are independently relevant, that is, relevant independently of whether they are true or
not. Independently relevant statements are of two classes: (1) those statements which are the very facts in
issue, and (2) those statements which are circumstantial evidence of the acts in issue. The second includes
statements of a person showing his state of mind (i.e., his mental condition, knowledge, belief, intention,
ill will, and other emotions) and statements of a person from which an inference may be made as to the
state of mind of another. The Angara Diary contains statements of Estrada which reflect his state of mind and
are circumstantial evidence of his intent to resign. It also contains statements which one can reasonably infer
Estrada’s intent to resign. Such statements are independently relevant and are excluded from the hearsay.
(Riguera, 2020)

7. OPINION RULE
Opinion
A person’s thought belief, or inference, especially a witness’s view about facts in dispute, as opposed to
personal knowledge of the facts themselves. (Black’s Law Dictionary, 2004)

GR: The opinion of a witness is not admissible. (Sec. 51, Rule 130, ROC, as amended) A witness testifies only
with respect to facts personally observed by him and it is for the court to draw conclusions from the facts
testified to.

XPNs:
1. Opinion of expert witness; and
2. Opinion of ordinary witnesses.

EVIDENCE NOT BASED ON PERSONAL OPINION EVIDENCE

KNOWLEDGE
Consists of testimony that is based on personal Expert evidence based on the personal knowledge,
knowledge of the person testifying. skill, experience or training of the person testifying
and evidence of an ordinary witness on limited
matters.

Opinion of Expert Witness

The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he
shown to possess may be received in evidence. (Sec. 52, Rule 130, R, as amended)

NOTE: The use of the word “may”, signifies that the use of opinion of expert witness is permissive and
not mandatory on the part of the courts. It only assists the court in the determination of the issue before it,
and is for the court to adopt or not to adopt depending on its appreciation of the attendant facts and the
applicable law. (Tabao v. People, G.R. No. 187246, 20 July 2011)

Expert Witness

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He is one who belongs to the profession or calling to which the subject matter of the inquiry relates and who
possesses special knowledge on questions on which he proposes special knowledge to express an opinion.
(Regalado, 2008)

Before one may be allowed to testify as an expert witness, his qualification must first be established by the party
presenting him. (People vs. Fundano, G.R. No. 124737, 26 June 1998)

Expert testimony is not admissible as to a matter not in issue.

Remember! Expert witness is not necessary when the doctrine of res ipsa loquitur is applicable. (Rosit v.
Davao Doctor’s Hopital, G.R. No. 210445, 05 Dec.2015)

Degree of Skill or Knowledge

There is no definite standard in determining the degree of skill or knowledge that a witness must possess in
order to testify as an expert as long as the following are present:
1. Training and education;
2. Particularity, first-hand familiarity with the facts of the case; and
3. Presentation of authorities or standards upon which his opinion is based. (People v. Abriol, G.R. No. 123137,
17 Oct. 2001)

Remember! An expert witness may base his opinion either on the first-hand knowledge of the facts or on the
basis of hypothetical questions where the facts are presented to him hypothetically and on the assumption that
they are true, formulates his opinion on such hypothesis.

The probative force of the testimony of an expert does not lie in a mere statement of his theory or opinion, but
rather in the aid that he can render to the courts in showing the facts which serve as a basis for his criterion and
the reasons upon which the logic of his conclusion is founded. (Dizon v. Tuazon, G.R. No. 172167, 09 July
2008)

Remember! The competence of an expert witness is a matter for the trial court to decide upon in the exercise of
its discretion. The test of qualification is necessarily a relative one, depending upon the subject matter of the
investigation, and the fitness of the expert witness. In our jurisdiction, the criterion remains to be the expert
witness’ special knowledge, experience, and practical training that qualify him or her to explain highly technical
medical matters to the court. (Casumpang v. Cortejo,G.R. Nos. 171127, 171217, 171228, 11 Mar. 2015)

Weight to be given Opinion of Expert Witness

In any case where the opinion of an expert witness is received in evidence, the court has a wide latitude of
discretion in determining the weight to be given to such opinion, and for that purpose may consider the
following:
1. Whether the opinion is based upon sufficient facts or data;
2. Whether it is the product of reliable principles and methods;
3. Whether the witness has applied the principles and methods reliably to the facts of the case; and
4. Such other factors as the court may deem helpful to make such determination. (Sec. 5, Rule 133, ROC, as
amended)

Discretion of the Court in Giving Weight to the Testimony

Although courts are not ordinarily bound by expert testimonies, they may place whatever weight they may
choose upon such testimonies in accordance with the facts of the case. The relative weight and sufficiency of
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expert testimony is peculiarly within the province of the trial court to decide, considering the ability and
character of the witness, his actions upon the witness stand, the weight and process of the reasoning by which
he has supported his opinion, his possible bias in favor of the side for whom he testifies, the fact that he is a
paid witness, the relative opportunities for study and observation of the matters about which he testifies, and
any other matters which deserve to illuminate his statements.

The opinion of the expert may not be arbitrarily rejected; it is to be considered by the court in view of all the
facts and circumstances in the case and when common knowledge utterly fails, the expert opinion may be given
controlling effect. The problem of the credibility of the expert witness and the evaluation of his testimony is left
to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of abuse of discretion.
(Tabao v. People, G.R. No. 187246, 20 July 2011)

Remember! The testimony of a qualified medical doctor cannot be excluded simply because he is not a
specialist. The matter of training and specialization of the witness goes to the weight rather than admissibility.
(Casumpang v. Cortejo, G.R. Nos. 171127, 171217, 171228, 11 Mar. 2015)

Test in Determining the Need to Resort to Expert Evidence

Whether the opinion called for will aid the court in resolving an issue.

Handwriting Expert
The opinion of handwriting experts is not necessarily binding upon the court, the expert’s function being to
place before the court data upon which the court can form its own opinion. This principle holds true especially
when the question involved is mere handwriting similarity or dissimilarity, which can be determined by a visual
comparison of specimens of the questioned signatures with those of the currently existing ones. A finding of
forgery does not depend entirely on the testimonies of handwriting experts, because the judge must conduct an
independent examination of the questioned signature in order to arrive at a reasonable conclusion as to its
authenticity. (Gepulle-Garpo v. Spouses Garabato, G.R. No. 200013, 14 Jan. 2015)

Q: In a case where the issue involves forgery, two expert witnesses were presented by the plaintiff, the NBI
official and a handwriting expert from the PNP. The NBI official testified that the signatures in the deed of sale
and the other sample signatures are the same. However, the PNP handwriting expert declared that the person
who signed are not the same person. The lower court gave credit and based the ruling on the testimony of the
PNP handwriting expert on the fact that the said witness has better credentials than the NBI witness. Is the
ruling valid, because of the fact that the court based the ruling on the credentials?

A: NO. While credentials of an expert witness play a factor in the evidentiary and persuasive weight of his
testimony, the same cannot be the sole factor in determining its value. The judge must conduct his own
independent examination of the signatures under scrutiny. (Tamani, et al. v. Salvador and Bravo, G.R. No.
171497, 04 Apr. 2011)

Opinion of Ordinary Witness

That which is given by a witness who is of ordinary capacity and who has by opportunity acquired a particular
knowledge which is outside the limits of common observation and which may be of value in elucidating a
matter under consideration.

The opinion of a witness for which proper basis is given, may be received in evidence regarding:
1. The identity of a person about whom he or she has adequate knowledge;
2. A handwriting with which he or she has sufficient familiarity;
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3. The mental sanity of a person with whom he or she is sufficiently acquainted (People v. Castillo, G.R. No.
1865333, 09 Aug. 2010);

Remember! Where the sanity of a person is at issue, expert opinion is not necessary, the observation of the trial
judge coupled with evidence establishing the person’s state of mental sanity will suffice. (Hernandez v. San
Juan-Santos, G.R. No. 166470 & 169217, 07 Aug. 2009)

4. The witness’ impressions of the emotion, behavior, condition or appearance of a person. (Sec. 53, Rule 130,
ROC, as amended)

8. CHARACTER EVIDENCE
Character
The aggregate of the moral qualities which belong to and distinguish an individual person; the general result of
one’s distinguishing attributes. (Black’s Law Dictionary, 2004)

Admissibility of Character Evidence

GR: Evidence of a person’s character or a trait of character is INADMISSIBLE for the purpose of proving
action in conformity therewith on a particular occasion, except as provided in the rules.

Remember! The reason for this is that the evidence of a person’s character does not prove that such person
acted in conformity with such character or trait in a particular occasion.

XPNs:
CRIMINAL CASES
AS TO THE ACCUSED AS TO THE PROSECUTION AS TO THE OFFENDED
PARTY
The character of the offended They may not prove the bad moral His good or bad moral character
party may be proved if it tends to character of the accused which is may be proved as long as it tends
establish in any reasonable degree pertinent to the moral trait to establish in any reasonable
the probability or improbability of involved in the offense charged, degree the probability or
the offense charged. The accused unless in rebuttal when the improbability of the offense
may prove his or her good moral accused opens the issue by charged.
character pertinent to the moral introducing evidence of his good
trait involved in the offense moral character.
charged.

Remember! In criminal cases, character evidence is inadmissible under the following situations:
1. In rebuttal, proof of the bad character of the victim is not admissible if the crime was committed
through treachery and premeditation; and
2. In rape cases, the evidence of complainant’s past sexual conduct, or reputation or opinion thereof shall
not be admitted unless and only to the extent that the court finds that such evidence is material and relevant to
the case.(Sec. 6, R.A. No. 8505)

Q: Dave is on trial for sexual assault of Delly, a law student who sidelines as a call center agent. Dave offers the
testimony of Danny, who says that Dave is known in the community as a decent and discerning person. The
prosecution presents a rebuttal witness, Dovie, who testifies that, if Dave was reputed to be a good person, that

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reputation was a misperception because Dave had been previously convicted of homicide. Is Dovie's testimony
admissible as to the character of Dave?

A: No. Dovie’s testimony on Dave’s previous conviction for homicide as evidence of his bad character does not
refer to a moral trait involved in the offense charged which is sexual assault.

Civil Cases
Evidence of the moral character of a party in a civil case is admissible only when pertinent to the issue of
character involved in the case. (Sec. 54[b], Rule 130, ROC, as amended) (Sec. 54(b), Rule 130, ROC, as
amended)

Proof of bad character

1. Cross-examination; or
2. Independent evidence of bad character.

Remember! It is permitted only when pertinent to the issue of character involved in the case like in a civil
action for damages emanating from the offense of libel, slander, or seduction. (Peralta, 2020)

Personal opinion as to the moral character of the accused and the specific conduct of the part exhibiting
character is excluded as evidence. However, reputation in the community is admissible.

Q: Don was prosecuted for homicide for allegedly beating up Vilma to death with an iron pipe. May the
prosecution introduce evidence that Vilma had a good reputation for peacefulness and non-violence?
Why?
A: No. The prosecution may introduce evidence of the good or even bad moral character of the victim if it tends
to establish in any reasonable degree the probability or improbability of the offense charged. Here, the evidence
is not relevant.

Criminal and Civil Cases

Evidence of the good character of a witness is not admissible until such character has been impeached.

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made
by testimony as to reputation or by testimony in the form of an opinion. On cross examination, inquiry is
allowable into relevant specific instances of conduct.

In cases in which character or a trait of a character of a person is an essential element of a charge, claim or
defense, proof may also be made of specific instances of that person’s conduct. (Sec. 54[c], Rule 130, ROC, as
amended) (Sec. 54(c), Rule 130, ROC, as amended)

F. BURDEN OF PROOF AND PRESUMPTIONS

(RULE 131)
BURDEN OF PROOF BURDEN OF EVIDENCE
It is the duty of a party to present evidence on the It is the duty of a party to present evidence sufficient
facts necessary to establish his or her claim or to establish or rebut a fact in issue to establish prima
defense by the amount of evidence required by law. facie case. (Sec. 1, Rule 131, ROC, as amended)
(Sec.1, Rule 131, ROC, as amended)
Burden of evidence is that logical necessity which
Burden of proof or “onus probandi” traditionally rests upon a party at any particular time during the
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 refers to the obligation of a party to the litigation to trial to create a prima facie case in his favor or to
persuade the court that he is entitled to relief. overthrow one created against him.
Duty of a party to present evidence to establish his Duty of the party to go forward with the evidence to
claim or evidence by the amount of evidence required overthrow the prima facie evidence against him.
by law, which is preponderance of evidence in civil
cases.
Never shifts. It remains throughout the entire case May shift from one party to the other in the
exactly where the pleadings originally placed it or course of proceedings, depending on the exigencies
with the party upon whom it is imposed. of the case.
Generally determined by the pleadings filed by the Generally determined by the developments of the
party trial, or by the provisions of substantive law or
procedural rules which may relieve the party from
presenting evidence of the facts alleged.

PRESUMPTION INFERENCE
It is mandated by law and establishes a legal relation It is a factual conclusion that rationally be drawn
between or among the facts from other facts.
It is a deduction directed by law. It is a permissive deduction

Effect of Presumption
A party in whose favor the legal presumption exists may rely on and invoke such legal presumption to establish
a fact in issue. One need not introduce evidence to prove the fact for a presumption is prima facie proof of the
fact presumed. (Diesel Construction, Inc v. UPSI Property Holdings, Inc., G.R. No. 154937, 24 Mar. 2008)

PRESUMPTION OF LAW PRESUMPTION OF FACT

It is a deduction which the law expressly directs to be It is a deduction which reason draws from the facts
made from particular facts. proved without an express direction from law to that
effect
A certain inference must be made whenever the facts Discretion is vested in the tribunal as to drawing the
appear which furnish the basis of the inference. inference.
Reduced to fixed rules and forms a part of the system Derived wholly and directly from the circumstances
of jurisprudence of the particular case by means of the common
experience of mankind
Need not be pleaded or proved if the facts on which Has to be pleaded and proved
they are based are duly averred and established

G. PRESENTATION OF EVIDENCE
(RULE 132)
1. EXAMINATION OF WITNESSES
GR: The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or
affirmation. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer,
the answers of the witness shall be given orally. (Sec. 1, Rule 132, ROC, as amended)

RATIO: Open court examination allows the court the opportunity to observe the demeanor of the witness
and allows the adverse party to cross- examine the witness. (Riano, 2019)

XPNs: The testimony of the witness may not be given in open court in the following cases:
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1. In civil cases, by depositions pursuant to and under the limitations of Rules 23 and 24 (Regalado, 2008);

2. In criminal cases, by depositions or conditional examinations, pursuant to Secs. 12-15, Rule 119, and Sec. 1,
Rule 123, or by the records of the preliminary investigation, under the circumstances of Sec. 1(f) of Rule 115
(Regalado, 2008);

3. In criminal cases covered by the Rule on Summary Procedure, the affidavits of the parties shall constitute
the direct testimonies of the witnesses who executed the same (Riano, 2019);

4. In civil cases covered by the Rules on Summary Procedure, the parties are merely required to submit the
affidavits of their witnesses and other pieces of evidence on the factual issues, together with their position
papers, setting forth the law and the facts relied upon (Riano, 2019);

5. Under the Judicial Affidavit Rule, the judicial affidavit shall take the place of direct testimonies of witnesses
(Sec. 2, Judicial Affidavit Rule);

6. Matters regarding the admissibility and evidentiary weight of electronic documents

may be proved by affidavits subject to cross by the adverse party (Sec. 1, Rule 9, Rules on Electronic
Evidence);
7. If the witness is incapacitated to speak; and
8. The question calls for a different mode of answer.

Oath vs. Affirmation

OATH AFFIRMATION
It is an outward pledge made under an immediate An affirmation is a substitute for an oath and is
sense of responsibility to God or a solemn appeal to solemn and formal declaration that the witness will
the Supreme Being in attestation of the truth of some tell the truth.
statement.

Remember! The object of the rule is to affect the

conscience of the witness to compel him to speak the
truth, and to lay him open to punishment for perjury
if he testifies falsely.

Remember! The option to take either an oath or affirmation is given to the witness and not to the court. (Riano,
2019)

In order that one may be competent as a witness, it is not necessary that he has a definite knowledge of the
difference between his duty to tell the truth after being sworn and before, or that he is able to state it, but it is
necessary that he be conscious that there is a difference. (People v. Bisda, G.R. No. 140895, 17 July 2003)

Waiver of the Right to have the Witness Sworn

The right may be waived. If a party admits proof to be taken in a case without an oath, after the testimony has
been acted upon by the court, and made the basis of a judgment, such party can no longer object to the
admissibility of the testimony. He will be deemed to have waived the objection. (People v. Bisda, G.R. No.
140895, 17 July 2003)

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Matters to be Recorded During Trial

The entire proceedings of a trial or hearing, including:

1. Questions propounded to a witness and his answers thereto; and
2. The statements made by the judge or any of the parties, counsel, or witnesses with reference to the case. ( Sec.
2, Rule 132, ROC, as amended)

Remember! These shall be recorded by means of shorthand or stenotype or by other means of recording found
suitable by the court. (Ibid.)

Exclusion and Separation of Witnesses

The court, motu proprio or upon motion, shall order witnesses excluded so that they cannot hear the testimony
of other witnesses. This rule does not authorize the exclusion of:
1. A party who is a natural person;
2. A duly designated representative of a juridical entity which is not a party to the case;
3. A person whose presence is essential to the presentation of the party’s cause; or
4. A person authorized by a statute to be present.

The court may also cause witnesses to be kept separate and to be prevented from conversing with one another,
directly through intermediaries, until all shall have been examined. (Sec. 15, Rule 132, ROC, as amended)

XPNs:
1. An accused in a criminal case as it is his constitutional right to be present at all stages of the
proceedings;
2. Parties to the litigation will generally not be excluded, their presence usually being necessary to a proper
management of the case;
3. Party in interest though not a party to the record and an agent of such party, if the presence of such agent
is necessary;
4. Officers and complaining witnesses are customarily excepted from the rule unless the circumstances
warrant otherwise; and
5. Expert witnesses are not excluded until production of evidence bearing upon the question or subject as
to which they have been called or unless liable to be influenced by the testimony of other witnesses.

Recantation of a Witness
Courts must not automatically exclude the original statement based solely on the recantation. It should
determine which statement should be given credence through a comparison of the original and the new
statements, applying the general rules of evidence. (PLDT v. Bolso, G.R. No. 159701, 17 Aug. 2007)

Rights of a witness (P-D-E-A-R)

1. To be Protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor;

Remember! The trial court’s duty is to protect every witness against oppressive behavior of an examiner and
this is especially true where the witness is of advanced age. (Lee v. CA, G.R. No. 177861, 13 July 2010)

2. Not to be Detained longer than the interests of justice require;

3. Not to be Examined except only as to matters pertinent to the issue;
4. Not to give an Answer which will tend to subject him or her to a penalty for an offense unless otherwise
provided by law (right against self- incrimination);
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NOTE: This refers to immunity statutes wherein the witness is granted immunity from criminal prosecution for
offenses admitted in his testimony, e.g., under Sec. 8, R.A. 1379, the law providing for the forfeiture of
unlawfully
acquired property; and under P.D. 749, in prosecutions for bribery and graft. (Regalado, 2008)

5. Not to give an answer, which will tend to degrade his or her Reputation, unless it be to the very fact at issue
or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his or her
previous final conviction for an offense. (Sec. 3, Rule 132, ROC, as amended)

Classifications of Immunity Statutes

USE IMMUNITY TRANSACTIONAL IMMUNITY

Prohibits the use of the witness’ compelled testimony Grants immunity to the witness from prosecution for
and its fruits in any manner in connection with the an offense to which his compelled testimony relates.
criminal prosecution of the witness.
It is immunity from prosecution by reason or on the
It is immunity from use of any statement given by the basis of the testimony.
witness.
By the grant of use-and-derivative-use immunity, a Transactional immunity is broader in scope of its
witness is only assured that his or her particular protection. By its grant, a witness can no longer be
testimony and evidence derived from it will not be prosecuted for any offense whatsoever arising out of
used against him or her in subsequent prosecution. the act or transaction to which the testimony relates.

Obligation of a Witness in Open Court

GR: A witness must answer questions, although his or her answer may tend to establish a claim against him or
her. (Sec. 3, Rule 132, ROC, as amended) Refusal to answer as a witness constitutes direct contempt. (Sec. 1,
Rule 71, ROC, as amended)

XPNs: A witness may validly refuse to answer on the basis of the following:
1. Right against self-incrimination – If his answer will tend to subject him to punishment for an offense; or

Remember! The constitutional assurance of the right against self-incrimination is a prohibition against the use
of physical or moral compulsion to extort communications from the accused. It is simply a prohibition against
legal process to extract from the accused’s own lips, against his will, admission of his guilt. (Ong v.
Sandiganbayan & Office of the Ombudsman, G.R. No. 126858, 16 Sept. 2005) Hence, a purely mechanical act
required to be done or produced from the accused is not covered by the right against self-incrimination.
(Beltran vs Samson, G.R. No. 32025, 23 Sept. 1929)

The privilege against self-incrimination must be invoked at the proper time, and the proper time to invoke it is
when a question calling for an incriminating answer is propounded. Also, a person who has been summoned to
testify cannot decline to appear, nor can he decline to be sworn as a witness and no claim of privilege can be
made until a question calling for an incriminating answer is asked. (Gonzales vs. Secretary of Labor, G.R. No.
L-6409, 05 Feb. 1954).

2. Right against self-degradation – If his answer will have a direct tendency to degrade his character.

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XPNs to the XPN: A witness may not invoke the right against self-degradation if: 1. Such question is directed to
the very fact at issue or to a fact from which the fact at issue would be presumed; or 2. If it refers to his previous
final conviction for an offense. (Regalado, 2008)

Remember! A witness invited by the Senate who refused to testify and arrested for contempt, cannot invoke the
right against self-incrimination in a petition for certiorari and prohibition. The said right may be invoked only
when the incriminating question is being asked, since he has no way of knowing in advance the nature or effect
of the questions to be asked of him. That this right may possibly be violated or abused is no ground for denying
the Senate Committees their power of inquiry. (In Re: Sabio, G.R. Nos. 174340, 174318 & 174177, 17 Oct.
2006)

Prohibition on Narrative Form Testimony

A witness’ testimony should be elicited by way of questions and answers. (Secs. 1 and 2, Rule 132, ROC, as
amended) Thus, if the witness does a narration instead of answering the question, the answer may be stricken
out upon objection. (Sec. 39, Rule 132, ROC, as amended) The reason is that if a witness testifies in narrative
form, the adverse party is deprived of the opportunity to object to the testimony beforehand. (Riguera, 2020)

XPN; The court may allow a child witness to testify in a narrative form. (Sec. 19, Rule on Examination of Child
Witness)

Refusal of a Witness to take the Witness Stand

GR: A witness may not refuse to take the witness stand.
XPNs:
1. An accused in a criminal case; or
2. A party who is not an accused in a criminal case is allowed not to take the witness stand – in administrative
cases/proceedings that partook of the nature of a criminal proceeding or analogous to a criminal proceeding. As
long as the suit is criminal in nature, the party thereto can altogether decline to take the witness stand. It is not
the character of the suit involved but the nature of the proceedings that controls. (Rosete, et. al. v. Lim, et. al.,
G.R. No. 136051, 08 June 2006)

Right against Self-incrimination NOT available under the Witness Protection Program
Any witness admitted into the program of the Witness Protection, Security and Benefit Act cannot refuse to
testify or give evidence or produce books, documents, records or writings necessary for the prosecution of the
offense or offenses for which he has been admitted into the Program on the ground of the constitutional right
against self-incrimination but he shall enjoy immunity from criminal prosecution and cannot be subjected to any
penalty or forfeiture for any transaction, matter or thing concerning his compelled testimony or books,
documents, records and writings produced. (Sec. 14, R.A. No. 6981)

Persons Eligible to the Witness Protection, Security and Benefit Program

Any person who has witnessed or has knowledge or information on the commission of a crime and has testified
or is testifying or about to testify before any judicial or quasi-judicial body, or before any investigating authority
may be admitted provided that:
a. The offense in which his testimony will be used is a grave felony as defined under the Revised Penal Code, or
its equivalent under special laws;
b. His testimony can be substantially corroborated in its material points;
c. He or any member of his family within the second civil degree of consanguinity or affinity is subjected to
threats to life or bodily injury or there is a likelihood that he will be killed, forced, intimidated, harassed or

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corrupted to prevent him from testifying, or to testify falsely, or evasively, because or on account of his
testimony; and
d. He is not a law enforcement officer, even if he would be testifying against the other law enforcement officers.
In such a case, only the immediate members of his family may avail themselves of the protection provided for
under the Act. (Sec. 3, R.A. No. 6981)

Q: As counsel of an accused charged with homicide, you are convinced that he can be utilized as a state witness.
What procedure will you take?
A: As counsel of an accused charged with homicide, I would ask the prosecutor to recommend that the accused
be made a state witness. It is the prosecutor who must recommend and move for the acceptance of the accused
as a state witness. The accused may also apply under the Witness Protection Program.

State Witness may be Liable for Contempt or Criminal Prosecution

If he fails or refuses to testify or to continue to testify without just cause when lawfully obliged to do so or if he
testifies falsely or evasively, he shall be liable to prosecution for perjury. If a State witness fails or refuses to
testify, or testifies falsely or evasively, or violates any condition accompanying such immunity without just
cause, as determined in a hearing by the proper court, his immunity shall be removed and he shall be subject to
contempt or criminal prosecution. Moreover, the enjoyment of all rights and benefits under R.A. 6981 shall be
deemed terminated. The witness may, however, purge himself of the contumacious acts by testifying at any
appropriate stage of the proceedings. (Sec. 13, R.A. No. 6981)

Order and Purpose of each stage of the examination of an Individual Witness

1. Direct examination – To elicit facts about the client’s cause of action or defense. (Riano, 2019)
2. Cross examination
a. To bring out facts favorable to counsel’s client not established by the direct testimony; and
b. To enable counsel to impeach or to impair the credibility of the witness. (Ibid.)
3. Re-direct examination

a. To afford opportunity to the witness to explain or supplement his answers given during the cross-
examination; and
b. To rehabilitate a witness whose credibility has been damaged. (Ibid.)

4. Re-cross examination
a. To overcome the proponent’s attempt to rehabilitate the witness; and
b. To rebut damaging evidence brought out during redirect examination.

Order of Examination
The order in which an individual witness may be examined is as follows;
1. Direct examination by the proponent.;
2. Cross-examination by the opponent.;
3. Re-direct examination by the proponent; and
4. Re-cross examination by the opponent. (Sec. 4, Rule 132, ROC, as amended)

Direct Examination
The examination-in-chief of a witness by the party presenting him or her on the facts relevant to the issue. (Sec.
5, Rule 132, ROC, as amended)
In light of the Judicial Affidavit Rule, most direct examinations are now in the form of a judicial affidavit .
(Riguera, 2020)
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Q: Tony states on direct examination that he once knew the facts being asked but he cannot recall them now.
When handed a written record of the facts, he testifies that the facts are correctly stated, but that he has never
seen the writing before. Is the writing admissible as past recollection recorded? Explain.

A: No. For the written record to be admissible as past recollection recorded, it must have been written or
recorded by Tony or under his direction at the time when the fact occurred, or immediately thereafter, or at any
other time when the fact was fresh in his memory and he knew that the same was correctly written or recorded.
(Sec. 16, Rule 132, ROC, as amended) But in this case, Tony has never seen the writing before.

Cross Examination
Upon the termination of the direct examination, the witness may be cross-examined by the adverse party on any
relevant matter, with sufficient fullness and freedom to test his or her accuracy and truthfulness and freedom
from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. (Sec 6, Rule 132,
ROC, as amended)

Scope of a Cross Examination

1. American rule - restricts cross-examination to facts and circumstances which are connected with the matters
that have been stated in the direct examination of the witness.

2. English rule – where a witness is called to testify to a particular fact, he becomes a witness for all purposes
and may be fully cross- examined upon all matters material to the issue, the examination not being confined to
the matters inquired about in the direct examination.

*Both rules are followed under Philippine jurisdiction. In general, the English Rule is being followed, which
allows the cross-examination to elicit all important facts bearing upon the issue (Sec. 6, Rule 132, ROC, as
amended) but this does not mean that a party, by doing so, is making the witness his own in accordance with
Sec. 5 of Rule 132. Conversely, the American Rule is being followed as to the accused or a hostile witness, who
may only be cross- examined on matters covered by the direct examination.

Doctrine of Incomplete Testimony

GR: When cross-examination cannot be done or completed due to causes attributable to the party who offered
the witness, the incomplete testimony is rendered incompetent and should be stricken from the record.
(Bachrach Motor Co., Inc. v. CIR, G.R. No. L-26136, 30 Oct. 1978)

XPN: Where the prosecution witness was extensively cross-examined on the material points and thereafter
failed to appear and cannot be produced despite a warrant of his arrest, the striking out is not warranted. (People
v. Gorospe, G.R. No. 51513, 15 May 1984)

Effect of Death or Absence of a Witness after the Direct Examination by the Proponent
1. If the witness was not cross-examined because of causes attributable to the cross-examining party and the
witness had always made himself available for cross-examination, the direct testimony of the witness shall
remain on record and cannot be stricken off because the cross- examiner is deemed to have waived his right to
cross-examine. (Dela Paz v. IAC, G.R. No. 71537, 17 Sept. 1987)

2. If the witness was partially cross-examined but died before the completion of his cross- examination, his
testimony on direct may be stricken out but only with respect to the testimony not covered by the cross-
examination. (People v. Señeris, G.R. No. L-48883, 06 Aug. 1980)
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3. The absence of a witness is not sufficient to warrant the striking out of his testimony for failure to appear for
further cross-examination where the witness has already been sufficiently cross-examined, and the matter on
which cross- examination is sought is not in controversy.
(Ibid.)

GR: The party who offered the testimony of a witness is bound by such testimony.
XPNs:
1. In the case of a hostile witness;
2. Where the witness is the adverse party or the representative of a juridical person which is the adverse party;
and
3. When the witness is not voluntarily offered but is required by law to be presented by the proponent, as in the
case of subscribing witnesses to a will. (Regalado, 2008)

Re-Direct Examination
After the cross-examination of the witness has been concluded, he or she may be re-examined by the party
calling him or her, to explain or supplement his or he answers given during the cross- examination. (Sec. 7, Rule
132, ROC, as amended)

Q: On re-direct examination, may questions on matters not dealt with during the cross- examination be
allowed?
A: Yes. Questions on matters not dealt with during the cross-examination, may be allowed by the court in its
discretion.

Re-Cross Examination
Upon the conclusion of the re-direct examination, the adverse party may re-cross examine the witness on
matters stated in his or her re-direct examination, and also on such other matters as may be allowed by the court
in its discretion. (Sec. 8, Rule 132, ROC, as amended)
Recalling the Witness
GR: After the examination of a witness by both sides has been concluded, the witness cannot be recalled
without leave of court. Recalling a witness is a matter of judicial discretion and it shall be guided by the
interests of justice. (Sec. 9, Rule 132, ROC, as amended)

XPNs:
1. The examination has not been concluded; or
2. If the recall of the witness was expressly reserved by a party with the approval of the court. In these two cases
the recall of a witness is a matter of right. (Regalado, 2008)

Remember! Something more than the bare assertion of the need to propound additional questions is essential
before the court's discretion may rightfully be exercised to grant or deny recall. There must be a satisfactory
showing of some concrete, substantial ground for the recall. For instance, that particularly identified material
points were not covered in the cross-examination, or that particularly described vital documents were not
presented to the witness whose recall is prayed for, or that the cross-examination was conducted in so inept a
manner as to result in a virtual absence thereof. Absent such particulars, to repeat, there would be no foundation
for a trial court to authorize the recall of any witness. (People v. Rivera, G.R. No. 98376, 16 Aug. 1991)

LEADING AND MISLEADING QUESTIONS

Leading question
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It is one which suggests to the witness the answer which the examining party desires. A leading question is
generally not allowed. (Sec. 10, Rule 132, ROC, as amended)

The test whether a question is leading or not is the suggestiveness of the conduct.

When a leading question is allowed (C-U-P-D-A-J)

A leading question is allowed:
1. On Cross-examination;
2. Of an Unwilling witness or hostile witness;
3. On Preliminary matters;
4. When there is Difficulty in getting direct and intelligible answers from a witness who is ignorant, or a child
of tender years, or is of feeble mind, or a deaf-mute;

Remember! A witness may be considered as unwilling or hostile only if so declared by the court upon adequate
showing of his or her adverse interest, unjustified reluctance to testify or his or her having misled the party into
calling him or her to the witness stand. (Sec. 13, Rule 132, ROC, as amended)

5. Of a witness who is an Adverse party or an officer, director, or managing agent of a public or private
corporation or of a partnership or association which is an adverse party; (Sec. 10, Rule 132, ROC, as amended);

6. A child of tender years may be asked leading questions; (Sec. 10(c), Rule on Examination of a Child Witness,
A.M. No. 004-07-SC)

7. In all stages of examination of a child if the same will further the interests of justice. (Sec. 20, Rule on
Examination of a Child Witness, A.M. No. 004-07-SC)

Misleading Question
A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to that
which he or she has previously stated. It is NOT allowed. (Sec. 10, Rule 132, ROC, as amended)
Impeachment of witness
It is a technique employed usually as part of cross- examination to discredit a witness by attacking his
credibility. (Riano, 2019)

Ways of Impeaching an Adverse Party’s Witness

1. By contradictory evidence;
2. By evidence that his or her general reputation for truth, honesty or integrity is bad; or
3. By evidence that he or she has made at other times statements inconsistent with his or her present
testimony. (Sec. 11, Rule 132, ROC, as amended)

Remember! An adverse party’s witness may not be impeached by evidence of particular wrongful acts, except
that it may be shown by the examination of the witness, or record of the judgment, that he or she has been
convicted of an offense. (Ibid.)

The other modes of impeaching a witness are:

1. By involving him during cross-examination incontradiction;
2. By showing the impossibility or improbabilityof his testimony;
3. By proving action or conduct of the witness inconsistent with his testimony; and
4. By showing bias, interest or hostile feeling against the adverse party. (Herrera, 1999)
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Impeachment by Evidence of Conviction of Crime
GR: For the purpose of impeaching a witness, evidence that he or she has been convicted by final judgment of a
crime shall be admitted if:

1. The crime was punishable by a penalty in excess of one (1) year; or

2. The crime involved moral turpitude, regardless of the penalty.

XPN: Evidence of a conviction is not admissible if the conviction has been the subject of an amnesty or
annulment of the conviction. (Sec. 12, Rule 132, ROC, as amended)

Impeachment of a Witness by Evidence of Particular Wrongful Acts

GR: A witness may NOT be impeached by evidence of particular wrongful acts.
XPN: If it may be shown by the examination of the witness, or the record of the judgment, that he or she has
been convicted of an offense. (Sec. 11, Rule 132, ROC, as amended)

Impeachment by a Party of his of his or her Own Witness

GR: The party presenting the witness is not allowed to impeach the credibility of such witness.
XPN: The witness is an:
1. Unwilling or hostile;

Remember! A witness may be considered as unwilling or hostile only if so declared by the court upon showing
adequate showing of his or adverse interest, unjustified reluctance to testify, or his or her having misled the
party into calling him or her to the witness stand.
2. Adverse party; or
3. Officer, director, or managing agent of a public or private corporation or of a partnership or
association which is an adverse party. (Sec. 13, Rule 132, ROC, as amended)

Remember! In these instances, such witnesses may be impeached by the party presenting him or her in all
respects as if he had been called by the adverse party, except by evidence of his or her bad character. (Ibid.)

Impeachment of the Adverse Party as a Witness

That the witness is the adverse party does not necessarily mean that the calling party will not be bound by the
former’s testimony. The fact remains that it was at his instance that his adversary was put on the witness stand.
He is not bound only in the sense that he may contradict him by introducing other evidence to prove a statement
of facts contrary to what the witness testifies. (Gaw v. Chua, G.R. No. 160855, 16 Apr. 2008)

Unlike an ordinary witness, the calling party may impeach an adverse witness in all respects as if he had been
called by the adverse party, except by evidence of his bad character. Under a rule permitting the impeachment of
an adverse witness, although the calling party does not vouch for the witness’ veracity, he is nonetheless bound
by his testimony if it is not contradicted or remains unrebutted. (Ibid.)

How the Witness is Impeached by Evidence of Inconsistent Statements (Laying the Predicate)
It is the duty of a party trying to impugn the testimony of a witness by means of prior or subsequent inconsistent
statements, whether oral or in writing, to give the witness a chance to reconcile his conflicting declarations,
such that it is only when no reasonable explanation is given by him that he should be deemed impeached.
(People v. Sambahon, G.R. No. 182789, 03 Aug. 2010)

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Laying the Predicate in Impeaching a Witness by Evidence of Prior Inconsistent Statements
1. The prior inconsistent statements must be related to him or her, with the circumstances of the times and
places and the persons present;
2. The witness must be asked whether he or she made such statements, and if so, be allowed to explain them;
and
3. If the statements be in writing it must be shown to the witness before any question is put to him or her
concerning them. (Sec. 14, Rule 132, ROC, as amended)

Remember! Contradicting testimony given subsequently does not necessarily discredit the previous testimony
if the contradiction is satisfactorily explained. There is no rule which states that a previous testimony is
presumed to be false merely because a witness now says that the same is not true. A testimony solemnly given
in court should not be lightly set aside. Before this can be done both the previous testimony and the subsequent
ne should be carefully scrutinized – in other words, all the expedients devised by man to determine the
credibility of witnesses should be utilized to determine which of the two contradicting testimonies represents
the truth. (OCA v. Morante, A.M. No. P-02-1555, 16 Apr. 2004)

As between statements made during the preliminary investigation of the case and the testimony of a witness in
open court, the latter deserves more credence. Preliminary investigations are commonly fairly summary or
truncated in nature, being designed simply for the determination, not of guilt beyond reasonable doubt, but of
probable cause prior to the filing of an information in court. (People v. Buduhan, G.R. No. 178196, 06 Aug.
2008)

Inapplicability of the Rule

If the prior inconsistent statement appears in a deposition of the adverse party, and not a mere witness, that
adverse party who testifies may be impeached without laying the predicate, as such prior statements are in the
nature of admissions of said adverse party. (Regalado, 2008)

The reasons for laying the predicate are:

1. To avoid unfair surprise to the adversary;
2. To save time, as an admission by the witness may make the extrinsic proof necessary; and
3. To give the witness, in fairness to him, a chance to explain the discrepancy. (Herrera, 1999)

CONTRADICTORY EVIDENCE PRIOR INCONSISTENT STATEMENTS

Refer to other testimony of the same witness, or other Refer to the statements, oral or documentary, made
evidence presented by him in the same case, but not by the witness sought to be impeached on occasions
the testimony of another witness. other than the trial in which he is testifying

Evidence of the Good Character of a Witness

GR: Evidence of the good character of a witness is not admissible for the purpose of proving action in
conformity therewith on a particular occasion. (Sec.54, Rule 130, ROC, as amended)

XPNs:

1. In Criminal cases:
a. The character of the offended party may be proved if it tends to establish in any reasonable degree the
probability or improbability of the offense charged.
b. The accused may prove his or her good moral character, pertinent to the moral trait involved in the
offense charged. However, the prosecution may not prove his or her bad moral character unless on rebuttal.
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(Sec. 54, Rule 130, ROC, as amended)

2. In Civil cases:
Evidence of the moral character of a party in a civil case is admissible only when pertinent to the issue of
character involved in the case. (Sec. 54, Rule 130, ROC, as amended)

3. In Criminal and Civil cases

Evidence of the good moral character of a witness is not admissible until such character has been
impeached. (Sec. 54, Rule 130, ROC, as amended)

Remember! in all cases in which evidence of character or a trait of character of a person is admissible, proof
may be made by testimony as to reputation or by testimony in the form of an opinion. In cases in which
character or a trait of character of a person is an essential element of a charge, claim or defense, proof may also
be made of specific instances of that person’s conduct. (Sec. 54, Rule 130, ROC, as amended)

When the Witness may Refer to Memorandum

A witness may be allowed to refresh his or her memory respecting a fact by anything written or recorded by
himself or herself, or under his or her direction, at the time when the fact occurred, or immediately thereafter, or
at any other time when the fact was fresh in his or her memory and he or she knew that the same was correctly
written or recorded. (Sec. 16, Rule 132, ROC, as amended)

Remember! The writing or record must be produced and may be inspected by the adverse party, who may, if he
or she chooses, cross-examine the witness upon it and may read it in evidence. (Ibid.)

Remember! A witness may also testify from such a writing or record, though he or she retains no recollection of
the particular facts, if he or she is able to swear that the writing or recording correctly stated the transaction
when made. Such evidence must be received with caution. (Ibid.)

PRESENT RECOLLECTION REVIVED PAST RECOLLECTION RECORDED

Applies if the witness remembers the facts regarding Applies where the witness does not recall the facts
his entries involved.
Requisites: Requisites:
1. Memorandum has been written by him or 1. Witness retains no recollection of the particular
under his direction; and facts; and
2. Written by him: 2. But he is able to swear that the record or writing
a. When the fact occurred or immediately correctly stated the transaction when made.
thereafter; or
b. At any other time when the fact was fresh
in his memory and he knew that the same
was correctly recorded.
Entitled to greater weight Entitled to lesser weight
Evidence is the testimony Evidence is the writing or record (the memorandum)
Rule of evidence affected is competency of witness, Rule of evidence affected is the best evidence rule
examination of witness (laying the predicate)
The witness simply testifies that he knows that the Witness must swear that the writing correctly states
memorandum is correctly written by him or under his the transaction.
direction. There is no need to swear that the writing
correctly states the transaction.
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Right of the adverse party when a writing is shown to a witness
Whenever a writing or record is shown to a witness, it must be produced and may be inspected by the adverse
party, who may, if he or she chooses, cross-examine the witness upon it and may read it in evidence (Sec.28,
Rule 132, ROC, as amended)

RULE ON EXAMINATION OF CHILD WITNESS

(A.M. No. 004-07-SC)
The rule shall govern the examination of child witnesses in all criminal and non-criminal proceedings of
children who are: (V-A-W)
1. Victims;
2. Accused; and
3. Witnesses to a crime.

Child witness
1. Any person who at the time of giving testimony is below the age of 18 years old; or
2. A person over 18 years of age, if he/she is found by the court as unable to fully take care of himself or protect
himself from abuse, neglect, cruelty, exploitation or discrimination because of physical or mental disability or
condition. (Sec. 4(a), A.M. No. 004-07-SC)

Presumption of Competency
GR: Every child is presumed qualified to be a witness. The burden of proof to rebut such presumption lies in the
party challenging his competence.

XPN: When the court finds that substantial doubt exists regarding the ability of the child to perceive,
remember, communicate, distinguish from falsehood, or appreciate the duty to tell the truth in court, the
judge shall conduct a competency examination of a child. (Sec. 6, A.M. No. 004-07-SC)

Examination of a Child Witness

The examination of a child witness presented in a hearing or any proceeding shall be done in open court. Unless
the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the
witness shall be given orally. (Sec. 8, A.M. No. 004-07-SC)
Videotaped Deposition
The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be taken of the testimony
of the child and that it be recorded and preserved on videotape. If the court finds that the. child will not be able
to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by
videotape. (Sec. 27, A.M. No. 004-07-SC)

Live-link TV Testimony
The court may order by an application may be made by the prosecutor, counsel or guardian ad litem for the
testimony of the child to be taken in a room outside the courtroom and be televised to the courtroom by live-link
television, if there is a likelihood that the child would suffer trauma from testifying in the presence of the
accused, his counsel or the prosecutor as the case may be. (Sec. 25, A.M. No. 004-07-SC; Riano, 2019)

Upon an application made by the prosecutor, counsel or guardian ad litem, the court may order for the
testimony of the child to be taken in a room outside the courtroom and be televised to the courtroom by live-link

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television, if there is a likelihood that the child would suffer trauma from testifying in the presence of the
accused, his counsel
or the prosecutor as the case may be. (Sec. 25, A.M. No. 004-07-SC)

The kind of trauma contemplated is trauma that would impair the completeness or truthfulness of the testimony
of the child.

Hearsay Exception in Child Abuse Cases

A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under
the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding. In ruling on the
admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof
which provide sufficient indicia of reliability. It shall consider the following factors:
a. Whether there is a motive to lie;
b. The general character of the declarant child;
c. Whether more than one person heard the statement;
d. Whether the statement was spontaneous;
e. The timing of the statement and the relationship between the declarant child and witness;
f. Cross-examination could not show the lack of knowledge of the declarant child;
g. The possibility of faulty recollection of the declarant child is remote; and
h. The circumstances surrounding the statement are such that there is no reason to suppose the declarant child
misrepresented the involvement of the accused. (Sec. 28, A.M. No. 004-07-SC)

Sexual Abuse Shield Rule

GR: The following evidence is not admissible in any criminal proceeding involving alleged child sexual
abuse:
a. Evidence offered to prove that the alleged victim engaged in other sexual behavior; and
b. Evidence offered to prove the sexual predisposition of the alleged victim.

XPN: Evidence of specific instances 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. (Sec. 30, A.M. No.
004-07-SC)

Protective Order
Any videotape or audiotape of a child that is part of the court record shall be under a protective order that
provides as follows:
1. Tapes may be viewed only by parties, their counsel, their expert witness, and the guardian ad litem.
2. No tape, or any portion thereof, shall be divulged by any member of the court staff, the prosecuting attorney,
the defense counsel, the guardian ad litem, agents of investigating law enforcement agencies, and other persons
as determined by the court to any other person, except as necessary for the trial.

3. No person shall be granted access to the tape, its transcription or any part thereof unless he signs a written
affirmation that he has received and read a copy of the protective order; that he submits to the jurisdiction of the
court with respect to the protective order; and that in case of violation thereof, he will be subject to the contempt
power of the court.

4. Each of the tape cassettes and transcripts thereof made available to the parties, their counsel, and respective
agents shall bear the following cautionary notice: "This object or document and the contents thereof are subject
to a protective order issued by the court in (case title), (case number). They shall not be examined, inspected,
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read, viewed, or copied by any person, or disclosed to any person, except as provided in the protective order. No
additional copies of the tape or any of its portion shall be made, given, sold, or shown to any person without
prior court order. Any person violating such protective order is subject to the contempt power of the court and
other penalties prescribed by law."

5. No tape shall be given, loaned, sold, or shown to any person except as ordered by the court.

6. Within thirty (30) days from receipt, all copies of the tape and any transcripts thereof shall be returned to the
clerk of court for safekeeping unless the period is extended by the court on motion of a party.

7. This protective order shall remain in full force and effect until further order of the court. (Sec. 31, A.M. No.
004-07-SC)

Q: AA, a twelve-year-old girl, while walking alone met BB, a teenage boy who befriended her. Later, BB
brought AA to a nearby shanty where he raped her. The Information for rape filed against BB states: “On or
about October 30, 2015, in the City of S.P. and within the jurisdiction of this Honorable Court, the accused, a
minor, 15 years old with lewd design and by means of force, violence, and intimidation, did then and there,
willfully, unlawfully and feloniously had sexual intercourse with AA, a minor, 12 years old, against the latter’s
will and consent.” At the trial, the prosecutor called to the witness stand AA as his first witness and manifested
that he be allowed to ask leading questions in conducting his direct examination pursuant to the Rule on the
Examination of a Child Witness. BB’s counsel objected on the ground that the prosecutor has not
conducted a competency examination on the witness, a requirement before the rule cited can be applied in
the case. Is BB’s counsel correct?

A: No. BB’s counsel is not correct. Every child is presumed qualified to be a witness. (Sec. 6, A.M. No. 004-
07-SC) To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party
challenging his competence. Here, AA, a 12-year old child witness who is presumed to be competent, may be
asked leading questions by the prosecutor in conducting his direct examination pursuant to the RECW and the
Revised Rules on Criminal Procedure. (People v. Santos, G.R. No. 171452, 17 Oct. 2008) In order to obviate the
counsel’s argument on the competency of AA as prosecution witness, the judge motu proprio conducted his voir
dire examination of AA.

2. AUTHENTICATION AND PROOF OF DOCUMENTS

Meaning of Authentication
It is the process of proving the due execution and genuineness of a document.

Remember! Not only objects but also documents introduced in evidence need to be authenticated. It is a
preliminary step in showing the admissibility of an evidence. (Riano, 2019)

When Authentication is NOT Required

1. The writing is an ancient document (Sec. 21, Rule 132, ROC, as amended);
2. The writing is a public document or record (Sec.19, Rule 132, ROC, as amended);
Remember! A private document required by law to be recorded, while it is transformed into a public document
by the “public record” thereof, is not included in this enumeration. Such recording does not make the private
writing itself a public document so as to make it admissible without authentication, e.g., birth certificate
recorded in the NSO is a public record, but it is still a private document. (Peralta & Peralta, 2020)
3. The writing is a notarial document acknowledged, proved or certified (Sec. 30, Rule 132, ROC, as amended);

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4. The genuineness and authenticity of an actionable document have not been specifically denied under oath by
an adverse party (Sec 8,Rule 8, ROC, as amended);
5. When such genuineness and due execution are immaterial to the issue;
6. The genuineness and authenticity of the document have been admitted (Sec 4, Rule 129, ROC, as amended);
and
7. The document is not being offered as genuine. (Sec. 20, Rule 132, ROC, as amended)

Classes of Documents
For purposes of their presentation in evidence, documents are either public or private. (Sec. 19, Rule 132, ROC,
as amended)

PUBLIC DOCUMENT PRIVATE DOCUMENT

What comprises it
The written official acts, or records of the official acts All other writings are private. (Sec.19, Rule 132,
of the sovereign authority, official bodies and ROC, as amended)
tribunals, and public officers, whether of the
Philippines, or of a foreign country
2. Documents acknowledged before a notary public
except last wills and testaments;
3. Documents that are considered public documents
under treaties and conventions which are in force
between the Philippines and the country of source;
and
4. Public records, kept in the Philippines, of private
documents required by law to be entered therein.
(Sec. 19, Rule 132, ROC, as amended)
As to authenticity and admissibility as evidence
Admissible as evidence without need of further proof Before any private document offered as authentic is
of its genuineness and due execution received in evidence, its due execution and
authenticity must first be proved.
As to persons bound
Evidence even against third persons, of the fact Binds only the parties who executed them or their
which gave rise to its due execution and to the date of privies, insofar as due execution and date of the
the latter document are concerned.
As to validity of certain transactions
Certain transactions must be contained in a public
document; otherwise, they will not be given any
validity.

NOTE: Church registries of births, marriages and deaths are no longer public writings nor are they kept by duly
authorized public officials. They are private writings and their authenticity must therefore be proved, as are all
other private writings in accordance with the rules. (Llemos v. Llemos, G.R. No. 150162, 26 Jan. 2007)

How to Prove the Due Execution and Authenticity of a Private Document

Before any private document offered as authentic is received in evidence, its due execution and authenticity
must be proved by any of the following means:
1. By anyone who saw the document executed or written;

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2. By evidence of the genuineness of the signature or handwriting of the maker; or
3. By other evidence showing its due execution and authenticity,

Any other private document need only be identified as that which it is claimed to be. (Sec. 20, Rule 132, ROC,
as amended)

Related jurisprudence
In addition to the modes of authenticating a private document under Sec. 20, Rule 132 of the ROC, as amended,
American jurisprudence also recognizes the doctrine of self-authentication – where the facts in writing could
only have been known by the writer; and the rule of authentication by the adverse party – where the reply of the
adverse party refers to and affirms the sending to him and his receipt of the letter in question, a copy of which
the proponent is offering as evidence. (Regalado, 2008)

When Evidence of Authenticity of a Private Writing is NOT Required

1. When the private document is more than thirty (30) years old (ancient document/authentic document rule)
(Sec. 21, Rule 132, ROC, as amended);
2. When the genuineness and authenticity of an actionable document have not been specifically denied under
oath by the adverse party;
3. When the genuineness and authenticity of the document have been admitted; and
4. When the document is not offered as authentic as implied. (Patula v. People, G.R. No. 164457, 11 Apr. 2012)

Requisites of Ancient Document/Authentic Document Rule

1. That the private document be more than 30 years old;
2. That it be produced from a custody in which it would naturally be found if genuine; and

Remember! Ancient documents are considered from proper custody if they come from a place from which they
might reasonably be expected to be found. Custody is proper if it is proved to have had a legitimate origin or if
the circumstances of the particular case are such as to render such an origin probable. If a document is found
where it would not properly and natural be, its absence from the proper place must be satisfactorily accounted
for. The requirement of proper custody was met when the ancient document in question was presented in court
by the proper custodian thereof who is an heir or the person who would naturally keep it. (Cerado-Siga v.
Cerado, Jr., G.R.No. 185374, 11 Mar. 2015)

3. That it is unblemished by any alteration or circumstances of suspicion. (Sec. 21, Rule 132, ROC, as
amended)

Remember!
This rule applies only if there are no other witnesses to determine authenticity.

Genuineness of Handwriting
Handwriting may be proved by:
1. A witness who actually saw the person writing the instrument;
2. A person who is familiar or has acquired knowledge of the handwriting of such person, his opinion as to the
handwriting being an exception to the opinion rule;
3. A comparison by the court of the questioned handwriting from the admitted genuine specimens thereof; or
4. An expert witness. (Secs. 20 & 22, Rule 132; Sec. 52, Rule 130, ROC, as amended)

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Remember! The law makes no preference, much less distinction among and between the different means stated
above in proving the handwriting of a person. Courts are not bound to give probative value or evidentiary value
to the opinions of handwriting experts, as resort to handwriting experts is not mandatory. (Heirs of Salud v.
Rural Bank of Salinas, G.R. No. 202756, 06 Apr. 2016)

Comparison as a Mode of Authentication

Use of comparison technique to establish authenticity actually involves two (2) levels of authentication, i.e.,
authentication of the specimen and authentication of the offered exhibit. In order to establish the requisite
connective relevance, the item or document in question must be compared with an item the authenticity of
which has been demonstrated. Authenticity of the specimen, then, is a logical prerequisite to the procedure.
(Peralta &
Peralta, 2020)

The testimony of a handwriting expert is not indispensable to the examination or the comparison of
handwritings in cases of forgery. The judge must conduct an examination of the questioned signature in
order to arrive at a reasonable conclusion as to its authenticity. The opinions of handwriting experts are not
binding upon courts, especially when the question involved is mere handwriting similarity or dissimilarity,
which can be determined by a visual comparison of specimens of the questioned signatures with those of the
currently existing ones. (Pontaoe v. Pontaoe, G.R. Nos. 159585 & 165318, 22 Apr. 2008)

It is also hornbook doctrine that the opinions of handwriting experts, even those from the NBI and the PC, are
not binding upon courts. This principle holds true especially when the question involved is mere handwriting
similarity or dissimilarity, which can be determined by a visual comparison of specimens of the questioned
signatures with those of the currently existing ones. (Multi-International Business Data System, Inc. v.
Martinez, G.R. No. 175378, 11 Nov. 2015)

Handwriting experts are usually helpful in the examination of forged documents because of the technical
procedure involved in analyzing them. But resort to these experts is not mandatory or indispensable to the
examination or the comparison of handwriting. A finding of forgery does not depend entirely on the testimonies
of handwriting experts, because the judge must conduct an independent examination of the questioned signature
in order to arrive at a reasonable conclusion as to its authenticity. (Ibid.)

Public Documents as Evidence

When a public officer in the performance of his or her duty makes an entry in the public record, the document
of such entry is deemed prima facie evidence of the facts stated in the entry. (Sec. 24, Rule 132, ROC, as
amended) Its probative value may either be substantiated or nullified by other competent evidence.

Remember! Public or official records of entries made in excess of official duty are not admissible in evidence.
As to matters which the officer is not bound to record, his certificate, being extrajudicial, is merely the
statement of a private person.

Related Jurisprudence
The CENRO and Regional Technical Director, FMS- DENR, certifications do not fall within the class of public
documents contemplated in the first sentence of Section 23 of Rule 132. The certifications do not reflect entries
in public records made in the performance of a duty by a public officer, such as entries made by the Civil
Registrar in the books of registries, or by a ship captain in the ship’s logbook. The certifications are conclusions
unsupported by adequate proof, and thus have no probative value. Certainly, the certifications cannot be

113
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considered prima facie evidence of the facts stated therein. (Republic v. T.A.N. Properties Inc., G.R. No.
154953, 26 June 2008)

Q: G&S Transportation submits that the USAID Certification being a private document cannot be admitted as
evidence since it is inadmissible and was not properly authenticated nor identified in court by the signatory
thereof. The opposing party contends that the USAID Certification is a public document and was properly
admitted in evidence, because Jose Marcial’s widow, witness Ruby Bueno Ochoa, was able to competently
testify as to the authenticity and due execution of the said Certification and that the signatory Jonas Cruz
personally issued and handed the same to her. The court ruled that the USAID Certification is a public
document. Is the court’s ruling correct?

A: Yes. The USAID Certification is a public document, hence, does not require authentication. Sec. 19 (a), Rule
132 of the Rules of Court provides that public documents are the written official acts, or records of the
official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the
Philippines, or of a foreign country. Here, USAID is an official government agency of a foreign country, the
United States. The authenticity and due execution of said Certification are already presumed. The USAID
Certification could very well be used as basis for the award for loss of income to the heirs . (Heirs of Jose
Marcial Ochoa v. G & S Transport Corporation, G.R. No. 170071, 16 July 2012)

Q: Sharwin purchased a townhouse from Riel. A notarized Deed of Absolute Sale was executed by Riel in favor
of Sharwin. The same was also notarized and the purchase price was paid in full. However, it was later found
that all of the documents that were in Sharwin's possession were falsified. A case was then filed by Sharwin
against Riel which was dismissed by the RTC for lack of merit. On appeal, the CA held that since a notarized
document enjoys the presumption of regularity, and only clear, strong, and convincing evidence can rebut such
presumption, the evidence presented by Riel was not enough to refute the notarized Deed of Absolute Sale. The
Motion for Reconsideration filed by Riel was also denied by the CA. Thus, a petition was filed before the SC
questioning the
CA's decision. Is the CA correct in upholding the sale on the basis of the presumption of regularity of the
supposedly notarized Deed of Absolute Sale?

A: No. In Suntay v. Court of Appeals, the Court held though the notarization of the deed of sale in question vests
in its favor the presumption of regularity, it is not the intention nor the function of the notary public to validate
and make binding an instrument never, in the first place, intended to have any binding legal effect upon the
parties thereto. The intention of the parties still and always is the primary consideration in determining the true
nature of a contract.

Notarization per se is not a guarantee of the validity of the contents of a document. The presumption of
regularity of notarized documents cannot be made to apply and may be overthrown by highly questionable
circumstances, as may be pointed out by the trial court. (Dizon v. Matti, Jr. G.R. No. 215614, 27 Mar. 2019)

Proof of Official Record

Official records are written official acts, or records of the official acts of the sovereign authority, official bodies
and tribunals, and public officers, e.g., a written foreign law. Official records may be evidenced by:
1. If it is within the Philippines:
a. An official publication thereof; or
b. By a copy attested by the officer having the legal custody of the record, or by his deputy. (Sec. 24, Rule 132,
ROC, as amended)

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2. If the office in which the record is kept is in a foreign country,
a. An official publication thereof; or
b. By a copy attested by the officer having the legal custody of the record, or by his deputy and a certificate that
such officer has the custody. (Apostille Certificate or its equivalent) (Sec. 24, Rule 132, ROC, as amended)

Remember! If the office in which the record is kept is in a foreign country, which is a contracting party to a
treaty or convention to which the Philippines is also a party, or considered a public document under such treaty
or convention pursuant to paragraph (c) of Section 19, the certificate or its equivalent shall be in the form
prescribed
by such treaty or convention subject to reciprocity granted to public documents originating from the Philippines.
For documents originating from a foreign country which is not a contracting party to a treaty or convention, the
certificate may be made by a secretary of the embassy or legation, consul general, consul, vice- consul, or
consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in
which the record is kept, and authenticated by the seal of his or her office. (Sec. 24, Rule 132, ROC, as
amended)

A document that is accompanied by a certificate or its equivalent may be presented in evidence without further
proof, the certificate or its equivalent being prima facie evidence of the due execution and genuineness of the
document involved. The certificate shall not be required when or convention between a foreign country and the
Philippines has abolished the requirement or has exempted the document itself from this formality.

Remember! Upon failure to comply with the above- mentioned requirements, courts will apply the
doctrine of processual presumption.

Q: Ellen Harper and her son, Jonathan Harper filed a case for damages against Shangri-La Hotel and Resort,
Inc. for the death of Christian Harper. To prove heirship of the plaintiffs- appellees, they presented several
documents (Birth Certificates, Marriage Certificate, and Certificate from the Oslo Probate Court) which were all
kept in Norway. The documents had been authenticated by the Royal Norwegian Ministry of Foreign Affairs
and bore the official seal of the Ministry and signature of one Tanja Sorlie. The documents were also
accompanied by an Authentication by the Consul, Embassy of the Republic of the Philippines in Stockholm,
Sweden to the effect that, Tanja Sorlie was duly authorized to legalize official documents for the Ministry.
Shangri-La Hotel however, questioned their filiation with the deceased assailing that the documents presented
were incompetent for failing to comply with the requirement of authentication. Is the contention correct?

A: NO. Although the documents were not attested by the officer having the legal custody of the record or by his
deputy in the manner required in Section 25 of Rule 132, and said documents did not comply with the
requirement under Section 24 of Rule 132 to the effect that if the record was not kept in the Philippines a
certificate of the person having custody must accompany the copy of the document that was duly attested
stating that such person had custody of the documents, the deviation was not enough reason to reject the utility
of the documents for the purposes they were intended to serve. That rules of procedure may be mandatory in
form and application does not forbid a showing of substantial compliance under justifiable circumstances,
because substantial compliance does not equate to a disregard of basic rules. For sure, substantial compliance
and strict adherence are not always incompatible and do not always clash in discord. (Makati Shangri-La Hotel
and Resort, Inc. v. Harper, G.R. No. 189998, 29 Aug. 2012)

Special power of attorney executed abroad

A special power of attorney (SPA) executed before a city judge-public notary in a foreign country, without the
certification or authentication required under Section 25, Rule 132 of the Rules of Court, is not admissible in
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evidence in Philippine courts. The failure to have the SPA authenticated is a question of jurisdiction. (Riano,
2019 citing Lopez v. CA, G.R. No. 77008, 29 Dec. 1987)

Irremovability of Public Records

GR: Any public record must not be removed from the office in which it is kept.
XPN: Upon order of a court where the inspection of the record is essential to the just determination of a pending
case. (Sec. 26, Rule 132, ROC, as amended)

REASON: They have a common repository, from where they ought not to be removed. Besides, these records
by being daily removed would be in great danger of being lost.

RATIONALE: They have a common repository, from where they ought not to be removed. Besides, these
records, by being daily removed, would be in great danger of being lost.

Attestation of a Copy
The attestation must state, in substance:
1. That the copy is a correct copy of the original, or a specific part thereof, as the case may be; and
2. It must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having
a seal, under the seal of such court. (Sec. 25, Rule 132, ROC, as amended)

Proof of Public Record of a Private Document

1. By the original record; or
2. By a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such
officer has the custody. (Sec. 27, Rule 132, ROC, as amended)

Proof of Lack of Record

Proof of lack of record of a document consists of written statement signed by an officer having custody of an
official record or by his deputy. The written statement must contain the following matters:
1. There has been a diligent search of the record; and
2. That despite the diligent search, no record of entry of a specified tenor is found to exist in the records of his
office.

Remember! The written statement must be accompanied by a certificate that such officer has the custody of
official records. (Sec. 28, Rule 132, ROC, as amended) The certification to be issued by the Local Civil
Registrar must categorically state that the document does not exist in his or her office or the particular entry
could not be found in the register despite diligent search. (Sevilla v. Cardenas, G.R. No. 167684, 31 July 2006)

Impeachment of a Judicial Record

Any judicial record may be impeached by: (W-C-F)
1. Want of jurisdiction in the court or judicial officer;
2. Collusion between the parties (e.g., legal separation, annulment cases); or
3. Fraud in the party offering the record, in respect to the proceedings. (Sec. 29, Rule 132, ROC, as amended)

Remember! Fraud refers to extrinsic fraud, which is a ground for annulment of judgment.

Q: Lino was charged with illegal possession of firearm. During trial, the prosecution presented in evidence a
certification of the PNP Firearms and Explosives Office attesting that the accused had no license to carry any

116
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shall be subjected to criminal prosecution and administrative charges.
firearm. The certifying officer, however, was not presented as a witness. Is the certification of the PNP
Firearm
and Explosives Office without the certifying officer testifying on it admissible in evidence against Lino?

A: Yes. Section 28, Rule 130 provides that “a written statement signed by an officer having the custody of an
official record or by his deputy that after diligent search, no record or entry of a specified tenor is found to exist
in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the
records of his office contain no such record or entry.”

The records of the PNP Firearm and Explosives Office are a public record. Hence, notwithstanding that the
certifying officer was not presented as a witness for the prosecution, the certification he made is admissible in
evidence against Lino. (Sec. 28, Rule 130; Mallari v. Court of Appeals, G.R. No. 110569, 09 Dec. 1996)

Proof of Notarial Documents

Documents acknowledged before a notary public is considered a public document and enjoy the presumption of
regularity. A notarized document is entitled to full faith and credit upon its face. The document may be
presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of
the execution of the instrument or document involved. (Sec. 30, Rule 132, ROC, as amended)

Evidentiary Weight of a Notarial Document

A notarial document celebrated with all the legal requisites under a notarial certificate is evidence of a high
character, and to overcome its recitals, it is incumbent upon the party challenging it to prove his claim with clear
and convincing evidence.

Q: Etom, Jr. filed a case for illegal dismissal and money claims against his employer Aroma Lodging House.
The Labor Arbiter and NLRC found him to have been legally dismissed but ordered the employer to pay
punitive damages, salary differential, holiday pay and 13th month pay. CA reversed the ruling stating that for
having executed an earlier notarized affidavit stating that he received wages above the required minimum
salary, Etom, Jr. could not subsequently claim that he was underpaid by his employer. Is the presumption of
regularity of notarized documents disputable?

A: Yes. While a notarized document is presumed to be regular, such presumption is not absolute and may be
overcome by clear and convincing evidence to the contrary. The fact that a document is notarized is not a
guarantee of the validity of its contents. Here, Etom, Jr. is an unlettered employee who may not have understood
the full import of his statements in the affidavit. Notably, he, along with a co-worker did not state the specific
amount of what they referred as salary above the minimum required by law. The employer’s mere reliance on
the foregoing affidavit is misplaced because the requirement of established jurisprudence is for the employer to
prove payment, and not merely deny the employee’s accusation of nonpayment on the basis of the latter’s own
declaration. (Etom Jr. v. Aroma Lodging House, G.R. No. 192955. 09 Nov. 2015)

Alterations in a Document
A party producing a document as genuine which has been altered and appears to have been altered after its
execution must account for the alteration. He or she may show that the alteration: (A-C-I-D)
1. Was made by Another, without his concurrence;
2. Was made with the Consent of the parties affected by it;
3. Was otherwise properly or innocently made; or
4. Did not change the meaning or language of the instrument.

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shall be subjected to criminal prosecution and administrative charges.
NOTE: Failure to do at least one of the above will make the document inadmissible in evidence. (Sec. 31, Rule
132, ROC, as amended)

Documentary Evidence in an Unofficial Language

Documents written in an unofficial language shall not be admitted as evidence unless accompanied with a
translation into English or Filipino. (Sec. 33, Rule 132, ROC, as amended)

The requirement that documents written in an unofficial language must be accompanied with a translation in
English or Filipino as a prerequisite for its admission in evidence must be insisted upon by the parties at the trial
to enable the court, where a translation has been impugned as incorrect, to decide the issue. Where such
document, not so accompanied with a translation in English or Filipino, is offered in evidence and not objected
to, either by the parties or the court, it must be presumed that the language in which the document is written is
understood by all, and the document is admissible in evidence. (Heirs of Doronio v. Heirs of Doronio, G.R. No.
169454, 27 Dec. 2007)

3. OFFER AND OBJECTION

GR: The court shall consider only the evidence which has been formally offered. The purpose for which the
evidence is offered must be specified. (Sec. 34, Rule 132, ROC, as amended)

XPNs:
1. Marked exhibits not formally offered may be admitted provided it complies with the following
requisites:
a. Must be duly identified by testimony duly recorded; and
b. Must have been incorporated in the records of the case; (Ramos v. Dizon, G.R. No. 137247, 06 Aug.
2006)
2. Under the Rule on Summary Procedure, where no full-blown trial is held in the interest of speedy
administration of justice;
3. In summary judgments under Rule 35 where the judge based his decisions on the pleadings, depositions,
admissions, affidavits and documents filed with the court;
4. Documents whose contents are taken judicial notice of by the court;
5. Documents whose contents are judicially admitted;
6. Object evidence which could not be formally offered because they have disappeared or have become lost
after they have been marked, identified and testified on and described in the record and became the subject of
cross- examination of the witness who testified on them during the trial; (Tabuena v. CA, G.R. No. 85423, 06
May 1991) or
7. Documents and affidavits used in deciding quasi-judicial or administrative cases. (Bantolino v. Coca-Cola
Bottlers Inc., G.R. No. 153660, 10 June 2003)

Purposes 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; and
3. To lay basis for appeal so that the appellate court can decide intelligently. (Regalado, 2008)

Remember! A formal offer is necessary, since judges are required to base their findings of fact and their
judgment solely and strictly upon the evidence offered by the parties at the trial. (Aludos v. Suerte, G.R. No.
165285, 18 June 2012)

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To allow parties to attach any documents to their pleadings and then expect the court to consider it as evidence,
even without formal offer and admission, may draw unwarranted consequences. Opposing parties will be
deprived of their chance to examine the document and to object to its admissibility. On the other hand, the
appellate court will have difficulty reviewing the documents not previously scrutinized by the court below.
(Candido v. Court of Appeals, G.R. No. 107493, 01 Feb. 1996)

Remember! An offer of evidence is important because the court shall consider no evidence which has not
been formally offered. (Riguera, 2020)

Reasons for Stating Purposes of Offer of Evidence

1. For the court to determine whether that piece of evidence should be admitted/considered or not; and
2. For the adverse party to interpose the proper objection.

Remember! It is basic in the law of evidence that the court shall consider evidence solely for the purpose for
which it was offered. (Ragudo v. Fabella Estate Tenants Assoc. Inc., G.R. No. 146823, 09 Aug. 2005)

Identification of a Documentary Evidence vs. Formal Offer as an Exhibit

IDENTIFICATION OF A DOCUMENTARY FORMAL OFFER AS AN EXHIBIT

EVIDENCE
Done in the course of the trial and accompanied by Done only when the party rests its case.
the marking of the evidence as an exhibit

Q: Gizel filed a complaint for recovery of possession and damages against Fara. In the course of the trial, Gizel
marked his evidence but his counsel failed to file a formal offer of evidence. Fara then presented in evidence tax
declarations in the name of his father to establish that his father is a co-owner of the property. The court ruled in
favor of Fara, saying that Gizel failed to prove sole ownership of the property in the face of Fara’s evidence.
Was the court correct?

A: Yes. The court shall consider no evidence which has not been formally offered. The trial court rendered
judgment considering only the evidence offered by Fara. The offer is necessary because it is the duty of the
judge to rest his findings of fact and his judgment only and strictly upon the evidence offered by the parties at
the trial. (People v. Pecardal, G.R. No. 71381, 24 Nov. 1986)

Q: Aiza and Matet were charged with murder. Upon application of the prosecution, Matet was discharged from
the Information to be utilized as a State witness. The prosecutor presented Matet as witness but forgot to state
the purpose of his testimony much less offer it in evidence. Matet testified that she and Aiza conspired to kill the
victim but it was Aiza who actually shot the victim.

The testimony of Matet was the only material evidence establishing the guilt of Aiza. Matet 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 grounds:

a. The testimony of Matet should be excluded because its purpose was not initially stated and it was not
formally offered in evidence; and
b. Matet's testimony is not admissible against Aiza pursuant to the rule on "res inter alios acta."
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Rule on the motion for demurrer to evidence on the above grounds.
A:
1. The demurrer to evidence should be denied because the defense counsel did not object to her testimony
despite the fact that the prosecutor forgot to state its purpose and offer it in evidence. Moreover, the defense
counsel thoroughly cross-examined Matet and thus waived the objection.
2. The res inter alios acta rule does not apply because Matet testified in open court and was subjected to cross-
examination.

When to Make an Offer

TESTIMONIAL EVIDENCE DOCUMENTARY AND OBJECT EVIDENCE

The offer of the testimony of a witness in evidence The offer of documentary and object evidence shall
must be made at the time the witness is called to be made after the presentation of a party’s testimonial
testify. (Sec.35, Rule 132, ROC, as amended) evidence. (Sec.35, Rule 132, ROC, as amended)
Every time a new witness is called to testify, there The evidence is only offered once, after all the
must be an offer of evidence. testimonial evidence are offered and prior to the
resting of the case of a party.

Remember! The presentation of a documentary or

object evidence for marking and identification during
trial is not the offer contemplated in the rules.

*All evidence must be offered orally. (Sec. 35, Rule 132, ROC, as amended)

STAGES IN THE PRESENTATION OF DOCUMENTARY EVIDENCE

1. MARKING. The purpose is to facilitate the identification of the exhibit. It may be made during the pre-
trial or during the trial.
2. IDENTIFICATION. Presenting proof that the document being presented is the same as the one referred
to by the witness in his testimony.
3. AUTHENTICATION. Positive identification of the witness that the document presented is genuine and
has been duly executed or that it is neither spurious nor counterfeit nor executed by mistake or under
duress.
4. INSPECTION. Whenever a writing is shown to a witness, it may be inspected by the adverse party.
(Sec.18, Rule 132)
5. FORMAL OFFER OF EXHIBIT. After the termination of the testimonial evidence the proponent will
then make a formal offer and state the purpose for which the document is presented. (Sec.34, Rule 132)
6. OBJECTIONS. Objections to introduction of documentary evidence shall be made when it is formally
offered. (Sec.36, Rule 132)
7. TENDER OF EXCLUDED EVIDENCE/OFFER OF PROOF. Remedy of a party if the court
improperly excluded an otherwise admissible evidence. (Sec.40, Rule 132)

Ways of Impeaching the Evidence of the Proponent

1. By objection to offer of evidence (Sec. 36, Rule 132, ROC, as amended); or
2. By motion to strike out answer. (Sec. 39, Rule 132, ROC, as amended)

Purposes of Objections
1. To keep out inadmissible evidence that would cause harm to a client’s cause;
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2. To protect the record, i.e., to present the issue of inadmissibility of the offered evidence in a way that if the
trial court rules erroneously, the error can be relied upon as a ground for a future appeal;
3. To protect a witness from being embarrassed on the stand or from being harassed by the adverse counsel;
4. To expose the adversary’s unfair tactics like his consistently asking obviously leading questions;
5. To give the trial court an opportunity to correct its own errors and at the same time warn the court that a
ruling adverse to the objector may supply a reason to invoke a higher court’s appellate jurisdiction; and
6. To avoid a waiver of the inadmissibility of otherwise inadmissible evidence. (Riano, 2019)

Time when Objection Should be Made

Objection to evidence offered orally must be made immediately after the offer is made.
1. Objection to the testimony of a witness for lack of a formal offer – as soon as the witness begins to testify.
2. Objection to a question propounded in the course of the oral examination of a witness - as soon as the
grounds shall become reasonably apparent. (Sec. 36, Rule 132, ROC, as amended)

Remember! As a rule, failure to specify the grounds for the objection is in effect a waiver of the objection,
except where the evidence could not have been legally admitted for any purpose whatsoever. (People v. Singh,
45 Phil. 676)

The objection must be specific enough to adequately inform the court the rule of evidence or of substantive law
that authorizes the exclusion of evidence. (Riano, 2019)

Contemporaneous Objection Rule

It requires that a specific and timely objection be made to the admission of evidence. Objections to the
admission of evidence must be made seasonably, at the time it is introduced or offered, otherwise they are
deemed waived, and will not be entertained for the first time on appeal. (People v. Bañares, G.R. No. 68298, 25
Nov. 1986)

Kinds of objections
1. Irrelevant– The evidence being presented is not relevant to the issue (e.g., when the prosecution offers as
evidence the alleged offer of an insurance company to pay for the damages suffered by the victim in a homicide
case);

2. Incompetent – The evidence is excluded by law or rules (Sec. 3, Rule 128, ROC, as amended) (e.g., evidence
obtained in violation of the Constitutional prohibition against unreasonable searches and seizures);

3. Specific objections– e.g., parol evidence and best evidence rule;

4. General objections– e.g., continuing objections (Sec. 37, Rule 132, ROC, as amended)
a. objection to a question propounded in the course of the oral examination of the witness; and
b. objection to an offer of evidence in writing;

5. Formal– One directed against the alleged defect in the formulation of the question (e.g., ambiguous
questions, leading and misleading questions, repetitious questions, multiple questions, argumentative questions)
(Riano, 2019); and

6. Substantive– One made and directed against the very nature of evidence (e.g., parol, not the best evidence
hearsay, privileged communication, not authenticated, opinion, res inter alios acta). (Ibid.)

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Remember! Objections to admissibility of evidence cannot be raised for the first time on appeal. When a party
desires the court to reject the evidence offered, he must so state in the form of objection. Without objection, he
cannot raise the question for the first time on appeal. (People v. Salak, G.R. No. 181249, 14 Mar. 2011)

Rules on Continuing Objections

GR: When it becomes reasonably apparent in the course of the examination that the questions asked are of the
same class as those to which objection has been made (whether sustained or overruled), it shall not be necessary
to repeat the objection, it being sufficient for the adverse party to record his continuing objection to such class
of questions. (Sec. 37, Rule 132, ROC, as amended)

XPNs:
1. Where the question has not been answered, it is necessary to repeat the objection when the evidence is again
offered or the question is again asked;
2. Incompetency is shown later;
3. Where objection refers to preliminary question, objection must be repeated when the same question is again
asked during the introduction of actual evidence;
4. Objection to evidence was sustained but reoffered at a later stage of the trial;
5. Evidence is admitted on condition that its competency or relevancy be shown by further evidence and the
condition is not fulfilled, the objection formerly interposed must be repeated or a motion to strike out the
evidence
must be made; and
6. Where the court reserves the ruling on objection, the objecting party must request a ruling or repeat the
objection.

Ruling
The ruling on the objection must be given immediately after the objection is made, unless the court desires to
take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the
trial and at such time as will give the party against whom it is made an opportunity to meet the situation
presented by the ruling. (Sec. 38, Rule 132, ROC, as amended) However, if the objection is based on two or
more grounds, a ruling sustaining the objection on one or some of the must specify the ground or grounds
relied upon. (Ibid.)

Remember! The rulings of the trial court during the course of the trial are interlocutory in nature and may not be
the subject of separate appeals or review on certiorari but are assigned as errors and reviewed on appeal
properly taken from the decision rendered by the trial court. (Gatdula v. People, G.R. No. 140688, 26 Jan.
2001)

Q: Counsel Oliva objected to a question posed by opposing Counsel Diesta on the grounds that it was hearsay
and it assumed a fact not yet established. The judge banged his gavel and ruled by saying “Objection
Sustained”. Can Counsel Diesta ask for a reconsideration of the ruling?

A: Yes, Counsel Diesta may ask the Judge to specify the ground/s relied upon for sustaining the objection and
thereafter move its reconsideration thereof. (Sec. 38, Rule 132, ROC, as amended)

Modes of excluding inadmissible evidence

1. Objection – when the evidence is offered;

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Remember! Objections may be waived because the right to object is merely a privilege which the party
may waive. (People v. Martin, G.R. No.172069, 30 Jan. 2008) However, such waiver only extends to the
admissibility of the evidence. It does not involve an admission that the evidence possesses the weight attributed
to it by the offering party. (Riano, 2019)

2. Motion to strike out or expunge:

a. When the witness answers prematurely before there is reasonable opportunity for the adverse party to object,
and such objection is found to be meritorious;
b. When a question is not objectionable but the answer is not responsive;
c. When a witness testifies without a question being posed or testifies beyond limits set by the court;
d. When the witness does a narration instead of answering the question;
e. When the answers are incompetent, irrelevant, or improper (Sec. 39, Rule 132, ROC, as amended);
f. When the witness becomes unavailable for cross-examination through no fault of the cross-examining party;
g. When the testimony was allowed conditionally and the condition for its admissibility was not fulfilled
(Riano, 2019);
h. When a witness has volunteered statements in such a way that the party has not been able to object thereto; or
i. Uncompleted testimonies where there is no opportunity for the other party to cross- examination. (Ibid.)

Remember! A direct testimony given and allowed without a prior formal offer may not be expunged from the
record. When such testimony is allowed without any objection from the adverse party, the latter is estopped
from questioning the non- compliance with the requirement.

Tender of Excluded Evidence

When an attorney is not allowed by the court to present testimony which he thinks is competent, material and
necessary to prove his case, he must make an offer of proof. This is the method properly preserving the record
to the end that the question may be saved for purposes of review.

Remember! This rule is in preparation in the filing of an appeal. Moreover, the rule is that the offeror must
preserve such excluded evidence on his record and stating the purpose of such preservation, e.g., knowing that it
is relevant and must be admitted.

Purposes of Tender of Excluded Evidence

a. To allow the court to know the nature of the testimony or the documentary evidence and convince the trial
judge to permit the evidence or testimony; and
b. To create and preserve a record for appeal, should the judge be not persuaded to reverse his earlier ruling.
(Riano, 2019)

Even assuming that the trial court erroneously rejected the introduction as evidence of the CA Decision,
petitioner is not left without legal recourse. Petitioner could have availed of the remedy provided in Section 40,
Rule 132 where he could have included the same in his offer of exhibits. If an exhibit sought to be presented in
evidence is rejected, the party producing it should ask the courts permission to have the exhibit attached to the
record. (Catacutan v. People, G.R. No. 175991, 31 Aug. 2011)

Offer of Proof vs. Offer of Evidence

OFFER OF PROOF/TENDER OF EXCLUDED OFFER OF EVIDENCE

EVIDENCE
The process by which a proponent of an excluded Refers to testimonial, documentary or object
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 evidence tenders the same. Only resorted to if evidence that are presented or offered in court by a
admission is refused by the court for purposes of party so that
review on appeal. the court can consider his evidence when it comes to
the preparation of the decision.

How tender of excluded evidence is made

1. As to documentary or object evidence: It may have the same attached to or made part of the record. (Sec.
40, Rule 132, ROC, as amended)

Remember! The party should ask that evidence ruled out at the trial be attached to the record of case in order
that same may be considered on appeal. (Bañez v. CA, G.R. No. L-30351, 11 Sept. 1974)

2. As to oral evidence: It may state for the record the name and other personal circumstances of the witness and
the substance of the proposed testimony. (Sec. 40, Rule 132, ROC, as amended)

How offer of Evidence is Made

1. Before the court has ruled on the objection, in which case its function is to persuade the court to overrule the
objection or deny the privilege invoked;

2. After the court has sustained the objection, in which case its function is to preserve for the appeal the
evidence excluded by the privilege invoked; or

3. Where the offer of proof includes the introduction of documents, or any of the physical evidence, the same
should be marked for identification so that they may become part of the record. (Herrera, 1999)

When Offer of Proof is NOT Required

1. When the question to which an objection has been sustained clearly reveals on its face the substance, purpose
and relevancy of the excluded evidence;
2. When the substance, purpose and relevancy of the excluded evidence were made known to the court either in
the court proceedings and such parts appear on record; and
3. Where evidence is inadmissible when offered and excluded, but thereafter becomes admissible, it must be re-
offered, unless the court indicates that a second offer would be useless.

English Exchequer Rule vs. Harmless Error Rule

ENGLISH EXCHEQUER RULE HARMLESS ERROR RULE

It provides that a trial court's error as to the admission The appellate court will disregard an error committed
of evidence was presumed to have caused prejudice by the trial court in the admission of evidence unless
and therefore, almost automatically required new in its opinion, some substantial wrong or miscarriage
trial. of justice has been occasioned

Remember! We follow the harmless error rule, for in dealing with evidence improperly admitted in the trial,
courts examine its damaging quality and its impact to the substantive rights of the litigant. If the impact is slight
and insignificant, appellate courts disregard the error as it will not overcome the weight of the properly admitted
evidence against the prejudiced part. (People v. Teehankee Jr. G.R.Nos. 111206-08, 06 Oct.1995)

H. JUDICIAL AFFIDAVIT RULE

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 (A.M. No. 12-8-8-SC)

Scope and Answer where Applicable

This Rule shall apply to all actions, proceedings, and incidents requiring the reception of evidence before:
1. The MeTC, MTC in Cities, MTC, and the MCTC, and the Shari‘a Circuit courts;
NOTE: It shall not apply to small claims cases under A.M. No. 08-8-7-SC;

2. The RTC and the Shari‘a District Courts;

3. The Sandiganbayan, CTA, CA and the Shari‘a Appellate Courts;
4. The investigating officers and bodies authorized by the Supreme Court to receive evidence, including
the IBP; and
5. The special courts and quasi-judicial bodies, whose rules of procedure are subject to their existing rules of
procedure contravene the provisions of this Rule. (Sec. 1, JAR)

Remember! In civil cases (with the exception of small claims), the application of the JAR is mandatory
regardless of the amount of money claimed.

Effect of the Judicial Affidavit Rule (JAR) in the Philippine Judicial System
It signals a dramatic shift from a dominantly adversarial system to a mix adversarial and inquisitorial system.
(Associate Justice Roberto Abad)

Purpose of JAR
To decongest the courts of cases and to reduce delays in the disposition of cases.

Significance of the use of a Judicial Affidavit

The judicial affidavit shall take the place of direct testimonies of witnesses.

Notable Changes by the JAR

1. Testimonies are now allowed to be taken and kept in the dialect of the place provided they are subsequently
translated into English or Filipino. These will be quoted in pleadings in their original version with the English
or
Filipino translation in parenthesis provided by the party, subject to counter translation by opposing side.

2. In civil actions, the judicial affidavit rule requires the parties to lay their cards on the table before pre-trial by
submitting the judicial affidavits and documents of the parties and their witnesses and serving copies on the
adverse party at least 5 days before the pre- trial. No further stipulations of facts are needed at the pre-trial
since, by comparing the judicial affidavits of the opposing sides, the court will already see what matters they
agree and on what matters they dispute.

3. The court will already take active part in examining the witnesses. The judge will no longer be limited to
asking clarificatory questions; he can also ask questions that will determine the credibility of the witness,
ascertain the truth of his testimony and elicit the answers that the judge needs for resolving issues. (Associate
Justice Roberto Abad, supra)

Submissions in lieu of Direct Testimony

The following are the requirements of the JAR which the parties are bound to follow:

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The parties shall file with the court and serve on the adverse party, personally or by licensed courier service, not
later than 5 days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and
incidents, the following:
1. The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct testimonies; and
2. The parties' documentary or object evidence, if any, which shall be attached to the judicial affidavits and
marked as Exhibits A, B, C, and so on in the case of the complainant or the plaintiff, and as Exhibits 1, 2, 3,
and so on in the case of the respondent or the defendant. (Sec. 2, JAR)

Remember! Every pleading stating a party’s claims or defenses shall state, among others the summary of the
witnesses’ intended testimonies, provided that the judicial affidavits of said witnesses shall be attached to the
pleading and form an integral part thereof. Only witnesses whose judicial affidavits are attached to the pleading
shall be presented by the parties during trial. Except if a party presents meritorious reasons as basis for the
admission of additional witnesses, no other witnesses or affidavit shall be heard or admitted by the court. (Sec.
6, Rule 7, ROC, as amended)

Attachment of the Original Document as Documentary Evidence

A party or a witness may keep the original document or object evidence in his possession after the same has
been identified, marked as exhibit, and authenticated, but he must warrant in his judicial affidavit that the copy
or reproduction attached to such affidavit is a faithful copy or reproduction of that original. In addition, the
party or witness shall bring the original document or object evidence for comparison during the preliminary
conference with the attached copy, reproduction, or pictures, failing which the latter shall not be admitted.
(Ibid.)

Contents of a Judicial Affidavit

A judicial affidavit shall be prepared in a language known to the witness and, if not in English or Filipino,
accompanied by a translation in English or Filipino, and shall contain the following:
1. The name, age, residence or business address, and occupation of the witness;
2. The name and address of the lawyer who conducts or supervises the examination of the witness and the place
where the examination is being held;
3. A statement that the witness is answering the questions asked of him, fully conscious that he does so under
oath, and that he may face criminal liability for false testimony or perjury;
4. Questions asked of the witness and his corresponding answers, consecutively numbered, that:
a. Show the circumstances under which the witness acquired the facts upon which he testifies;
b. Elicit from him those facts which are relevant to the issues that the case presents; and
c. Identify the attached documentary and object evidence and establish their authenticity in accordance with the
Rules of Court;
5. The signature of the witness over his printed name;
6. A jurat with the signature of the notary public who administers the oath or an officer who is authorized by law
to administer the same. (Sec. 3, JAR); and
7. A sworn attestation by the lawyer who conducted or supervised the examination of the witness attesting to the
following:
a. He faithfully recorded or caused to be recorded the questions he asked and the corresponding answers that the
witness gave; and
b. Neither he nor any other person present or assisting him coached the witness regarding the latter's answers.
(Sec. 4, JAR)
Remember! A false attestation shall subject the lawyer to disciplinary action, including disbarment. (Sec.
4(b) JAR)

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Effect of Non-compliance with the Content and Attestation Requirements- the judicial affidavit shall not be
admitted by the court in evidence. (Sec. 10(c), JAR)

Remember! The above provision, however, does not absolutely bar the submission of a complaint replacement
judicial affidavit as long as the replacement shall be submitted before the hearing or trial and provided further
that the following requisites are met:

1. The submission shall be allowed only once;

2. The delay is for a valid cause;
3. The delay would not unduly prejudice the opposing party; and
4. The public or private counsel responsible for the preparation and submission of the affidavit pays a fine of
not less than ₱1,000.00 nor more than ₱5,000.00, at the discretion of the court.

Subpoena
The requesting party may avail himself of the issuance of a subpoena ad testificandum or duces tecum under
Rule 21 of the Rules of Court if the (a) government official or employee, or the (b) requested witness, who is
neither the witness of the adverse party nor a hostile witness: 1. Unjustifiably declines to execute a judicial
affidavit; or
2. Refuses without just cause to make the relevant books, documents, or other things under his control available
for copying, authentication, and eventual production in court. (Sec. 5, JAR)

Remember! Regardless of whether the requested witness, who is the adverse party’s witness, unjustifiably
declines to execute a judicial affidavit or refuses without just cause to present the documents, Section 5 cannot
be made to apply to him for the reason that he is included in a group of individuals expressly exempt from the
provision’s application. (Ng Meng Tamv. China Banking Corporation, G.R. No. 214054, 05 Aug. 2015)

Submission by the Prosecution of the Judicial Affidavit

The prosecution shall submit the judicial affidavits of its witnesses not later than five days before the pre-trial,
serving copies of the same upon the accused. The complainant or public prosecutor shall attach to the affidavits
such documentary or object evidence as he may have, marking them as Exhibits A, B, C, and so on. No further
judicial affidavit, documentary, or object evidence shall be admitted at the trial.

Trial
After submitting to the court and serving the adverse party a copy of the judicial affidavits, trial shall commence
as follows:
1. The party presenting the judicial affidavit of his witness in place of direct testimony shall state the purpose of
such testimony at the start of the presentation of the witness (Sec. 6, JAR);
2. The adverse party may move to disqualify the witness or to strike out his affidavit or any of the answers
found in it on ground of inadmissibility;

Remember! The court shall promptly rule on the motion and, if granted, shall cause the marking of any
excluded answer by placing it in brackets under the initials of an authorized court personnel, without prejudice
to the tender of excluded evidence under Sec. 40, Rule 132.

3. The adverse party shall have the right to cross- examine the witness on his judicial affidavit and on the
exhibits attached to the same (Sec. 7, JAR);

4. The party who presents the witness may examine him on re-direct;
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Remember! In every case, the court shall take active part in examining the witness to determine his credibility
as well as the truth of his testimony and to elicit the answers that it needs for resolving the issues.
5. Upon the termination of the testimony of his last witness, a party shall immediately make an oral offer of
documentary evidence, piece by piece, in their chronological order, stating the purpose or purposes for which he
offers the particular exhibit (Sec. 8, JAR);

6. After each piece of exhibit is offered, the adverse party shall state the legal ground for his objection, if any, to
its admission, and the court shall immediately make its ruling respecting that exhibit.

Remember! Since the documentary or object exhibits form part of the judicial affidavits that describe and
authenticate them, it is sufficient that such exhibits are simply cited by their markings during the offers, the
objections, and the rulings, dispensing with the description of each exhibit.

Application to Criminal Actions

The judicial affidavit rule shall apply to all criminal actions:
1. Where the maximum of the imposable penalty does not exceed six years;
2. Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved;
3. With respect to the civil aspect of the actions, whatever the penalties involved are. (Sec. 9, JAR)

Form of Testimony in Criminal Cases

(a) For First Level Courts
In all criminal cases, including those covered by the Rule on Summary Procedure, the testimonies of witnesses
shall consist of the duly subscribed written statements given to law enforcement or peace officers or the
affidavits or counter-affidavits submitted before the investigating prosecutor if such are not available,
testimonies shall be in the form of judicial affidavits, subject to additional direct and cross—examination
questions. The trial prosecutor may dispense with the sworn written statements submitted to the law
enforcement or peace officers and prepare the judicial affidavits of the affiants or modify or revise the said
sworn statements before presenting it as evidence.

(b) For Second Level Courts, Sandiganbayan and Court of Tax Appeals
In criminal cases where the demeanor of the witness is not essential in determining the credibility of said
witness, such as forensic chemists, medico-legal officers, investigators, auditors, accountants, engineers,
custodians, expert witnesses and other similar witnesses, who will testify on the authenticity, due execution and
the contents of public documents and reports, and in criminal cases that are transactional in character, such as
falsification, malversation, estafa, or other crimes where the culpability or innocence of the accused can be
established through documents, the testimonies of the witnesses shall be the duly subscribed written statements
given to law enforcement or peace officers or the affidavits or counter-affidavits submitted before the
investigating prosecutor, and if such are not available, testimonies shall be in the form of judicial affidavits,
subject to additional direct and cross- examination questions. In all other cases where the culpability or the
innocence of the accused is based on the testimonies of the alleged eyewitnesses, the testimonies of these
witnesses shall be in oral form. (Sec. 11, JAR)

Q: Can a party filing a criminal action cognizable by the Regional Trial Court be mandated to follow the
JAR?

A: No. The jurisdiction of the RTC in criminal cases includes offenses where the imposable penalty exceeds 6
years, thus, as a rule the JAR has no application except when the accused agrees to its use.
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Q: Is it mandatory on the part of the accused to submit a judicial affidavit?

A: No. Since the accused is already aware of the evidence of the prosecution, he has the option to submit or not
to submit his judicial affidavits. If the accused desires to be heard, he may submit his judicial affidavit as well
as those of his witnesses within ten days from receipt of the affidavits of the prosecution with service upon the
public and private prosecutor. (Sec. 9(c), JAR)

Q: The JAR took effect last January 1, 2013, but with some modification as to its applicability to criminal cases.
What are these modifications?

A: The JAR was modified only with respect to actions filed by public prosecutors, subject to the following
conditions:
1. For the purpose of complying with the Judicial Affidavit Rule, public prosecutors in the first and second level
courts shall use the sworn statements that the complainant and his or her witnesses submit during the initiation
of the criminal action before the office of the public prosecutor or directly before the trial court;
2. Upon presenting the witness, the attending public prosecutor shall require the witness to affirm what the
sworn statement contains and
may only ask the witness additional direct examination questions that have not been amply covered by the
sworn statement; and
3. This modified compliance does not apply to criminal cases where the complainant is represented by a duly
empowered private prosecutor. The private prosecutor shall be charged in the applicable cases the duty to
prepare the required judicial affidavits of the complainant and his or her witnesses and cause the service of the
copies of the same upon the accused.

Effect of Non-Compliance
GR: A party who fails to submit the required judicial affidavits and exhibits on time shall be deemed to have
waived their submission. (Sec. 10, JAR)

XPN: The court may, however, allow only once the late submission of the same provided, the delay is for a
valid reason, would not unduly prejudice the opposing party, and the defaulting party pays a fine of not less than
₱1,000.00 nor more than ₱5,000.00, at the discretion of the court. (Ibid.)

Appearance of the Witness at the Scheduled Hearing

The submission of the judicial affidavit of the witness does not exempt such witness from appearing at the
scheduled hearing. His appearance is necessary as the adverse party has the right to cross-examine him on his
judicial affidavit and the attached exhibits.

Remember! The court shall not consider the affidavit of any witness who does not appear in the scheduled
hearing of the case as required. As for the counsel, his failure to appear without a valid cause despite notice
shall be deemed to have waived his client’s right to confront by cross-examination, the witnesses present.

Effect on the Rules of Court and Rules of Procedure governing investigating officers and bodies
authorized by the Supreme Court to receive evidence

They are repealed or modified insofar as they are inconsistent with the provisions of the Judicial Affidavit Rule.
(Sec. 11, JAR) As to Rules of Procedure governing Quasi- judicial bodies which are Inconsistent with it They
are thereby disapproved. (Ibid.)
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Q: Pedro was charged with theft for stealing Juan's cellphone worth P20, 000.00. Prosecutor Marilag at the pre-
trial submitted the judicial affidavit of Juan attaching the receipt for the purchase of the cellphone to prove civil
liability. She also submitted the judicial affidavit of Mario, an eyewitness who narrated therein how Pedro stole
Juan's cellphone. At the trial, Pedro's lawyer objected to the prosecution's use of judicial affidavits of her
witnesses considering the imposable penalty on the offense with which his client was charged.

a. Is Pedro's lawyer correct in objecting to the judicial affidavit of Mario?

A: Yes, Pedro’s lawyer is correct in objecting to the judicial affidavit of Mario. The Judicial Affidavit Rules
shall apply only to criminal actions where the maximum of the imposable penalty does not exceed six years.
(Sec. 9(a)(1), A.M. No. 12-8-9-SC) Here, the maximum imposable penalty for the crime of theft of a cellphone
worth ₱20,000 is prison mayor in its minimum to medium periods, or six years and one day to eight years and
one day.

b. Is Pedro's lawyer correct in objecting to the judicial affidavit of Juan?

A: No. Pedro’s lawyer is not correct in objecting to the judicial affidavit of Juan because the Judicial Affidavit
Rules apply with respect to the civil aspect of the actions, regardless of the penalties involved. (Sec. 9, A.M. No.
12-8-8-SC) Here the judicial affidavit of Juan was offered to prove the civil liability of Pedro.

c. At the conclusion of the prosecution's presentation of evidence, Prosecutor Marilag orally offered the receipt
attached to Juan's judicial affidavit, which the court admitted over the objection of Pedro's lawyer. After Pedro's
presentation of his evidence, the court rendered judgment finding him guilty as charged and holding him civilly
liable for ₱20,000.00. Pedro's lawyer seasonably filed a motion for reconsideration of the decision asserting that
the court erred in awarding the civil liability on the basis of Juan's judicial affidavit, documentary evidence
which Prosecutor Marilag failed to orally offer. Is the motion for reconsideration meritorious?

A: No. The motion for reconsideration is not meritorious. The judicial affidavit is not required to be orally
offered as separate documentary evidence, because it is filed in lieu of the direct testimony of the witness. It is
offered, at the time the witness is called to testify, and any objection to it should have been made at the time the
witness was presented. (Secs. 6 and 8, A.M. No. 12-8-8-SC) Since the receipt attached to the judicial affidavit
was orally offered, there was enough basis for the court to award civil liability.

I. WEIGHT AND SUFFICIENCY OF EVIDENCE

(RULE 133)

Weight of Evidence
It is the probative value given by the court to particular evidence admitted to prove a fact in issue.

Degree of Evidence Required to Disprove the Prima Facie Case established by the Party having the
Burden of Proof

A prima facie case need not be countered by a preponderance of evidence nor by evidence of greater weight.
Defendant's evidence which equalizes the weight of plaintiff's evidence or puts the case in equipoise is
sufficient. As a result, plaintiff will have to go forward with the proof. Should it happen that at the trial the

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weight of evidence is equally balanced or at equilibrium and presumptions operate against plaintiff who has
burden of proof, he or she cannot prevail. (People v. Santiago, G.R. Nos. 137542-43, 20 Jan. 2004)

Guidelines in the Assessment of Credibility of a Witness

1. A witness who testified in clear, positive and convincing manner and remained consistent in cross-
examination is a credible witness; (People v. Comanda, G.R. No. 175880, 06 July 2007) and

2. Findings of fact and assessment of credibility of a witness are matters best left to the trial court that had the
front-line opportunity to personally evaluate the demeanor, conduct, and behavior of the witness while
testifying. (Sps. Paragas v. Heirs of Balacano, G.R. No. 168220, 31 Aug. 2005)

Q: Hesson was charged with Murder for the death of Fernando. Sario was the lone witness for the prosecution,
and he testified that he saw Junello hacked Fernando's body on the side using a bolo. Fernando lost
consciousness.
Hesson stabbed Fernando twice in the chest using a knife. Hesson then sliced open Fernando's chest and took
out the latter's heart using the same knife. Junello followed and took out Fernando's liver using a bolo. Hesson
and Junello went at large, but Hesson was arrested after a year. The RTC and the CA found Hesson guilty of
Murder. The accused argued that the testimony of Sario, being uncorroborated, does not sufficiently
establish his guilt beyond reasonable doubt. Is Hesson correct?

A: No. Sario's testimony, although uncorroborated, can be relied upon. The testimony of a lone eyewitness, if
found positive and credible by the trial court, is sufficient to support a conviction especially when the testimony
bears the earmarks of truth and sincerity and had been delivered spontaneously, naturally and in a
straightforward
manner. Witnesses are to be weighed, not numbered. Evidence is assessed in terms of quality and not quantity.
Corroborative evidence is deemed necessary only when there are reasons to warrant the suspicion that
the witness falsified the truth or that his observation had been inaccurate. (People v. Callao y Marcelino,
G.R. No. 228945, 14 Mar. 2018)

Q: In an Information, Christopher Pacu-An (petitioner) and co-accused Peter Romer Abao were charged with
homicide for the death of Zaldy Milad. Petitioner voluntarily surrendered to the police authorities. Petitioner
and Rommel entered a plea of not guilty. The RTC found petitioner guilty beyond reasonable doubt of the crime
of homicide. The CA affirmed the Decision of the RTC in convicting petitioner of the crime of Homicide.
Petitioner argues that the CA gravely erred when it upheld his conviction despite weak, inconsistent and
unreliable identification by the prosecution's witnesses. He claims that the inconsistent statements given by
Alicia should not be considered as a mere inconsistency that can be lightly overlooked. He points to the
inconsistency in Alicia's
Sinumpaang Salaysay taken during the night Zaldy was stabbed where Alicia stated that a witness informed her
that petitioner was the one who stabbed Zaldy. However, in her open court examination, Alicia testified that she
herself saw petitioner stab Zaldy. Is the petitioner guilty of the crime of homicide?

A: Yes. The discrepancy in Alicia's statements in her Sinumpaang Salaysay and her open court testimony was
explained by Alicia during her cross- examination. The Supreme Court sustained the finding of the CA that the
discrepancy in Alicia's statement in her Sinumpaang Salaysay did not diminish the probative value of her open
court testimony in positively identifying petitioner as the perpetrator of the crime of Homicide. In Madali v.
People, the Court held that slight inconsistencies in the declarations of witnesses hardly weaken the probative
value of the witnesses' open court testimony.

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The CA was correct in sustaining the ruling of the RTC regarding the probative value of Alicia's testimony in
positively identifying petitioner as the perpetrator of the crime. The Court agrees that the minor inconsistencies
in Alicia's Sinumpaang Salaysay were not sufficient to damage the essential integrity of the prosecution's
evidence in its material whole. Alicia's positive identification prevails over petitioner's defenses of denial and
alibi since the latter can be easily fabricated and is essentially unreliable. Further, Alicia's positive identification
was duly corroborated by Alvin's testimony. (Pacu-An v. People of the Philippines, G.R. No. 237542, 16 June
2021)

Hierarchy of quantum of evidence

1. PROOF BEYOND REASONABLE DOUBT- required to convict an accused. Moral certainty or that
the degree of proof which produces conviction in an unprejudiced mind. It does not demand absolute
certainty and the exclusion of all possibility of error.
2. CLEAR AND CONVINCING EVIDENCE- degree of proof which produces in the mind of the court a
firm belief or conviction as to the allegation sought to be established. Adduced to overcome a prima
facie case or a disputable presumption.
3. PREPONDERANCE OF EVIDENCE- degree of proof required in civil cases. Evidence which is of
greater weight or superior weight of evidence than that which is offered in opposition to it.
4. SUBSTANTIAL EVIDENCE-applicable in cases filed before administrative or quasi-judicial bodies.
Such relevant evidence as a reasonable mind might accept as adequate to support a conclusion

Remember! Evidence, to be worthy of credit, must not only proceed from a credible source but must also be
credible in itself. It must be natural, reasonable and probable as to make it easy to believe. (People v. Peruelo,
G.R. No. 50631, 29 June 1981)

Proof beyond Reasonable Doubt-does not mean such a degree of proof as, excluding possibility of error,
produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction
in an unprejudiced mind. (Sec. 2, Rule 133, ROC, as amended)

Moral Certainty- that degree of certainty which will justify the trial judge in grounding on it his verdict. It is a
certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are
bound to act conscientiously upon it.

Identity of the Accused must be Proved Beyond Reasonable Doubt

When the identity of the accused is not established beyond reasonable doubt, acquittal necessarily follows.
Conviction for a crime rests on the strength of the prosecution’s evidence, never on the weakness of that of
the defense. (People v. Jalon, G.R. No. 93729, 13 Nov. 1992)

Remember! In every criminal prosecution, the prosecution must prove two things:
1. The commission of the crime; and
2. The identification of the accused as the perpetrator of the crime. What is needed is positive identification
made with moral certainty as to the person of the offender. (People v. Maguing, G.R. No. 144090, 26 June
2003)

Q: Prosecution witnesses positively identified Johnny as the assailant of Chris. Hence, he was convicted of
Homicide. However, he contends that the State failed to present sufficient evidence against him in court. He
sufficed that should the knife he held during a fight against his longtime enemies, brothers Chris and Michael,
had been presented, it would show the difference that Chris’ knife, although smaller than Johnny’s, had more
blood stains but which size fits best on the mortal wound inflicted on himself. It would thereby be ascertained
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that Chris accidentally stabbed himself upon losing his balance during such aggressive fight. Is Johnny’s
contention meritorious?

A: No. The non-identification and non-presentation of the weapon actually used in the killing did not diminish
the merit of the conviction on the ground that other competent evidence and the testimonies of witnesses had
directly and positively identified and incriminated Johnny as the assailant of Chris. The presentation of the
weapon is not a prerequisite for conviction. Positive identification of the accused is sufficient for the judgment
of conviction despite the non-presentation of the weapon used in the commission of the offense. (Medina v.
People, G.R. No. 161308, 15 Jan. 2014)

Q: Tumbaga was watching a basketball game in Barangay Matingain, together with his uncle. When he was
about to board his parked motorcycle, he was shot twice at the back. Tumbaga was able to survive. Aliling's
alibi was that he was in another Barangay for a miting de avance. Aliling's defense witness, Bathan, also
testified that he was at the same basketball court on that night and he saw that Aliling was about to ride his
motorcycle when he was shot. However, Bathan did not see accused Hilario Aliling at the place when the
shooting happened and instead saw an unidentified man shot the private complainant. The RTC and the CA
found Aliling guilty and held
that the positive allegations of the prosecution witnesses prevailed over the denial and alibi of the defense
witnesses. Ailing argued that the testimonial evidence of the prosecution cannot be relied on as they were
inconsistent and incredible, especially against the eyewitness account of Bathan. Are the RTC and CA
correct?

A: No. Positive testimony is generally given more weight than the defenses of denial and alibi which are held to
be inherently weak defenses because they can be easily fabricated. While, indeed, the defense of denial or alibi
can be easily fabricated, the same can be said of untruthful accusations, in that they can be as easily concocted.
Thus, if found credible, the defenses of denial and alibi may be considered complete and legitimate defenses.
The burden of proof does not shift by the mere invocation of said defenses; the presumption of innocence
remains in favor of the accused. In alibi, the accused must prove not only that he was at some other place at the
time the crime was committed, but that it was likewise physically impossible for him to be at the scene of the
crime at the time thereof. In this case, the Court found that Ailing's alibi was straightforward, credible, and
corroborated by an impartial witness. Bolstering the alibi of Ailing is the eyewitness account of Bathan who
positively testified that he witnessed the shooting incident and saw that the culprit was not Aliling. (Aliling v.
People, G.R No. 230991, June 11, 2018)

Q: In 2005, Diosdado Sama y Hinupas, Demetrio Masanglay y Aceveda and Bandy Masanglay y Aceveda,
residents of Barangay Baras, Baco, Oriental Mindoro, cut with the use of unregistered power chainsaw, a Dita
tree. On arraignment, all three (3) accused pleaded not guilty. Thereafter, they filed a Motion to Quash
Information dated July 31, 2007, alleging among others, that they are members of the Iraya- Mangyan tribe, and
as such, are governed by Republic Act No. 8371, The Indigenous Peoples Rights Act of 1997 (IPRA). By Order
dated August 23, 2007, the motion was denied for being a mere scrap of paper. Trial followed. On August 24,
2010, the trial court convicted the accused. The trial court ruled that a dita tree with an aggregate volume of 500
board feet can be classified as "timber" within the purview of Section 68, now Section 771 of P.D. No. 705, as
amended. Thus, cutting the dita tree without a corresponding permit from the DENR or any competent authority
violated the law. The trial court further held that a violation of Section 77 of P.D. No. 705 constituted malum
prohibitum, and for this reason, the commission of the prohibited act is a crime in itself and criminal intent does
not have to be established. The Court of Appeals affirmed. Was his guilt proven beyond reasonable doubt?

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A: No. In practice, there is proof beyond a reasonable doubt where the judge can conclude: "All the above, as
established during trial, lead to no other conclusion than the commission of the crime as prescribed in the law."
The prosecution was not able to prove the guilt of petitioners beyond reasonable doubt. Section 77 of PD 705,
as amended, punishes, among others, "any person who shall cut, gather, collect, removed timber or other forest
products from any forest land, or timber from alienable or disposable public land, or from private land, without
any authority shall be punished with the penalties imposed under Articles 309 and 310 of the Revised Penal
Code...." There is, however, reasonable doubt that the dita tree was cut and collected without any authority
granted by the State. It is a general principle in law that in malum prohibitum case, good faith or motive is not a
defense because the law punishes the prohibited act itself. The penal clause of Section 77 of PD 705, as
amended punishes the cutting, collecting, or removing of timber or other forest products only when any of these
acts is done without lawful authority from the State. (Sama v. People, G.R. No. 224469, 05 Jan. 2021)

Preponderance of Evidence-means that the evidence adduced by one side is, as a whole, superior to or has
greater weight than that of the other. It means evidence which is more convincing to the court as worthy of
belief than that which is offered in opposition thereto. (Ava v. De Guzman, A.C. No. 7649, 14 Dec. 2011)

It is the weight, credit, and value of the aggregate evidence on either side and is usually considered to be
synonymous with the term “greater weight of the evidence” or “greater weight of the credible evidence.” It
means probability of the truth, evidence which is more convincing to the court as worthy of belief than that
which is offered in opposition thereto. (Philippine Commercial International Bank v. Balmaceda, G.R. No.
158143, 21 Sept. 2011)

Remember! A judgment cannot be entered in the plaintiff’s favor if his or her evidence still does not suffice to
sustain his cause of action.

Matters that the court may consider in determining whether there is preponderance of evidence
1. All the facts and circumstances of the case;
2. The witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to
which they are testifying, the nature of the facts to which they testify, the probability or improbability of their
testimony;
3. The witnesses’ interest or want of interest, and their personal credibility so far as the same may legitimately
appear upon the trial; and 4. The number of witnesses, though the preponderance is not necessarily with the
greater number. (Sec. 1, Rule 133, ROC, as amended)

Remember! To persuade by the preponderance of evidence is not to take the evidence quantitatively but
qualitatively. (Riano, 2019)

Related jurisprudence
In civil cases, only a preponderance of evidence or "greater weight of the evidence" is required. While the
charge invoices are not actionable documents per se, they provide details on the alleged transactions. These
documents need not be attached to or stated in the complaint as these are evidentiary in nature. In fact, the cause
of action is
not based on these documents but on the contract of sale between the parties. Here, the delivery of the supplies
and materials was duly proved by the charge invoices and purchase orders indicating that Asian Construction
indeed ordered supplies and materials from Highett and that these were delivered. (Asian Construction and
Development Corporation v. Mendoza, G.R. No. 176949, 27 June 2012)

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Q: Cathay hired Uy as material handling officer tasked with the sale of special assorted steel bars known as
retazos, authorized to accept cash payments directly from customers to be remitted immediately to Cathay's
treasury department. Sometime in March 2008, Cathay discovered that cash proceeds from the sale of retazos
for the month of February 2008 covered by several delivery receipts amounting to P409,280.00 were not
remitted to its treasury department. Uy's signature was on the delivery receipts. Cathay sent a demand letter for
payment of the amount covered by the questionable transactions, but Uy failed to pay or settle with Cathay.
Cathay filed a Complaint against Uy for Sum of Money and Damages. Cathay presented the delivery receipts,
also known as "scrap miscellaneous sales (SMS)," covering the five transactions when Uy allegedly authorized
the release of the retazos on a cash transaction basis, as well as the corresponding statements of account to
prove that during such transactions, Uy did not remit the payments to Cathay's treasury department. Was
Cathay able to prove by preponderance of evidence its cause of action against Uy?

A: Yes. In civil cases, the party having the burden of proof must establish its cause of action by a preponderance
of evidence, or that "evidence which is of greater weight or is more convincing than that which is in opposition
to it." Preponderance of evidence "does not mean absolute truth; rather, it means that the testimony of one side
is more believable than that of the other side, and that the probability of truth is on one side than on the other."
The guidelines in the determination of preponderance of evidence are provided under Section 1, Rule 133 of the
Rules of Court: SECTION 1. Preponderance of evidence, how determined. — In civil cases, the party having
the burden of proof must establish his [or her] case by a preponderance of evidence. In determining where the
preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts
and circumstances of the case, the witnesses' manner of testifying their intelligence, their means and
opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify,
the probability or improbability of their testimony, their interest or want of interest, and also their
personal credibility so far as the same legitimately appear upon the trial. The court may also consider the
number of witnesses, though the preponderance is not necessarily with the greater number. Thus, the
determination of preponderance of evidence depends greatly on the credibility of the witnesses. Hence, in
the evaluation of their testimonies, the courts must be guided by the well- settled doctrine that "[when it comes
to [the witnesses'] credibility, the trial court's assessment deserves great weight, and is even conclusive and
binding, unless the same is tainted with arbitrariness or oversight of some fact or circumstance of weight and
influence." Here, Cathay was able to prove that Uy authorized on four occasions the release of the retazos sold
on a cash transaction basis, for which he had the duty to accept cash payment, but failed to remit the payments
to Cathay's treasury department. (Cathay Pacific Steel Corporation v. Charlie Chua Uy, Jr., G.R. No. 219317,
14 June 2021)

Substantial Evidence- applies to cases filed before the administrative or quasi-judicial bodies and which
requires that in order to establish a fact, the evidence should constitute that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a conclusion. (Sec. 6, Rule 133, ROC). Substantial evidence
is more than mere scintilla. The requirement is satisfied where there is reasonable ground to believe that the
petitioner is guilty of the act or omission complained of, even if the evidence might not be overwhelming.
(Office of the Deputy Ombudsman for Luzon v. Dionisio, G.R. No. 220700, 10 July 2017)

Remember! In a petition for a writ of amparo, the parties shall establish their claims by substantial
evidence. (Sec 17, The Rule on the Writ of Amparo)

Clear and Convincing Evidence-it is that degree of evidence that produces in the mind of the trier of fact a
firm belief or conviction as to allegations sought to be established. It is intermediate, being more than
preponderance, but not to the extent of such certainty as is required beyond reasonable doubt as in criminal
cases. (Black’s Law Dictionary, 2004)
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Instances when Clear and Convincing Evidence is Required
1. When proving forgery (Citibank, N.A. v. Sabeniano, G.R. No. 156132, 06 Feb. 2007);
2. When proving ownership over a land in annulment or reconveyance of title (Manotok Realty, Inc. v. CLT
Realty Development Corp., G.R. No. 123346, 14 Dec. 2007);
3. When invoking self-defense, the onus is on the accused-appellant to establish by clear and convincing
evidence his justification for the killing (People v. Tomolin, G.R. No. 126650, 28 July 1999);
4. When proving the allegation of frame-up and extortion by police officers in most dangerous drug cases
(People v. Boco, G.R. No. 129676, 23 June 1999);
5. When proving physical impossibility for the accused to be at the crime scene when using alibi as a defense
(People v. Cacayan, G.R. No. 180499, July 9, 2008); (People v. Cacayan, G.R. No. 180499, 09 July 2008);
6. When using denial as a defense like in prosecution for violation of the Dangerous Drugs Act (People v.
Mustapa, G.R. No. 141244, 19 Feb. 2001);
7. To overcome the presumption of due execution of notarized instruments (Viaje v. Pamintel, G.R. No. 147792,
23 Jan. 2006)
8. When proving bad faith to warrant an award of moral damages (Resolution of the SC in Cual v. Leonis
Navigation, G.R. No. 167775, 10 Oct. 2005);
9. When proving that the police officers did not properly perform their duty or that they were inspired by an
improper motive (People v. Concepcion, G.R. No. 178876, 27 June 2008); or
10. When a person seeks confirmation of an imperfect or incomplete title to a piece of land on the basis of
possession by himself and his predecessors-in-interest, he must prove with clear and convincing evidence
compliance with the requirements of the applicable law (Republic v. Imperial Credit Corp., G.R. No. 173088,
25 June 2008; Riano, 2009); and
11. In granting or denying bail in extradition proceedings. (Government of Hongkong Special Administrative
Region v. Olalia, G.R. No. 153675, 19 Apr. 2007)

Remember! The list is NOT exclusive.

Q: Loraine filed a complaint before the Civil Service Commission Regional Office No. VIII (CSCRO VIII)
against several employees of the Professional Regulation Commission (PRC) Tacloban Office, including
Ayesha, for conflict of interest, grave abuse of authority, dishonesty and violation of graft and corrupt practices
and the Anti-Red Tape Act. PREMPC, a cooperative formed by some of the employees of the PRC, operates
inside the premises of PRC Tacloban Office. It provides photocopying services and sells mailing envelopes,
mail stamps and documentary stamps to PRC clients. On several instances, the above-mentioned employees left
their posts during office hours, took PRC forms (renewal, application for examination and oath forms),
documentary stamps, and window envelopes with mailing stamps from PRC office and sent them to PREMPC
to be sold to the latter's customers. CSCRO VIII issued a Formal Charge against Ayesha and Cedie finding a
prima facie case for the administrative offense of Grave Misconduct. CA directed Ayesha to submit
documents/pleadings that were not included inher petition for review. But due to her failure to do so, the CA
dismissed the petition for review without ruling on its merits. CA ruled that Ayesha failed to comply with its
Resolution which required hereto submit the lacking Exhibits "6" and "9" in her petition, within the period
required by law. Was it proper to dismiss the petition for review based on procedural grounds?

A: No. Cases shall be determined on the merits, after full opportunity to all parties for ventilation of their causes
and defenses, rather than on technicality or some procedural imperfections. The CSC's decisions were anchored
principally on the sole testimony of Loraine that Ayesha took PRC forms (renewal, application and oath forms)
from her and sent them to PREMPC to be sold. There was no evidence presented to show that Ayesha actually
delivered the forms to PREMPC. Likewise, there was no evidence to support the allegation that the forms were
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sold by Ayesha or PREMPC. In this case, CSC has relied solely on the evidence presented by Loraine without
taking into account the countervailing evidence established by Ayesha. (Sonia Mahinay v CA & Alma Genotiva,
G.R. 230355, 18 Mar. 2021)

Trial Court’s Findings as to the Credibility of Witnesses, Not Disturbed on Appeal

The trial court’s findings of fact will not be disturbed on appeal, unless there is a clear showing that it plainly
overlooked matters of substance which, if considered, might affect the results of the review. The credibility of
witnesses is best determined by the trial judge, who has the direct opportunity to observe and evaluate their
demeanor on the witness stand. (People v. Pacuancuan, G.R. No. 144589, 16 June 2003)

Uncorroborated Testimony of an Accused who turned into a State Witness Sufficient to Convict his Co-
accused
It may suffice to convict his co-accused if it is given in a straightforward manner and is full of details which by
their nature could not have been the result of deliberate afterthought, otherwise, it needs corroboration, the
presence or lack of which may ultimately decide the case of the prosecution and the fate of the accused. (People
v. Sunga, G.R. No. 126029, 27 Mar. 2003)

Sufficiency of Evidence- in determining the sufficiency of evidence, what matters is not the number of
witnesses but the credibility and the nature and quality of their testimonies. The testimony of a lone witness is
sufficient to support a conviction if found positive and credible. (Ceniza-Manantan v. People, G.R. No. 156248,
28 Aug. 2007)

Partial Credibility of a Witness- the testimony of a witness may be believed in part and disbelieved in another
part, depending on the probabilities and improbabilities of the case. (People v. Tan, G.R. No. 176526, 08 Aug.
2007)

Remember! If the testimony of the witness on a material issue is willfully false and given with an intention to
deceive, the court may disregard all the witness’ testimony under the Falsus in uno, falsus in omnibus rule.
(Riano, 2019) This is not a mandatory rule of evidence but is applied by the courts in its discretion. The court
may accept and reject portions of the witness’ testimony depending on the inherent credibility thereof.
(Regalado, 2008)

Falsus in uno, falsus in omnibus (in relation to Credibility of Witness)

Literally, falsus in uno, falsus in omnibus means “false in one thing, false in everything.” If the testimony of a
witness on a material issue is willfully false and given with an intention to deceive, the jury may disregard all
the witness’ testimonies. (Hargrave v. Stockloss, 127 N.J.L. 262, 21 A.2d 820, 823)

The principle of falsus in uno, falsus in omnibus is not strictly applied in this jurisdiction. It deals only with the
weight of the evidence and is not a positive rule of law. Modern trend in jurisprudence favors more flexibility
when the testimony of a witness may be partly believed and partly disbelieved depending on the corroborative
evidence presented at the trial. (People v. Negrosa, G.R. Nos. 142856-57, 25 Aug. 2003)

When the Maxim Falsus in uno, falsus in omnibus applies

1. That the false testimony is as to one or more material points; and
2. That there should be conscious and deliberate intention to falsify a material point. (People v. Pacapac, G.R.
No. 90623, 07 Sept. 1995)

Extrajudicial Confession is NOT Sufficient Ground for Conviction

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An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless
corroborated by evidence of corpus delicti. (Sec. 3, Rule 133, ROC, as amended)

When Circumstantial Evidence is Sufficient for Conviction

1. There are more than one circumstances;
2. The facts from which the inferences are derived are proven; and
3. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. (Sec.
4, Rule 133, ROC, as amended)

Remember! Inferences cannot be based on other inferences. (Sec. 4, Rule 133, ROC, as amended) The corollary
rule is that the circumstances proven must constitute an unbroken chain which leads to one fair and
reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person. (Trinidad v.
People, G.R. No. 192241, 13 June 2012)

Q: A criminal complaint for simple arson was filed against Allysa and she was convicted. Allysa then appealed.
She argued that none of the prosecution’s witnesses had positively identified her as the person who burned the
nipa hut. CA affirmed the Decision of the RTC in toto. Allysa moved for reconsideration but it was denied.
Thus, Allysa filed a Petition for Review on Certiorari arguing that the CA erred in upholding her conviction
based on circumstantial evidence, which, being merely based on conjecture, falls short of proving her guilt
beyond reasonable doubt. No direct evidence was presented to prove that she actually set fire to Marie’s nipa
hut. Moreover, there were two (2) incidents that occurred, which should be taken and analyzed separately. Is
Allysa guilty of simple arson?

A: Yes. The identity of the perpetrator of a crime and a finding of guilt may rest solely on the strength of
circumstantial evidence. The commission of a crime, the identity of the perpetrator, and the finding of guilt may
all be established by circumstantial evidence. The circumstances must be considered as a whole and should
create an unbroken chain leading to the conclusion that the accused authored the crime. The proven
circumstances must be "consistent with each other, consistent with the hypothesis that the accused is guilty, and
at the same time inconsistent with the hypothesis that he is innocent, and with every other rational hypothesis
except that of guilt." In this case, no one saw petitioner actually set fire to the nipa hut. Nevertheless, the
prosecution has established
multiple circumstances, which, after being considered in their entirety, support the conclusion that petitioner is
guilty beyond reasonable doubt of simple arson. (Marlon Bacerra vs. People of the Philippines, G.R. No.
204544, 03 July 2017)

Q: BBB testified that: she was a classmate in Kindergarten, friend and neighbor of the victim, five-year-old
AAA, who was fondly called Angel; she knows that Angel is now dead; the last time she saw Angel was when
she and Angel played with mud forming it into objects, underneath their house in Samar at noontime after class;
thereafter, they went to pick santol; they also went biking; then they went to pathway going to Angel's house;
Angel went to a place where there was a gemelina plant with Totoy [the nickname of Cabornay); she knows
Totoy who is from Barangay Atigawan because he was often seen in the house of Nay Goring, the grandmother
of Angel; their house and the house of Nay Goring are just near without any house in between; she kept on
looking at them (Totoy and Angel) headed to the direction of Brgy. Nabong, until they disappeared from her
view; she tried to pull Angel away from Totoy, but Angel was heavy; she ran because she was afraid, she might
be made to go with them; she went home, played some more and ate lunch; and, next time she saw Angel, Angel
was already inside their house, dead. BBB's testimony is corroborated by Abonger, her father. Further, the
prosecutions presented other witnesses. RTC convicted Carbonay of rape with homicide, but CA convicted him
only of attempted rape and homicide. Despite lack of direct evidence, may Carbonay be convicted?
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A: Yes. While it is a long-standing rule that medical finding is not an element of rape and cannot establish the
one responsible for the same, jurisprudence dictates that in the absence of a direct evidence, it is corroborative
of strong circumstantial evidence that the victim was raped. CA finds that Carbonay is guilty of attempted rape
with homicide, because the doctor did not declare that there was the slightest penetration of the victim's vagina
and the whitish discharge found by the doctor on the victim's vaginal canal was not tested for chemical analysis.
The medical examination on the samples taken from the vagina is not indispensable to an inference leading to
rape. However, based on the hematoma on the left inguinal area, as well as on the perineal area of the victim's
vagina, the position of the victim when she sustained the hematoma and the removed underwear one (1) meter
away from the victim, we are convinced that, at the very least, there was an attempt to rape the victim. Dr. Solis
testified that the perpetrator could have been trying his best to rape the victim. No other evidence indicates that
Carbonay succeeded in having a carnal knowledge of the victim. (People of the Philippines v Carbonay, G.R.
250649, 24 Mar. 2021)

Weight to be given Opinion of Expert Witness, How Determined

The court has wide latitude of discretion in determining the weight to be given to such opinion, and for that
purpose may consider the following:
a. Whether the opinion is based on sufficient facts or data;
b. Whether it is the product of reliable principles and methods;
c. Whether the witness has applied the principles and methods to the reliability of the facts of the case; and
d. Such other factors as the court may deem helpful to make such determination. (Sec. 5, Rule 133, ROC, as
amended)

Q: At 3:30 o'clock in the morning of June 21, 1997, Atilano Andong (Andong) was sleeping at home with his
common-law wife Marilou Gamboa (Gamboa) and their child. Suddenly, Quijano started banging on their door
and shouting Andong's name. When Andong rose from the bed, he was surprised to see Quijano standing 60
centimeters away from him, beaming a flashlight at him. Then, Quijano suddenly shot Andong on his right
shoulder. Gamboa pleaded for Quijano to stop. Andong's neighbors Chona Baguio (Baguio) and Rosemarie
Barrellano (Barrellano) heard a gunshot. They went outside of their house and saw Quijano holding a handgun.
Thereafter, they saw Andong blood-stained and with a wound on his right shoulder. Andong was rushed to the
hospital where he underwent an operation. He was treated by Dr. Prudencio Manubag (Dr. Manubag) and was
confined for more than two weeks. Is Quijano guilty of frustrated murder?

A: No. Quijano is not guilty of frustrated murder, but rather of attempted murder. In Serrano v. People, the
Court cautioned that the accused may not be convicted of frustrated homicide in the absence of clear evidence
establishing that the injury would have been fatal if not medically attended to. When nothing in the
evidence shows that the wound would be fatal without medical intervention, the character of the wound enters
the realm of doubt; under this situation, the doubt created by the lack of evidence should be resolved in favor of
the petitioner. Thus, the crime committed should be Thus, the crime committed should be attempted, not
frustrated, homicide. The victim's attending physician did not testify on the gravity of the wound inflicted on the
victim.

The evidence fails to prove with moral certainty that Andong would have died from the gunshot wound without
timely medical intervention. Unfortunately, the prosecution failed to present Dr. Manubag, the physician who
treated Andong and administered the alleged life-saving procedure. The Medical Certificate alone, without the
testimony of Dr. Manubag is inadequate proof of the nature and extent of Andong's injury. This lacuna may not
be filled with the testimony of the expert witness Dr. Paradela. While it is true that the prosecution and the
defense stipulated on the qualification of Dr. Paradela, this stipulation does not in any way mean that the Court
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must accord probative value and weight to his testimony. The stipulation solely pertained to the physician's
qualification was an expert witness being a medical doctor." It did not dispense with the prosecution's burden to
prove the elements of the offense.

Dr. Paradela's statement was so curt and wanting in essential details that he failed to furnish sufficient facts and
data relevant to the charge. Moreover, the fact that the RTC and the CA gave probative value to Dr. Paradela's
expert opinion does not in any way bind this Court to blindly adopt the same finding, especially in light of facts
warranting a different conclusion. (Quijano v. People, G.R. No. 202151, 10 Feb. 2021)

Alibi- it is a defense where an accused claims that he was somewhere else at the time of the commission of the
offense. It is one of the weakest defenses an accused may avail because of the facility with which it can be
fabricated, just like a mere denial. (People v. Esperanza, G.R. Nos. 139217-24, 27 June 2003) When this is the
defense of the accused, it must be established by positive, clear and satisfactory

Remember! A categorical and positive identification of an accused, without any showing of ill-motive on the
part of the eyewitness testifying on the matter, prevails over an alibi. (People v. Gingos and Margote, G.R. No.
176632, 11 Sept. 2007)

For the defense of alibi to prosper, the accused must show that:
1. He or she was somewhere else; and
2. It was physically impossible for him to be at the scene of the crime at the time of its commission
(People v. Gerones, et al., G.R. No. L-6595, 29 Oct. 1954)

Alibi may serve as basis for acquittal if it can really be shown by clear and convincing evidence that it was
indeed physically impossible for the accused to be at the scene of the crime at the time of commission. (People
v. Cacayan, G.R. No. 180499, 09 July 2008)

For the defense of alibi to prosper, the requirements of time and place must be strictly met. (Ibanez v. People,
G.R. No. 190798, 27 Jan. 2016)

Out-of-Court Identification
It is a means of identifying a suspect of a crime and is done thru:
1. Show-ups: where the suspect alone is brought face-to-face with the witness for identification;

Remember! Eyewitness identification is often decisive of the conviction or acquittal of an accused.

Identification of an accused through mug shots is one of the established procedures in pinning down criminals.
However, to avoid charges of impermissible suggestion, there should be nothing in the photograph that would
focus attention on a single person. (People v. Villena, G.R. No. 140066, 14 Oct. 2002)

2. Mug shots: where photographs are shown to the witness to identify the suspect; or

3. Line-ups: where a witness identifies the suspect from a group of persons lined up for the purpose. (People v.
Claudio Teehankee, Jr., G.R. Nos. 111206-08, 06 Oct. 1995)

Remember! A police line-up is merely a part of the investigation process by police investigators to
ascertain the identity of offenders or confirm their identification by a witness to the crime. Police officers
are not obliged to assemble a police line-up as a condition sine qua non to prove the identity of an offender. If,

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on the basis of the evidence on hand, police officers are certain of the identity of the offender, they need not
require any police line-up anymore. (Tapdasan, Jr. v. People, G.R. No. 141344, 21 Nov. 2002)

Q: Tumbaga was watching a basketball game in Barangay Matingain, together with his uncle. When he was
about to board his parked motorcycle, he was shot twice at the back. Tumbaga was able to survive. Aliling's
alibi was
that he was in another Barangay for a miting de avance. Aliling's defense witness, Bathan, also testified that he
was at the same basketball court on that night and he saw that Aliling was about to ride his motorcycle when he
was shot. However, Bathan did not see accused Hilario Aliling at the place when the shooting happened and
instead saw an unidentified man shot the private complainant. The RTC and the CA found Aliling guilty and
held that the positive allegations of the prosecution witnesses prevailed over the denial and alibi of the defense
witnesses. Aliling argued that the testimonial evidence of the prosecution cannot be relied on as they were
inconsistent and incredible, especially against the eyewitness account of Bathan. Are the RTC and CA
correct?

A: No. Positive testimony is generally given more weight than the defenses of denial and alibi which are
held to be inherently weak defenses because they can be easily fabricated. While, indeed, the defense of
denial or alibi can be easily fabricated, the same can be said of untruthful accusations, in that they can be as
easily concocted. Thus, if found credible, the defenses of denial and alibi may be considered complete and
legitimate defenses. The burden of proof does not shift by the mere invocation of said defenses; the presumption
of innocence remains in favor of the accused. In alibi, the accused must prove not only that he was at some
other place at the time the crime was committed, but that it was likewise physically impossible for him to be at
the scene of the crime at the time thereof.

Here, the Court found that Aliling's alibi was straightforward, credible, and corroborated by an impartial
witness. Bolstering the alibi of Aliling is the eyewitness account of Bathan who positively testified that he
witnessed the shooting incident and saw that the culprit was not Aliling. (Aliling v. People, G.R. No. 230991, 11
June 2018)

Admissibility of Out-of-Court Identification

It is admissible and reliable when it satisfies the “totality of circumstances” test. Under the “totality of
circumstances” test, the following factors are considered:
1. Witness’ opportunity to view the criminal at the time of the crime;
2. Witness’ degree of attention at that time;
3. Accuracy of any prior description given by the witness;
4. Level of certainty demonstrated by the witness at the identification;
5. Length of time between the crime and the identification; and
6. Suggestiveness of the identification procedure. (People v. Claudio Teehankee, Jr., G.R. Nos. 111206-08, 06
Oct. 1995)

Frame-up- Allegations of frame-up by police officers are common and standard defenses in most dangerous
drugs cases. For this claim to prosper, the defense must adduce clear and convincing evidence to overcome
presumption that government officials have performed their duties in a regular and proper manner. Thus, in the
absence of proof of motive to falsely impute such a serious crime against the accused, the presumption of
regularity in the performance of official duty shall prevail. (People v. Almodiel, G.R. No. 200951, 05 Sept.
2012)

Corpus Delicti
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It is the actual commission by someone of the particular crime charged. It refers to the fact of the commission of
the crime, not to the physical body of the deceased or to the ashes of a burned building. The corpus delicti may
be proven by the credible testimony of a sole witness, not necessarily by physical evidence. (Rimorin v. People,
G.R. No. 146481, 30 Apr. 2003)

Elements of Corpus Delicti

1. Proof of the occurrence of a certain event; and
2. A person’s criminal responsibility for the act. (People v. Corpuz, G.R. No. 148919, 17 Dec. 2002)

Remember! The identity of the accused is not a necessary element of the corpus delicti.

Plea of Guilty in Open Court Sufficient without Proof of Corpus Delicti

A plea of guilty at the arraignment in open court, which is a confession of guilt by the defendant, is sufficient to
support a conviction without necessity of proof aliunde of corpus delicti. In contrast, an extrajudicial confession
made by defendant does not warrant a conviction unless corroborated by independent evidence of corpus delicti.
(Francisco, 1996)

Q: Jose Mariposa was charged with violation of Sec. 4, Art. 2 of the Dangerous Drugs Act of 1972. He was
apprehended thru a buy-bust operation. During trial the prosecution failed to produce the marijuana sticks that
Mariposa sold during the entrapment operation. Is there a need to produce the marijuana sticks to convict
the accused?

A: Yes. The elements necessary for a charge of illegal sale of marijuana are: (1) the identity of the buyer and
the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefore. It is
indispensable that the identity of the marijuana which constitutes the corpus delicti must be established before
the court. During the trial, the sticks of marijuana were never presented as evidence to prove that appellant
indeed sold the same during the entrapment operation. It is indispensable in every prosecution for illegal sale of
marijuana, a prohibited drug, is the submission of proof that the sale for the illicit drug took place between the
poseur-buyer and the seller thereof, and the presentation further of the marijuana, the corpus delicti, as evidence
in court. (People v. Rigodon, G.R. No. 111888, 08 Nov. 1994)

Res ipsa loquitur

It literally means the “thing speaks for itself”. This doctrine provides that the fact of the occurrence of an injury,
taken with the surrounding circumstances. Where the thing which caused the injury complained of is shown to
be under the management of the defendant or his servants and the accident is such as in ordinary course of
things does not happen if those who have its management or control use proper care, it affords reasonable
evidence, in the absence of participation by the defendant, that the accident arose from or was caused by the
defendant's want of care. (Ramos v. CA, G.R. No. 124354, 29 Dec. 1999)

Application of the Doctrine DOES NOT Dispense with the Requirement of Proof of Negligence
It is considered merely as evidentiary or in the nature of procedural rule. It is simply in the process of such
proof, permitting the plaintiff to present enough of the attending circumstances to invoke the doctrine, creating
an inference or presumption of negligence and thereby place on the defendant the burden of going forward with
the proof to the contrary. (Ramos, et al. v. CA, G.R. No. 124354, 29 Dec. 1999)

J. RULES ON ELECTRONIC EVIDENCE

(A.M. No. 01-7-01-SC)
Electronic Document
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- Information or the representation of information, data, figures, symbols or other modes of written expression,
described or however represented, by which a right is established, or an obligation extinguished, or by which a
fact may be proved and affirmed, which is received, recorded, transmitted, stored processed, retrieved or
produced electronically; and It includes digitally signed documents and any print-out or output, readable
by sight or other means, which accurately reflects the electronic data message or electronic document.
(Sec. 1(h), Rule 2, A.M. No. 01-07-01-SC)

For the document to be deemed electronic, it is important that it be received, recorded, transmitted, stored,
processed, retrieved, or produced electronically. The Rule does not absolutely require that that the electronic
document be initially generated or produced electronically. (Riano, 2019)

Electronic Data Message- information generated, sent, received, or stored by electronic, optical or similar
means. (Sec. 1(f), Rule 2, A.M. No. 01-07-01-SC)

Electronic Documents as Functional Equivalent of Paper-based Documents

Whenever a rule of evidence refers to the term of writing, document, record, instrument, memorandum or any
other form of writing, such term shall be deemed to include an electronic document. (Sec. 1, Rule 3, A.M. No.
01-07-01-SC)

Admissibility
1. It must comply with the rules on admissibility prescribed by the Rules of Court and related laws; and
2. If must be authenticated in the manner prescribed by these Rules.

Privileged Communication
The confidential character of a privileged communication is not denied solely on the ground that it is in the
form of an electronic document

Electronic Data Message- Information generated, sent, received or stored by electronic, optical or similar
means.

Electronic Document- Information or the representation of information, data, figures, symbols or other modes
of written expression, described or however represented, by which a right is established or an obligation
extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored,
processed, retrieved or produced electronically. It includes digitally signed documents.

While "data message" has reference to information electronically sent, stored or transmitted, it does not
necessarily mean that it will give rise to a right or extinguish an obligation, unlike an electronic document.
Evident from the law, however, is the legislative intent to give the two terms the same construction. (MCC
Industrial Sales Corporation v. Ssangyong Corporation, G.R. No. 170633, 17 Oct. 2007)

Related Jurisprudence
The terms "electronic data message" and "electronic document," as defined under the Electronic Commerce Act
of 2000, do not include a facsimile transmission. Accordingly, a facsimile transmission cannot be considered as
electronic evidence. It is not the functional equivalent of an original under the Best Evidence Rule and is not
admissible as electronic evidence. (Torres v. PAGCOR, G.R. No.193531, 14 Dec. 2011)

What differentiates an electronic document from a paper-based document is the manner by which the
information is processed. By no stretch of the imagination can a person’s signature affixed manually be
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considered as information electronically received, recorded, transmitted, stored, processed, retrieved or
produced. Hence, the argument that since the paper printouts were produced through an electronic process, then
these photocopies are electronic documents as defined in the Rules on Electronic Evidence is obviously an
erroneous, if not preposterous, interpretation of the law. (NPC v. Codilla, G.R. No. 170491, 04 Apr. 2007)

Original of an electronic document

An electronic document shall be regarded as the equivalent of an original document under the Best Evidence
Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. (Sec. 1,
Rule 4, A.M. No.01-07-01-SC)

Copies as Equivalents of the Originals

GR: Copies or duplicates shall be regarded as the equivalent of the original when:
1. A document is in two or more copies executed at or about the same time with identical contents; or
2. It is a counterpart produced by the same impression as the original, or from the same matrix, or by
mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which are
accurately reproduces the original. (Sec. 2, Rule 4, A.M. No.01-07-01-SC)

XPNs:
1. A genuine question is raised as to the authenticity of the original; or
2. In the circumstances, it would be unjust or inequitable to admit a copy in lieu of the original. (Sec. 2, Rule 4,
A.M. No.01-07-01-SC)

In Maliksi v. COMELEC (G.R. No. 203302, 11 Apr. 2013), the Supreme Court ruled that the picture
images of the ballots are electronic documents that are regarded as the equivalents of the original official ballots
themselves. Citing Vinzons-Chato v. House of Representatives Electoral Tribunal, the Court held that "the
picture images of the ballots, as scanned and recorded by the PCOS, are likewise ‘official ballots’ that faithfully
capture in electronic form the votes cast by the voter, as defined by Section 2(3) of R.A. No. 9369. As such, the
printouts thereof are the functional equivalent of the paper ballots filled out by the voters and, thus, may be used
for purposes of revision of votes in an electoral protest."

That the two documents—the official ballot and its picture image—are considered "original documents" simply
means that both of them are given equal probative weight. In short, when either is presented as evidence, one is
not considered as weightier than the other. Burden of Proving Authenticity The person offering the document
has the burden to prove its authenticity. (Sec. 1, Rule 5, A.M. No.01-07-01-SC)

Evidentiary Weight of Electronic Documents

Factors for Assessing Evidentiary Weight

1. The reliability of the manner or method in which it was generated, stored or communicated, including but not
limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic
data message or document, in the light of all the circumstances as well as any relevant agreement;
2. The reliability of the manner in which its originator was identified;
3. The integrity of the information and communication system in which it is recorded or stored, including but
not limited to the hardware and computer programs or software used as well as programming errors;
4. The familiarity of the witness or the person who made the entry with the communication and information
system;
5. The nature and quality of the information which went into the communication and information system upon
which the electronic data message or electronic document was based; or
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6. Other factors which the court may consider as affecting the accuracy or integrity of the electronic document
or electronic data message. (Sec. 1, Rule 7, A.M. No.01-07-01-SC)

Affidavit of Evidence
All matters relating to the admissibility and evidentiary weight of an electronic document may be established by
an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit
must affirmatively show the competence of the affiant to testify on the matters contained therein. (Sec. 1, Rule
9, A.M. No.01-07-01-SC)

Remember! Cross-examination of the deponent is allowed as a matter of right by the adverse party. (Sec.
2, Rule 9, A.M. No.01-07-01-SC)

Inapplicability of the Hearsay Rule

A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by
electronic, optical or other similar means at or near the time of or from transmission or supply of information by
a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was
the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or
similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted
from the rule on hearsay evidence. (Sec. 1, Rule 8, A.M. No.01-07-01-SC)

Remember! The presumption provided for in Sec. 1, Rule 8 may be overcome by evidence of the
untrustworthiness of the source of information or the method or circumstances of the preparation, transmission
or storage. (Sec. 2, Rule 8, A.M. No.01-07-01-SC)

Manner of Authentication of Electronic Documents

1. By evidence that it had been digitally signed by the person purported to have signed the same;
2. By evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court
or by law for authentication of electronic documents were applied to the document; or
3. By other evidence showing its integrity and reliability to the satisfaction of the judge. (Sec. 2, Rule 5, A.M.
No.01-07-01-SC)

Remember! The above-mentioned requirements will only apply when the document is a private document and
the same is offered as an authentic document. (Riano, 2019)

Manner of Authentication of Electronic Signatures

1. By evidence that a method or process was utilized to establish a digital signature and verify the same;
2. By any other means provided by law; or
3. By any other means satisfactory to the judge as establishing the genuineness of the electronic signature. (Sec.
2, Rule 6, A.M. No.01-07-01-SC)

Audio, Video, and Similar Evidence

Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be
shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who
made the recording or by some other person competent to testify on its accuracy. (Sec. 1, Rule 11, A.M. No.01-
07-01-SC)

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Ephemeral Electronic Communication
Telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other
electronic forms of communication the evidence of which is not recorded or retained. (Sec.1(k), Rule 2, A.M.
No.01-07-01-SC)

Under Section 2, Rule 11 of the Rules on Electronic Evidence, ephemeral electronic communications shall be
proven by the testimony of a person who was a party to the same or who has personal knowledge thereof. In this
case, complainant who was the recipient of said messages and therefore had personal knowledge thereof
testified on their contents and import. Respondent herself admitted that the cellphone number reflected in
complainant’s cellphone from which the messages originated was hers. Moreover, any doubt respondent may
have had as to the admissibility of the text messages had been laid to rest when she and her counsel signed and
attested to the veracity of the text messages between her and complainant. There is no doubt as to the probative
value of the text messages as evidence in determining the guilt or lack thereof of respondent. (Nuez v. Cruz-
Apao, A.M. No. CA-05-18- P, 12 Apr. 2005)

By analogy, a deleted Facebook post may be admitted as an ephemeral electronic communication subject
to the exclusionary rule of whether it was illegally obtained or not.

Q: Is the printout of a photograph from your mobile phone showing a fly in the soup you ordered
admissible evidence in an action for damages against the restaurant owner? Explain briefly.

A: Yes. The printout of a photograph from a mobile phone is admissible in evidence. Under the Rules on
Evidence, if a document or data is stored in a computer or similar device, any printout therefrom is an
original and thus admissible in evidence . (Sec. 4(a), Rules 130, ROC, as Amended) Here, the mobile phone
is a device which is similar to a computer. A photograph is considered as a document under the Rules on
Evidence. (Sec. 2, Rule 130, ROC, as amended) Hence, the printout of the photograph is an original and thus
admissible in evidence.

Q: Moises Oracion, Jr. and Emily L. Oracion applied for and were granted by petitioner credit card
accommodations with the issuance of a Bankard PESO Mastercard Platinum. Thereafter, respondents, on
various dates, used the credit card in purchasing different products but failed to pay. In its complaint against the
respondents, petitioner attached "duplicate original" copies of the Statements of Account from 17 April 2011 to
15 December 2011 and the Credit History Inquiry. Despite the receipt of the SOAs, respondents failed and
refused to comply. Consequently, petitioner sent a written demand letter to respondents but despite receipt,
respondents refused to pay. Hence, petitioner filed a Complaint for Sum of Money before the MeTC. The MeTC
dismissed the complaint and noted that the signatures in the documents attached in the complaint are mere
photocopies and stamp marks. The MeTC rationalized that under the Best Evidence Rule, the court shall not
receive any evidence that is merely substitutionary, such as stamp mark. The RTC held that it is up to petitioner
to prove that the attachments in support of the complaint are originals and not merely substitutionary in nature.
In its petition for review before the Supreme Court, petitioner raises for the first time on appeal the Rules on
Electronic Evidence arguing that since electronic documents, when directly printed out are considered original
reproductions, they are admissible under the Best Evidence Rule. Did the lower courts err in dismissing the
complaint?

A: No. Procedurally, petitioner cannot adopt a new theory in its appeal before the Court and abandon its theory
in its appeal before the RTC. Pursuant to Sec. 15, Rule 44 of the Rules, petitioner may include in his assignment
of errors any question of law or fact that has been raised in the court below and is within the issues framed by
the parties. Before the RTC, petitioner did not raise the Rules on Electronic Evidence to justify that the so-called
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shall be subjected to criminal prosecution and administrative charges.
"duplicate original copies" of the SOAs and Credit History Inquiry are electronic documents. Rather, it insisted
that they were duplicate original copies, being computer-generated reports, and not mere photocopies or
substitutionary evidence, as found by the MeTC. As observed by the RTC, the attachments to the said
Manifestation "are merely photocopies of the annexes attached to the complaint, but with a mere addition of
stamp marks bearing the same inscription as the first stamp marks" that were placed in the annexes to the
complaint. Because petitioner has not raised the electronic document argument before the RTC, it may no
longer be raised nor ruled upon on appeal. Also, estoppel bars a party from raising issues, which have not been
raised in the proceedings before the lower courts, for the first time on appeal.

Clearly, petitioner, by its acts and representations, is now estopped to claim that the annexes to its
complaint are not duplicate original copies but electronic documents. It is too late in the day for petitioner to
switch theories. Even assuming that the Court brushes aside the above-noted procedural obstacle, the Court
cannot just concede that the pieces of documentary evidence in question are indeed electronic documents. For
the Court to consider an electronic document as evidence, it must pass the test of admissibility. According to
Sec. 2, Rule 3 of the Rules on Electronic Evidence, "an electronic document is admissible in evidence if it
complies with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated
in the manner prescribed by these Rules." Rule 5 of the Rules on Electronic Evidence lays down the
authentication process of electronic documents. Sec. 1 of Rule 5 imposes upon the party seeking to introduce an
electronic document in any legal proceeding the burden of proving its authenticity in the manner provided
therein. Sec. 2 of Rule 5 sets forth the required proof of authentication.

Petitioner could not have complied with the Rules on Electronic Evidence because it failed to
authenticate the supposed electronic documents through the required affidavit of evidence. As earlier pointed
out, what petitioner had in mind at the inception was to have the annexes admitted as duplicate originals as the
term is understood in relation to paper-based documents. Thus, the annexes or attachments to the complaint of
petitioner are inadmissible as electronic documents, and they cannot be given any probative value.

In the absence of such authentication through the affidavit of the custodian or other qualified person, the
said annexes or attachments cannot be admitted and appreciated as business records and excepted from the rule
on hearsay evidence. Consequently, the annexes to the complaint fall within the Rule on Hearsay Evidence and
are to be excluded pursuant to Section 36, Rule 130 of the Rules of Court. (RCBC Bankard Services Corp. v.
G.R. No. 223274. 19 June 2019)

147
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