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UST GOLDEN NOTES 2011

294
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

EVIDENCE

A. GENERAL PRINCIPLES

1. CONCEPT OF EVIDENCE

Q: What is evidence?
A: 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)
Q: What are the four component elements?
A:
1. Means of ascertainment includes not
only the procedure or manner of
ascertainment but also the evidentiary
fact from which the truth respecting a
matter of fact may be ascertained
2. Sanctioned by the rules not excluded by
the Rules of Court
3. In a judicial proceeding contemplates an
action or proceeding filed in a court of law
4. The truth respecting a matter of fact
refers to an issue of fact and is both
substantive (determines the facts needed
to be established) and procedural
(governs the manner of proving said
facts).

Q: Why is evidence required?

A: It is required because of the presumption that
the court is not aware of the veracity of the facts
involved in a case. It is therefore incumbent upon
the parties to prove a fact in issue thru the
presentation of admissible evidence (Riano,
Evidence: A Restatement for the Bar, p. 2, 2009 ed.).
2. SCOPE OF THE RULES OF EVIDENCE
Q: What is the scope of the Rules of Evidence?
A: The rules of evidence shall be the same in all
courts and in all trials and hearings, except as
otherwise provided by law or by these rules. It is
guided by the principle of uniformity. (Sec. 2, Rule
128).
NOTE: It does not apply to election cases, land
registration, cadastral, naturalization and insolvency
proceedings, and other cases, except by analogy or in
suppletory character and whenever practicable and
convenient. (Sec. 4, Rule 1, Rules of Court)
Q: Are there vested rights under the Rules of
Evidence?
A: No. Any evidence inadmissible according to the
laws in force at the time the action accrued, but
admissible according to the laws in force at the
time of the trial is receivable.
3. EVIDENCE IN CIVIL CASES VERSUS EVIDENCE IN
CRIMINAL CASES
Q: Distinguish Evidence in Civil Cases from
Evidence in Criminal Cases.
A:
Civil Cases Criminal Cases
The party having the
burden of proof must
prove his claim by a
preponderance of
evidence
The guilt of the accused
has to be proven
beyond reasonable
doubt
An offer of compromise
is not an admission of
any liability, and is not
admissible in evidence
against the offeror
An offer of compromise
by the accused may be
received in evidence as
an implied admission of
guilt
The concept of
presumption of
innocence does not
apply
The accused enjoys the
constitutional
presumption of
innocence

4. PROOF VERSUS EVIDENCE

Q: Distinguish proof from evidence.
A:
Proof Evidence
The effect when the
requisite quantum of
evidence of a particular
fact has been duly
admitted and given weight
The mode and manner
of proving competent
facts in judicial
proceedings
The probative effect of
evidence
The means of proof

5. FACTUM PROBANS VERSUS FACTUM
PROBANDUM
Q: Distinguish factum probandum from factum
probans.
A:
Factum Probandum Factum Probans
The ultimate fact sought
to be established
The intermediate facts
Proposition to be
established
Materials which establish
the proposition
Hypothetical Existent

Note: Every evidentiary question involves the
relationship between the factum probandum and
factum probans.
EVIDENCE


295
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
6. ADMISSIBILITY OF EVIDENCE

Q: Distinguish admissibility of evidence from
probative value of evidence.

A:
Admissibility Probative Value
Question of whether certain
pieces of evidence are to be
considered at all.
Question of whether
the admitted evidence
proves an issue.

Note: Thus, a particular item of evidence may be
admissible, but its evidentiary weight depends on
judicial evaluation within the guidelines provided by
the rules of evidence (Heirs of Sabanpan v. Comorposa,
G.R. No. 152807, Aug. 12, 2003).

a. REQUISITES FOR ADMISSIBILITY OF EVIDENCE

Q: What are the requisites for admissibility of
evidence?

A:
1. Relevancy such a relation to the fact in
issue as to induce belief in its existence or
non-existence.
2. Competency if not excluded by law or by
the rules.

Q: What |s the doctr|ne of "Iru|t of the o|sonous
Tree?

A: The doctrine speaks of that illegally seized
documents, papers, and things are inadmissible in
evidence. The exclusion of such evidence is the only
practical means of enforcing the constitutional
injunction against unreasonable searches and
seizures.

Q: What are the two axioms of admissibility
according to Wigmore?

A:
1. Axiom of relevancy none but facts
having rational probative value are
admissible.

Note: Components of relevancy:
a. Materiality whether the evidence is
offered upon a matter properly in
issue.
b. Probativeness the tendency to
establish the proposition for which it is
offered as evidence.

2. Axiom of competency facts having
rational probative value are admissible
unless some specific rule forbids their
admission. The rules of exclusion are rules
of exception to the general admissibility
of all that is rational and probative.

b. RELEVANCE OF EVIDENCE AND COLLATERAL
MATTERS

Q: What is meant by relevance of evidence?

A: Evidence must have such a relation to the fact in
issue as to induce belief in its existence or non-
existence.

Q: Is evidence on collateral matters allowed?

A: Evidence on collateral matters shall not be
allowed, except when it tends in any reasonable
degree to establish the probability or improbability
of the fact in issue. (Sec. 4, Rule 128)

Note: While the evidence may not bear directly on the
issue, it will be admitted if it has the tendency to
corroborate or supplement facts established
previously by direct evidence, or to induce belief as to
the probability or improbability of a fact in issue.

c. MULTIPLE ADMISSIBILITY
d. CONDITIONAL ADMISSIBILITY
e. CURATIVE ADMISSIBILITY


Q: What are the kinds of admissibility of evidence?

A:
MULTIPLE Evidence that is plainly relevant and
competent for two or more purposes
will be received if it satisfies all the
requirements prescribed by law in
order that it may be admissible for
the purpose for which it is presented,
even if it does not satisfy the other
requisites of admissibility for other
purposes.
CONDITIONAL Evidence appears to be immaterial is
admitted by the court subject to the
condition that its connection with
another fact subsequent to be
proved will be established.
Otherwise, such fact already received
will be stricken off the record at the
initiative of the adverse party.
CURATIVE Evidence that is otherwise improper
is admitted (despite objection from
the other party) to contradict
improper evidence presented or
introduced by the other party, to
cure, contradict or neutralize such
improper evidence.


UST GOLDEN NOTES 2011



296
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

Q: What are the three theories on curative
admissibility?

A:
1. American Rule the admission of such
incompetent evidence, without objection
by the opoonent does not justify such
opponent in rebutting it by similar
incompetent evidence

2. English Rule if a party has presented
inadmissible evidence, the adverse party
may resort to similar inadmissible
evidence

3. Massachusetts Rule the adverse pary
may be permitted to introduce similar
incompetent evidence In order to avoid a
plain and unfair prejudice cause by the
admlsslon of Lhe oLher parLy's evldence.

Q: What should determine the application of the
rule of curative admissibility?

A:
1. Whether the incompetent evidence was
seasonably objected to; and
2. Whether, regardless of the objection, the
admission of such evidence shall cause a
plain and unfair prejudice to the party
against whom it is admitted.

f. DIRECT AND CIRCUMSTANTIAL EVIDENCE
Q: Distinguish direct evidence from circumstantial
evidence.

A:
DIRECT EVIDENCE CIRCUMSTANTIAL EVIDENCE
Establishes the
existence of a fact in
issue without the
aid of any inference
or presumption
Does not prove the existence
of a fact in issue directly, but
merely provides for logical
inference that such fact really
exists
The witness testifies
directly of his own
knowledge as to the
main facts to be
proved
Each proof is given of facts and
circumstances from which the
court may infer other
connected facts which
reasonably follow, according
to the common experience of
mankind

Q: When is circumstantial evidence sufficient to
convict the accused?

A: It is sufficient for conviction if:
1. There is more than one circumstance;
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;
People vs Sevilleno, G.R. No. 152954,
March 11, 2004).

Q: Is direct proof of previous agreement to commit
a crime necessary to prove conspiracy?

A: No. Considering the difficulty in establishing the
existence of conspiracy, settled jurisprudence finds
no need to prove it by direct evidence (Fernan, Jr.
and Torrevillas v. People, G.R. No. 145927, Aug. 24,
2007). It may be deduced from the acts of the
perpetrators before, during and after the
commission of the crime which are indicative of a
common design, concerted action and concurrence
of sentiments (Serrano v. CA, G.R. No. 123896, June
25, 2003).

g. POSITIVE AND NEGATIVE EVIDENCE

Q: What is positive and negative evidence?

A:
1. Positive when the witness affirms that a
fact did or did not occur, it is entitled to
greater weight since the witness
represents of his personal knowledge the
presence or absence of a fact.

2. Negative when the witness states that
he did not see or know of the occurrence
of a fact and there is total disclaimer of
personal knowledge. Such is admissible
only if has to contradict positive acts of
the other side or would tend to exclude
the existence of fact sworn to by the
other side.

Note: A denial is a negative evidence. It is considered
by jurisprudence to be a very weak form of defense
and can never overcome an affirmative or positive
testimony particularly when it comes from the mouth
of a credible witness. (People vs Mendoza, 450 SCRA
328, January 21, 2005).

h. COMPETENT AND CREDIBLE EVIDENCE

Q: Distinguish competent evidence from credible
evidence.

A:
COMPETENT CREDIBLE
Evidence is not excluded
by the rules
Refers to worthiness of
belief (believability)
Note: That quality which
renders a witness worthy of
belief (8locks, 5
th
Ed., 330)
EVIDENCE


297
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
7. BURDEN OF PROOF AND BURDEN OF EVIDENCE

Q: What is burden of proof?

A: It is the duty of a party to present evidence to
establish his claim or defense by the amount of
evidence required by law (Sec. 1, Rule 131). It is also
called onus probandi.

Q: What are the two concepts of burden of proof?

A:
1. Burden of going forward arLy's obllgaLlon of
producing evidence.
2. Burden of persuasion The burden of
persuading the trier of fact that the burdened
party is entitled to prevail.

Q: Distinguish burden of proof from burden of
evidence. (2004 Bar Question)

A:
BURDEN OF PROOF BURDEN OF EVIDENCE
Definition
It is the duty of a party
to present evidence on
the facts in issue
necessary to establish
his claim or defense by
the amount of evidence
required by law (Sec. 1,
Rule 131)
It is the duty of a party to
provide evidence at any
stage of the trial until he
has established a prima
facie case, or the like duty
of the adverse party to
meet and overthrow that
prima facie case thus
established. In both civil
and criminal cases, the
burden of evidence lies on
the party who asserts an
affirmative allegation.
(Regalado, Vol. II, p. 817,
2008 ed.)
Whether it shifts throughout the proceedings
Does not shift as it
remains throughout the
entire case exactly
where the pleadings
originally placed it
Shifts to the other party
when one party has
produced sufficient
evidence to be entitled to a
ruling in his favor
What determines it
Generally determined by
the pleadings filed by
the party; and whoever
asserts the affirmative of
the issue has the burden
of proof
Generally determined by
the developments at the
trial, or by the provisions of
the substantive law or
procedural rules which may
relieve the party from
presenting evidence on the
fact alleged
Effect of a legal presumption
It does not shift the
burden of proof.
However, the one who
has the burden of proof
is relieved from the time
It creates a prima facie
case and thereby sustains
the said burden of
evidence on the point
which it covers, shifting it
being, from introducing
evidence in support of
his averment because
the presumption stands
in the place of evidence.
(Francisco, p. 356, 1992
ed.)
to the other party. It
relieves those favored
thereby of the burden of
proving the fact presumed.

Note: The burden of proof is on the party who asserts
the affirmative of the issue at the beginning of the
case and continues on him throughout the case. Ei
incumbit probatio qui dicit, no qui negat - he who
asserts, not he who denies, must prove (Homeowners
Savings & Loan Bank v. Dailo, G.R. No. 153802, Mar.
11, 2005).
Where insanity is alleged, the burden of proof rests
upon him who alleges insanity to establish that fact
but where insanity is once proved to exist, the burden
of evidence is shifted to him who asserts that the act
was done while the person was sane (Engle v. Doe,
G.R. No. L-23317, Aug. 7, 1925).

Q: What is the test to determine where the burden
of proof lies?

A: The test is to ask which party to an action or suit
will fail if he offers no evidence competent to show
the facts averred as the basis for the relief he seeks
to obtain. If the defendant has affirmative defenses,
he bears the burden of proof as to those defenses
whlch he seLs up ln answer Lo Lhe plalnLlff's cause
of action (Bank of the Philippine Islands v. Spouses
Royeca, G.R. No. 176664, July 21, 2008).

Q: Who has the burden of proof?

A:
CIVIL CASE
Plaintiff Defendant
To show the truth of his
allegations if the
defendant raises a
negative defense.
If he raises an affirmative
defense.
CRIMINAL CASE
Prosecution Accused
Because of presumption
of innocence

When he admits the
offense/crime charged
but raises justifying,
exempting circumstances,
or absolutory causes.

Q: Who has the burden of evidence?

A:
CIVIL CASE
Plaintiff Defendant
Has to prove his
affirmative allegations in
the complaint
Has to prove the
affirmative allegations in
his counterclaim and his
affirmative defenses
UST GOLDEN NOTES 2011



298
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

CRIMINAL CASE
Prosecution Accused
Has to prove its
affirmative allegations in
the Information
regarding the elements
of the crime as well as
the attendant
circumstances
Has to prove his
affirmative allegations
regarding the existence
of justifying, exempting,
absolutory, or mitigating
circumstances

Q: What are the degrees of proof necessary to
satisfy the burden of proof?

A:
1. Civil case Preponderance of evidence
2. Administrative case Substantial
evidence
3. Criminal case:
a. During preliminary investigation
Well founded belief of the fact of
commission of a crime
b. Issuance of warrant of arrest
Probable cause
c. To convict an accused Evidence of
guilt beyond reasonable doubt
d. Accused claims justifying/exempting
circumstances Clear and convincing
evidence

Q: Who has the burden of proof if the accused
seeks dismissal under the Speedy Trial Act?

A: If the accused is not brought to trial within the
time required, the Information shall be dismissed
upon motion of the accused. In such a case, the
burden of proof of supporting his motion is with the
accused (Sec. 13, R.A. 8493).

Q: Who has the burden of proof in self-defense?

A: One who invokes self-defense admits
responsibility for the killing. Accordingly, the
burden of proof shifts to the accused who must
then prove the justifying circumstance. He must
show by clear and convincing evidence that he
indeed acted in self-defense, or in defense of a
relative or a stranger. Self-defense, like alibi, is a
defense which can easily be concocted.

It is well-settled in this jurisdiction that once an
accused has admitted that he inflicted the fatal
injuries on the deceased, it is incumbent upon him
in order to avoid criminal liability, to prove the
justifying circumstance claimed by him with clear,
satisfactory and convincing evidence. He cannot
rely on the weakness of the prosecution but on the
strength of his own evldence, for even lf Lhe
evidence of the prosecution were weak it could not
be disbelieved after the accused himself had
admlLLed Lhe kllllng." (Cabuslay v. People and
Sandiganbayan, G.R. No. 129875, Sept. 30, 2005).

Q: What is the Principle of Negative Averments?

A:
GR: Negative allegations need not be proved,
whether in civil or criminal cases.

XPN: Where such negative allegations are
essential parts of the cause of action or defense
in a civil case, or are essential ingredients of the
offense in a criminal case or the defenses
thereto, negative allegations should be proved.
(Industrial Finance Corp., v.Tobias, G.R. No. L-
41555, July 27, 1977)

XPN to the XPN: In civil cases, even if the
negative allegation is an essential part of the
cause of action or defense, it does not have to
be proved if it is only for the purpose of denying
the existence of a document which should
properly be in the custody of the adverse party.
(Regalado, Vol. II, p. 818, 2008 ed.)

8. PRESUMPTIONS

Q: What are matters which need not be proved?

A:
1. Facts admitted or not denied provided they
have been sufficiently alleged (Sec. 11,
Rule 8);
2. Agreed and admitted facts (Sec. 4, Rule
129);
3. Facts subject to judicial notice (Sec. 3,
Rule 129); and
4. Facts legally presumed (Secs. 2 & 3, Rule
131).

Q: What is presumption?

A: It is an assumption of fact resulting from a rule of
law, which requires such fact to be assumed from
another fact or group of facts found or otherwise
established in the action (8locks, 5
th
Ed., 1067 citing
Uniform Rule 12; NJ evidence Rule 13). It is an
inference of the existence or non-existence of a fact
which courts are permitted to draw from the proof
of other facts. (In the matter of the Intestate Estates
of Delgado and Rustia, G.R. No. 175733, Jan. 27,
2006)

Note: A presumption shifts the burden of going
forward with the evidence. It imposes on the party
against whom it is directed the burden of going
forward with evidence to meet or rebut the
presumption.

EVIDENCE


299
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
Q: Distinguish the classes of presumptions.

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

Q: What are the kinds of presumptions of law?

A:
1. Conclusive presumptions (presumptions juris
et de jure)
2. Disputable presumptions (presumptions juris
tantum)

a. CONCLUSIVE PRESUMPTIONS

Q: What is a conclusive presumption?

A: Conclusive presumptions are those which are not
permitted to be overcome by any proof to the
contrary.

Q: What are the classes of conclusive
presumptions?

A:
1. Estoppel in pais Whenever a party has, by
his own declaration, act or omission,
intentionally and deliberately led another to
believe a particular thing to be true, and to
act upon such belief, he cannot, in any
litigation arising out of such declaration, act
or omission, be permitted to falsify it [Sec. 2,
(par. a)].

2. Estoppel by deed A party to a property
deed is precluded from asserting, as against
another party to the deed, any right or title
in derogation of the deed, or from denying
the truth of any material fact asserted in the
deed e.g. The tenant is not permitted to
deny the title of his landlord at the time of
the commencement of the relation of
landlord and tenant between them [Sec. 2
(par. b)]

Note: Estoppel may attach even though the landlord
does not have title at the commencement of the
relations. It may inure in favor of the successor.

If the title asserted is one that is alleged to have been
acquired subsequent to the commencement of that
relation, the presumption will not apply.

Q: What are the requisites for a party to be
estopped?

A:
1. Conduct amounting to false representation
or concealment of material facts; or at least
calculated to convey the impression that the
facts are otherwise than, and inconsistent
with, those which the party subsequently
attempts to assert;
2. Intent, or at least, expectation, that this
conduct shall be acted upon by, or at least
influence, the other party; and
3. Knowledge, actual or constructive, of the
real facts. (Riano, Evidence: A Restatement
for the Bar, p. 431, 2009 ed.)

Q: What are the requisites before estoppel can be
claimed?

A:
1. Lack of knowledge and of the means of
knowledge of the truth as to the facts in
question;
2. Reliance, in good faith, upon the conduct or
statements of the party to be estopped; and
3. Action or inaction based thereon of such
character as to change the position or status
of the party claiming the estoppel, to his
injury, detriment or prejudice. (Kalalo v. Luz,
G.R. No. L-27782, July 31, 1970)

b. DISPUTABLE PRESUMPTIONS

Q: What are disputable presumptions?

A: Those which are satisfactory if uncontradicted,
but may be contradicted and overcome by other
evidence. (Sec. 3, Rule 131)



UST GOLDEN NOTES 2011



300
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

Q: What are the disputable presumptions under
Section 3 of Rule 130?

A:
1. A person is innocent of a crime or wrong.

Note: It applies to both civil and criminal cases.
Presumption of innocence of the accused
accompanies him until the rendition of
judgement and disappears after conviction, such
that upon appeal, the appellate court will then
presume the guilt of the accused.

2. Unlawful act is done with an unlawful intent.

3. Person intends the ordinary consequences of
his voluntary act.

4. Person takes ordinary care of his concerns.
Note: All people are sane and normal and moved
by substantially the same motives. When of age
and sane, they must take care of themselves.
Courts operate not because one person has been
defeated or overcome by another but because
that person has been defeated or overcome
illegally. There must be a violation of the law
(Vales v. Villa, G.R. No. 10028, Dec. 16, 1916).

5. Evidence willfully suppressed would be adverse
if produced.

The requisites for the presumption to apply
are:
a. The evidence is material;
b. The party had the opportunity to produce
it; and
c. The evidence is available only to the said
party.

The presumption will not be applicable when:
a. Suppression of evidence is not willful;
b. Evidence suppressed or withheld is
merely corroborative or cumulative;
c. Evidence is at the disposal of both parties;
and
d. Suppression is by virtue of an exercise of
privilege.

Note: Failure of the prosecution to present a
certain witness and to proffer a plausible
explanation does not amount to willful
suppression of evidence since the prosecutor has
the discretion/prerogative to determine the
witnesses he is going to present (People v.
Jalbuena, G.R. No. 171163, July 4, 2007).

6. Money paid by one to another was due to the
latter.

7. Thing delivered by one to another belonged to
the latter.

8. Obligation delivered up to the debtor has been
paid.

9. Prior rents or installments had been paid when
a receipt for the later ones is produced.

10. 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.
Note: Presumption of possession of stolen goods
arises once the prosecution is able to prove that a
certain object has been unlawfully taken, and
that the accused is in possession of the object
unlawfully taken. Presumption of innocence
disappears and presumption of guilt takes place.

11. Person in possession of an order on himself for
the payment of the money or the delivery of
anything has paid the money or delivered the
thing accordingly.

12. Person acting in public office was regularly
appointed or elected to it.

Ratio: It would cause great inconvenience if in
the first instance strict proof were required of
appointment or election to office in all cases
where it might be collaterally in issue.

13. Official duty has been regularly performed.
Note: All things are presumed to have been done
regularly and with due formality until the
contrary is proved (Omnia praesumuntur rite et
solemniter esse acta donec probetur in
contrarium). An adverse presumption may arise
where the official act in question appears
irregular on its face. This presumption extends to
persons who have been appointed pursuant to a
local or special statute to act in quasi-public or
quasi-official capacities and to professionals like
lawyers and surgeons.

Ratio:
a. Innocence and not wrongdoing is to be
presumed;
b. An official oath will not be violated; and
c. A republican form of government cannot
survive long unless a limit is placed upon
controversies and certain trust and
confidence reposed in each governmental
department or agent at least to the extent
of such presumption.

GR: Presumption applies to both civil as well as
criminal cases.
EVIDENCE


301
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l

XPN: Petition for writ of amparo
presumption may not be invoked by the
respondent public officer or employee (Rule on
the Writ of Amparo, A.M. No. 17-9-12-SC).

14. A court or judge acting as such, whether in the
Philippines or elsewhere, was acting in the
lawful exercise of jurisdiction.
Note: Lawful exercise of jurisdiction is presumed
in all cases, be it superior or inferior courts,
whether in the Philippines or elsewhere, unless
the record itself shows that jurisdiction has not
been acquired or the record itself shows the
absence of jurisdiction, in which case jurisdiction
to render a judgment may not be presumed.

15. All the matters within an issue raised in a case
were laid before the court and passed upon by
it; all matters within an issue raised in a
dispute submitted for arbitration were laid
before arbitrators and passed upon by them.

16. Private transactions have been fair and
regular.
Note: Presumption that all men act fairly,
honestly and in good faith, and that an individual
intends to do right rather than wrong and intends
to do only what he has the right to do.

17. Ordinary course of business has been followed.
Note: Persons engaged in a given trade or
business are presumed to be acquainted with the
general customs, usages and other facts
necessarily incident to the proper conduct of the
business.

18. There was a sufficient consideration for a
contract.

19. Negotiable instrument was given or indorsed
for a sufficient consideration.

20. An endorsement of negotiable instrument was
made before the instrument was overdue and
at the place where the instrument is dated.

21. A writing is truly dated.

22. Letter duly directed and mailed was received in
the regular course of the mail.
Note: For this presumption to arise, it must be
proved that the letter was properly addressed
with postage pre-paid and that it was actually
mailed.

23. Absentee of 7 years, it being not known
whether or not he is still alive, is considered
dead for all purposes except for succession.
For the purpose of opening his succession, an
absence of 10 years is required; and if he
disappeared after the age of 75, absence of
only 5 years is sufficient. The following shall be
considered dead for all purposes including the
division of estate among the heirs:

a. Person on board a vessel lost during a sea
voyage, or an aircraft which is missing,
who has not been heard of for 4 years
since the loss of the vessel or aircraft;
b. Member of the armed forces who has
taken part in armed hostilities, and has
been missing for 4 years;
c. Person who has been in danger of death
under other circumstances and whose
existence has not been known for 4 years;
d. If a married person has been absent for 4
consecutive years, the spouse present
may contract a subsequent marriage if he
or she has well-founded belief that the
absent spouse is already dead; 2 years in
case of disappearance where there is
danger of death under the circumstances
hereinabove provided. Before marrying
again, the spouse present must institute a
summary proceeding as provided in the
Family Code and in the rules for
declaration of presumptive death of the
absentee, without prejudice to the effect
of re-appearance of the absent spouse.

24. Acquiescence resulted from a belief that the
thing acquiesced in was conformable to the
law or fact.

25. Things have happened according to the
ordinary course of nature and ordinary habits
of life.

26. Persons acting as co-partners have entered
into a contract of co-partnership.

27. A man and woman deporting themselves as
husband and wife have entered into a lawful
contract of marriage.

28. Property acquired by a man and a woman who
are capacitated to marry each other and who
live exclusively with each other as husband
and wife without the benefit of marriage or
under void marriage, has been obtained by
their joint efforts, work or industry.

29. In cases of cohabitation by a man and a
woman who are not capacitated to marry each
other and who have acquired properly through
their actual joint contribution of money,
property or industry, such contributions and
UST GOLDEN NOTES 2011



302
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

their corresponding shares including joint
deposits of money and evidences of credit are
equal.

30. If the marriage is terminated and the mother
contracted another marriage within 300
hundred days after such termination of the
former marriage, these rules shall govern in
the absence of proof to the contrary:

Presumptions of paternity:
a. A child born before 180 days after the
subsequent marriage is conceived during the
former marriage, provided it is born within 300
days after the termination of the former
marriage.
b. A child born after 180 days following the
subsequent marriage is considered to have
been conceived during the subsequent
marriage, even though it be born within the
300 days after the termination of the former
marriage.

Note: There is no presumption of legitimacy or
illegitimacy when a child is born after 300 days
following dissolution of marriage or the
separation of the spouses. Whoever alleges the
legitimacy or illegitimacy of such child must prove
his allegation (Sec. 4).






31. A thing once proved to exist continues as long
as is usual with things of that nature.

32. The law has been obeyed.

33. A printed or published book, purporting to be
printed or published by public authority, was so
printed or published.

34. A printed or published book, purporting to
contain reports of cases adjudged in tribunals
of the country where the book is published,
contains correct reports of such cases.

35. A trustee or other person whose duty it was to
convey real property to a particular person has
actually conveyed it to him when such
presumption is necessary to perfect the title of
such person or his successor in interest.
36. Except for purposes of succession, when 2
persons perish in the same calamity, and it is
not shown who died first, and there are no
particular circumstances from which it can be
inferred, the survivorship is determined from
the probabilities resulting from the strength
and age of the sexes, according to the
following rules:

First Person Second Person
Presumed To
Have Survived
< 15 yrs old < 15 yrs old older
> 60 yrs old > 60 yrs old younger
< 15 > 60 yrs old < 15
no presumption
termination of
1st marriage
subsequent marriage
180 days after the
subsequent marriage
300 days after
termination of 1st
marriage
conceived during the
subsequent marriage
no presumption of
legitimacy or illigitimacy
300 days after termination of 1st
marriage
termination of
1st marriage
180 days after the
subsequent marriage
subsequent marriage
conceived during the
former marriage
EVIDENCE


303
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
>15 and < 60
male
>15 and < 60
female
The male
>15 and < 60
female
>15 and < 60
female
The older
< 15 or > 60 15-60
The one
between those
ages

37. That if there is a doubt, as between two or
more persons who are called to succeed each
other, as to which of them died first, whoever
alleges the death of one prior to the other,
shall prove the same; in the absence of proof,
they shall be considered to have died at the
same time. (Sec. 3).

9. LIBERAL CONSTRUCTION OF THE RULES OF
EVIDENCE

Q: How are the rules on evidence construed?

A: The rules of evidence must be liberally
construed. (Section 6, Rule 1) The Rules of
Procedure are mere tools intended to facilitate
rather than to frustrate the attainment of justice. A
strict and rigid application of the rules must always
be eschewed if it would subvert their primary
objective of enhancing substantial justice.

Procedural rules myst be liberally interpreted and
applied so as not to frustrate substantial justice
(Quiambao vs. Court of Appeals, 454 SCRA 17,
March 28, 2005). However, to justify relaxation of
the rules, a satisfactory explanation and a
subsequent fulfillment of the requirements have
always been required (Barcenas vs Tomas, 454
SCRA 593, March 31, 2005).

10. QUANTUM OF EVIDENCE (WEIGHT AND
SUFFICIENCY OF EVIDENCE) (RULE 133)

Q: Define weight of evidence.

A: It is the probative value given by the court to
particular evidence admitted to prove a fact in
issue.

Q: When is evidence credible?

A: It is credible if it is admissible and believable and
worthy of belief, such that it can be used by the
courts in deciding a case.

Q: Explain the Equipoise Doctrine in the law of evi-
dence and cite its constitutional and procedural
bases.

A: The doctrine refers to a situation where the
evidence of the parties are evenly balanced or there
is doubt on which side the evidence preponderates.
In such case the decision should be against the
party with the burden of proof (Marubeni Corp. v.
Lirag, G.R. No. 130998, Aug. 10, 2001).

Burden of proof is the duty of a party to present
evidence on the facts in issue necessary to establish
his claim or defense by the amount of evidence
required by law (Sec. 1, Rule 131).

The Constitution provides that no person shall be
deprived of life, liberty or property without due
process of law, nor shall any person be denied the
equal protection of the law (Sec. 1, Art. Ill). In a
criminal case, its constitutional basis is the pre-
sumption of innocence and the requirement of
proof beyond reasonable doubt for conviction.
(1995 Bar Question)

In criminal cases, the equipoise rule provides that
where the evidence is evenly balanced, the
constitutional presumption of innocence tilts the
scales in favor of the accused. (Malana v. People,
G.R. No. 173612, Mar. 26, 2008)

Q: What is the hierarchy of quantum of evidence?

A:

Note: Evidence, to be worthy of credit, must not only
proceed from a credible source but must also be
UST GOLDEN NOTES 2011



304
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

credible in itself. It must be natural, reasonable and
probable as to make it easy to believe (People v.
Peruelo, G.R. No. 50631, June 29, 1981).
Q: Distinguish positive testimony from negative
testimony.

A:
POSITIVE TESTIMONY NEGATIVE TESTIMONY
1. Affirms that a fact did or
did not occur.
2.
3. Entitled to greater weight
since the witness
represents his personal
knowledge of the
presence or absence of a
fact.
4.
5. When a witness declares
of his own knowledge
that a fact did not take
place, it is an affirmation
of a positive testimony.
1. When a witness states
that he did not see or
know the occurrence of a
fact.
2.
3. There is a total disclaimer
of personal knowledge,
hence without any
representation or
disavowal that the fact in
question could or could
not have existed or
happened.

Note: Mere denial, if unsubstantiated by clear and
convincing evidence, has no weight in law and cannot
be given greater evidentiary value than the positive
testimony of the complaining witness. Denial is
intrinsically weak, being a negative and self-serving
assertion (People v. Rodas, G.R. No. 175881, Aug. 28,
2007).

Q: What are the guidelines in the assessment of
credibility of a witness?
A:
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, July 6, 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,
Aug. 31, 2005).

Q: What is motive?

A: It is the moving power which impels one to
action for a definite result (The Revised Penal Code
[Book One] by L. Reyes, p.57, 2001 ed.).
Q: When is evidence of motive relevant?

A:
1. Where the identity of the assailant is in
question;
2. To determine the voluntariness of the
criminal act or the sanity of the accused;
3. To determine from which side the unlawful
aggression commenced, as where the
accused invoked self-defense wherein
unlawful aggression on the part of his
opponent is an essential element;
4. To determine the specific nature of the
crime committed;
5. To determine whether a shooting was
intentional or accidental, the fact that the
accused had personal motives to shoot the
victim being weighty; and
6. Where the accused contends that he acted
in defense of a stranger, since it is essential,
for such defense to prosper, that the
accused was not induced by revenge,
resentment or other evil motive. (Regalado,
Vol. II, pp. 893-894, 2008 ed.)

Q: What is alibi?

A: 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, June 27, 2003).
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, Sept. 11, 2007). When
this is the defense of the accused, it must be
established by positive, clear and satisfactory
evidence.

Note: For the defense of alibi to prosper, the accused
must show that:
1. He 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, Oct. 29, 1954)

Q: What is Out-of-Court Identification?

A: 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;
2. Mug shots: where photographs are shown
to the witness to identify the suspect; or
EVIDENCE


305
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
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, Oct. 6, 1995)

Q: What is the relevance of an eyewitness
identification?

A: It 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, Oct. 14, 2002).

Q: Is a police line-up mandatory to prove the
identity of an offender?

A: 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 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, Nov. 21, 2002).

: When |s "out-of-court |dent|f|cat|on" admissible
and reliable?

A: It is admissible and reliable when it satisfies the
LoLallLy of clrcumsLances" LesL. under Lhe totollty
of cltcomstooces test, the following factors are
considered:
1. WlLness' opporLunlLy Lo vlew Lhe crlmlnal
at the time of the crime;
2. WlLness' degree of aLLenLlon aL LhaL Llme,
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, Oct. 6, 1995)

Q: Is the testimony of only one witness sufficient
to convict the accused?

A: Yes. Truth is established not by the number of
witnesses but by the quality of their testimonies. 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, Aug. 28, 2007).

Q: Define res ipsa loquitur.

A: 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, may permit an inference or raise a
presumption of negligence, or make out a plaintiff's
prima facie case, and present a question of fact for
defendant to meet with an explanation. 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 explanation 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, Dec. 29, 1999).

Q: What are the requisites in applying the doctrine
of res ipsa loquitur?

A:
1. The occurrence of an injury;
2. The thing which caused the injury was under
the control and management of the
defendant;
3. The occurrence was such that in the
ordinary course of things, would not have
happened if those who had control or
management used proper care; and
4. The absence of explanation by the
defendant (Professional Services, Inc. v.
Agana, G.R. No. 126297, Jan. 31, 2007).

Q: Does the application of the doctrine dispense
with the requirement of proof of negligence?

A: No. 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, Dec. 29, 1999)



UST GOLDEN NOTES 2011



306
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES


Q: What is the Rule on Partial Credibility of a
witness?

A: 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, Aug. 8, 2007).

Note: If the testimony of the witness on a material
issue is willfully false and given with an intention to
decelve, Lhe courL may dlsregard all Lhe wlLness'
testimony. Falsus in uno, falsus in omnibus (False in
one thing, false in everything).

Note: This is not a mandatory rule of evidence but is
applied by the courts in its discretion. It deals only with
the weight of evidence and not a positive rule of law.
1he wlLnesses' false or exaggeraLed sLaLemenLs on
other matters shall not preclude the acceptance of
such evidence as is relieved from any sign of
falsehood. The court may accept and reject portions of
Lhe wlLness' LesLlmony dependlng on Lhe lnherenL
credibility thereof. (Regalado, Vol. II, p. 883, 2008 ed.)

: May the tr|a| courts f|nd|ngs as to the
credibility of witnesses be disturbed on appeal?

A: 1he Lrlal courL's flndlngs of facL wlll noL 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, June 16, 2003).

Q: May the uncorroborated testimony of an
accused who turned into a State witness suffice to
convict his co-accused?

A: Yes. It may suffice to convict his co-accused if it is
given unhesitatingly and 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, Mar. 27, 2003).

Q: May the testimony alone of the complaining
party in a rape case sufficient to convict the
accused?

A: Yes. In rape cases, the lone testimony of the
offended party, if free from serious and material
contradictions, is sufficient to sustain a verdict of
conviction. No woman would openly admit that she
was raped and consequently subject herself to an
examination of her private parts, undergo the
trauma and humiliation of a public trial, and
embarrass herself with the need to narrate in detail
how she was raped, if she was not raped at all. This
ruling especially holds true where the complainant
is a minor, whose testimony deserves full credence.
(People v. Esperanza, G.R. Nos. 139217-24, June 27,
2003).

Q: What is the Sweetheart Theory?

A: It is an admission by the accused of sexual
intercourse with the victim but argues that they
were lovers and the act is consensual and
consequently places on the accused the burden of
proving the supposed relationship by substantial
evidence. To be worthy of judicial acceptance, such
defense should be supported by documentary,
testimonial, or other evidence. Corroborative proof
like notes, pictures or tokens that such a
relationship had really existed must be presented
(People v. Hapin, G.R. No.175782, Aug. 24, 2007).

Q: Is extrajudicial confession a sufficient ground
for conviction?

A: It is not sufficient ground for conviction unless
corroborated by evidence of corpus delicti. (Sec. 3)

Q: What is corpus delicti?

A: 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, Apr. 30, 2003).

Q: What are the elements of corpus delicti?

A:
1. Proof of the occurrence of a certain
event; and
2. A person's crlmlnal responslblllLy for Lhe
act (People v. Corpuz, G.R. No. 148919,
Dec. 17, 2002).
Note: The identity of the accused is not a necessary
element of the corpus delicti.

Q: What are the elements of illegal possession of
firearm which constitute the corpus delicti?

A:
1. The existence of the firearm; and
2. That it has been actually held with animus
possidendi by the accused without the
EVIDENCE


307
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
corresponding license therefor. (People v.
Solayao, G.R. No. 119220, Sept. 20, 1996)

a. PROOF BEYOND REASONABLE DOUBT

Q: What is meant by reasonable doubt?

A: It is that state of the case which, after the entire
comparison and consideration of all the evidence
leaves the mind of the judge in that condition that
he cannot say that he feels an abiding conviction to
a moral certainty of the truth of the charge. (People
v. Calma, G.R. No. 127126, Sept. 17, 1998)

Q: What does proof beyond reasonable doubt
require?

A: It only requires moral certainty or that degree of
proof which produces conviction in an unprejudiced
mind. It does not mean such degree of proof as
excluding the possibility of error, produce absolute
certainty. (Basilio v. People, G.R. No. 180597, Nov.
7, 2008)

Q: Must the identity of the accused be proved
beyond reasonable doubt?

A: Yes. When the identity of the accused is not
established beyond reasonable doubt, acquittal
necessarily follows. Conviction for a crime rests on
Lhe sLrengLh of Lhe prosecuLlon's evldence, never
on the weakness of that of the defense.

Note: 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, June 26, 2003).

b. PREPONDERANCE OF EVIDENCE

Q: What are the matters that must be taken into
consideration in determining where the
preponderance of evidence lies?

A:
1. All the facts and circumstances of the case;
2. 1he wlLnesses' manner of LesLlfylng, Lhelr
intelligence, their means and opportunity of
knowing the facts to which there are
testifying;
3. The nature of the facts to which they
testify;
4. The probability or improbability of their
testimony;
5. Their interest or want of interest;
6. Their personal credibility so far as the same
may legitimately appear upon the trial; or
7. The number of witnesses, though the
preponderance is not necessarily with the
greater number (Sec. 1, Rule 133).

c. SUBSTANTIAL EVIDENCE

Q: What is substantial evidence?

A: It is that amount of relevant evidence which a
reasonable mind might accept as adequate to
justify a conclusion. (Sec. 5)

Q: When is substantial evidence sufficient to
establish a fact?

A: In cases filed before administrative or quasi-
judicial bodies, a fact may be deemed established if
it is supported by substantial evidence.

d. CLEAR AND CONVINCING EVIDENCE

Q: What are the instances when clear and
convincing evidence is required as quantum of
proof?

A:
1. Granting or denial of bail in extradition
proceedings (Government of Hong Kong
Special Administrative Region v. Olalia, Jr.,
G.R. No. 153675, April 19, 2005);
2. When proving a charge of bias and partiality
against a judge (Rivera v. Mendoza, A.M.
No. RTJ-06-2013, Aug. 4, 2006);
3. GR: When proving fraud (Alonso v. Cebu
Country Club, Inc., G.R. No. 130876, Dec. 5,
2003)
XPN: Under Art. 1387 of the New Civil Code,
certain alienations of property are
presumed fraudulent.
4. When proving forgery (Citibank, N.A. v.
Sabeniano, G.R. No. 156132, Feb. 6, 2007);
5. When proving ownership over a land in
annulment or reconveyance of title
(Manotok Realty, Inc. v. CLT Realty
Development Corp., G.R. No. 123346, Dec.
14, 2007);
6. 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, July 28, 1999);
7. When proving the allegation of frame-up
and extortion by police officers in most
dangerous drug cases (People v. Boco, G.R.
No. 129676, June 23, 1999);
UST GOLDEN NOTES 2011



308
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

8. 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);
9. When using denial as a defense like in
prosecution for violation of the Dangerous
Drugs Act (People v. Mustapa, G.R. No.
141244, Feb. 19, 2001);
10. To overcome the presumption of due
execution of notarized instruments (Viaje v.
Pamintel, G.R. No. 147792, Jan. 23, 2006);
11. When proving bad faith to warrant an
award of moral damages (Resolution of the
SC in Cual v. Leonis Navigation, G.R. No.
167775, Oct. 10, 2005);
12. 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,
June 27, 2008); or
13. 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, June 25, 2008) (List
of cases: Riano, Evidence: A Restatement for
the Bar, pp. 422-426, 2009 ed.)

B. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
1. WHAT NEED NOT BE PROVED

Q: What are the facts that need not be proved?

A:
1. Those which the courts may take judicial
notice (Rule 129);
2. Those that are judicially admitted (Rule
129);
3. Those that are conclusively presumed (Rule
131); and
4. Those that are disputably presumed but
uncontradicted (Rule 131).

2. MATTERS OF JUDICIAL NOTICE

Q: What is judicial notice?

A: 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 considerations of expediency and
convenience. It displaces evidence, being
equivalent to proof.
Note: Judicial notice fulfils the objective which the
evidence intends to achieve. It is not equivalent to
judicial knowledge or that which is based on the
personal knowledge of the court; rather, it is the
cognlzance of common knowledge." !udlclal noLlce
relieves the parties from the necessity of introducing
evidence to prove the fact notified. It makes evidence
unnecessary.

Q: What are the requisites of judicial notice?

A:
1. The matter must be one of common and
general knowledge;
2. It must be well and authoritatively settled
and not doubtful or uncertain; and
3. It must be one which is not subject to a
reasonable dispute in that it is either:
a. Generally known within the territorial
jurisdiction of the trial court; or
b. Capable of accurate and ready
determination by resorting to sources
whose accuracy cannot reasonably be
questionable (Expertravel & Tours, Inc.
v. CA, G.R. No. 152392, May 26, 2005).
Note: The principal guide in determining what facts
may be assumed to be judicially known is that of
notoriety (Ibid.). The test of notoriety is whether the
fact involved is so notoriously known as to make it
proper to assume its existence without proof.

Q: When |s a matter cons|dered "common
know|edge"?

A: They 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.

Note: Thus, facts which are universally known, and
which may be found in encyclopedias, dictionaries or
other publications, are judicially noticed, provided,
they are of such universal notoriety and so generally
understood that they may be regarded as forming part
of the common knowledge of every person. A court
however cannot take judicial notice of any fact which,
in part, is dependent on the existence or non-existence
of a fact of which the court has no constructive
knowledge (Expertravel & Tours, Inc. v. CA, G.R. No.
152392, May 26, 2005).

Q: In discretionary judicial notice, when is
hearing necessary?

A:
DURING TRIAL
AFTER TRIAL BUT BEFORE
JUDGMENT OR ON
APPEAL
The court on its own
initiative, or on request
of a party, may
announce its intention
The proper court, on its
own initiative or on
request of a party, may
take judicial notice of any
EVIDENCE


309
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
to take judicial notice of
any matter and allow
the parties to be heard
thereon (Sec. 3).
matter and allow the
parties to be heard
thereon if such matter is
decisive of a material issue
in the case.

Note: Hearing is necessary in the foregoing instances
to afford the parties reasonable opportunity to present
information relevant to the propriety of taking such
judicial notice or the tenor of the matter to be
judicially noticed.

a. MANDATORY

Q: What is mandatory notice?

A: If the fact sought to be proved are:
1. Existence and territorial extent of States;
2. Political history, forms of government and
symbols of nationality;
3. Law of nations;
4. Admiralty and maritime courts of the world
and their seals;
5. Political constitution and history of the
Philippines;
6. Official acts of legislative, executive and
judicial departments of the Philippines;
7. Laws of nature;
8. Measure of time; and
9. Geographical divisions (Sec. 1).

b. DISCRETIONARY

Q: What is discretionary notice?

A: Discretionary a court may take judicial notice of
matters which are:
1. Of public knowledge;
2. Capable of unquestionable demonstration;
or
3. Ought to be known to judges because of
their judicial functions (Sec. 2).

3. JUDICIAL ADMISSIONS

Q: What is judicial admission?

A: It is an admission, verbal or written, made by a
party in the course of the proceedings in the same
case, which does not require proof (Sec. 4).

Q: What are the elements of judicial admission?

A:
1. It must be made by a party to the case or
his counsel;
2. It must be made in the course of the
proceedings in the same case; and
3. It can be verbal or written admission. There
is no particular form required.

Q: Distinguish judicial admission from extrajudicial
admission.

A:
JUDICIAL ADMISSIONS
EXTRAJUDICIAL
ADMISSIONS
Those made in the course
of the proceeding in the
same case
Those made out of
court or in a judicial
proceeding other than
the one under
consideration
Do not require proof and
may be contradicted only
by showing that it was
made through palpable
mistake or that no such
admission was made.
Regarded as evidence
and must be offered as
such, otherwise the
court will not consider it
in deciding the case.
Judicial admissions need
not be offered in evidence
since it is not evidence. It
is superior to evidence and
shall be considered by the
court as established.
Requires formal offer
for it to be considered
Conclusive upon the
admitter
Rebuttable
Admissible even if self-
serving
Not admissible if self-
serving
Subject to cross-
examination
Not subject to cross-
examination

Q: When are judicial admissions made?

A: It may be made by the party himself or by his
counsel:
1. In the pleadings filed by the parties;
2. In the course of the trial either by verbal or
written manifestations or stipulations,
including depositions, written
interrogatories and requests for admissions;
or
3. In other stages of the judicial proceedings,
as in pre-trial.

Q: What remedy is available to a party who gave a
judicial admission?

A:
1. Written admission File a motion to
withdraw such pleading, or any other
written instrument containing such
admission.
2. Oral admission The counsel may move for
the exclusion of such admission.



UST GOLDEN NOTES 2011



310
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

Q: What are the rules on admissions made in
pleadings?

A:
GR: 1he facLs alleged ln a parLy's pleadlngs are
deemed admissions and are binding upon that
party.

XPN: Hypothetical admissions made by party
litigant, as when a defendant moves to dismiss
the case based on lack of jurisdiction or sets up
affirmative defenses.

Note: 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. The original must be proved
by the party who relies thereon by formally offering it
in evidence (Torres v. CA, G.R. Nos. L-37420-21, July 31,
1984).

Note: Justice Regalado opines that as amended, it
would appear that Sec. 4, Rule 129 includes
superseded pleadings as judicial admissions (Regalado,
Vol. II, p. 837, 2005 ed.).

Q: What are the rules on admissions made in
pleadings which were not filed with the court?

A:
1. If signed by the party litigant himself
considered as extrajudicial admission.
2. If signed by the counsel not admissible
because a counsel only binds his client with
respect to admissions in open court and in
pleadings actually filed with the court.

Q: What is self-serving evidence?

A: No. The self-serving rule which prohibits the
admission of declaration of a witness applies only
to extrajudicial admissions. If the declaration is
made in open court, such is raw evidence. It is not
self-serving. It is admissible because the witness
may be cross-examined on that matter.

Q: Are judicial admissions made by the accused
during his arraignment binding upon him?

A: No. A plea of guilty entered by the accused may
be 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.

Q: Are admissions made during a pre-trial in a civil
case considered as judicial admissions?

A: Yes. Admissions made in the pre-trial are
deemed judicial admissions because they are made
in the course of the proceedings of the case. (Riano,
Evidence: A Restatement for the Bar, p. 104, 2009
ed.)

a. EFFECT OF JUDICIAL ADMISSIONS

Q: What are the consequences of judicial
admissions?

A:
1. A party who judicially admits a fact cannot
later challenge that fact as judicial
admissions constitute waiver of proof;
production of evidence is dispensed with;
2. No evidence is needed to prove a judicial
admission and it cannot be contradicted
unless it is shown to have been made
through palpable mistake or that no such
admission was made.

b. HOW JUDICIAL ADMISSIONS MAY BE
CONTRADICTED

Q: How can judicial admission be contradicted?

A: It may be contradicted by showing:
1. That it was made through palpable mistake;
2. That no such admission was made (Sec. 4);
or
3. To prevent manifest injustice (e.g. pre-trial
in civil cases, Sec. 7, Rule 18).

4. JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF
NATIONS AND MUNICIPAL ORDINANCE

Q: May courts take judicial notice of foreign laws?

A:
GR: Foreign laws may not be taken judicial
notice of, and have to be proved like any other
fact.
XPN: When said laws are within the actual
knowledge of the court and such laws are:
1. Well and generally known;
2. Actually ruled upon in other cases before
it; and
3. None of the parties claim otherwise.

Q: Suppose a foreign law was pleaded as part of
the defense of the defendant but no evidence was
presented to prove the existence of said law, what
is the presumption to be taken by the court as to
the wordings of said law?

A: The doctrine of processual presumption applies.
The presumption is that the wordings of the foreign
EVIDENCE


311
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
law are the same as the local law (doctrine of
processual presumption) (Northwest Orient Airlines
v. CA, G.R. No. 83033, June 8, 1990; Moran, Vol. 6,
p. 34, 1980 ed.). (1997 Bar Question)

Q: What are the rules with regard to judicial notice
of ordinances?

A:
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 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 also take judicial
notice of ordinances not only because the
lower courts took judicial notice thereof but
because these are facts capable of
unquestionable demonstration. (Riano,
Evidence: A Restatement for the Bar, pp. 90-
91, 2009 ed.)

Q: What is the rule on judicial notice of records of
another case previously tried?

A:
GR: Courts are not authorized to take judicial
notice of the contents of the records of other
cases, even when such cases have been tried or
are pending in the same court, and
notwithstanding the fact that both cases may
have been heard or are actually pending before
the same judge. (Calamba Steel Center, Inc. v.
CIR, G.R. No. 151857, Apr. 28, 2005)

XPNS:
1. When in the absence of any objection, with
the knowledge of the opposing party, the
contents of said other cases are clearly
referred to by title and number in a pending
action and adopted or read into the record
of the latter;
2. When the original record of the other case
or any part of it is actually withdrawn from
Lhe archlves aL Lhe courL's dlscreLlon upon
the request, or with the consent, of the
parties, and admitted as part of the record
of the pending case. (Jumamil v. Cafe, G.R.
No. 144570, Sept. 21, 2005)
3. When the action is closely interrelated to
another case pending between the same
parties;
4. Where the interest of the public in
ascertaining the truth are of paramount
importance;
5. In cases seeking to determine what is
reasonable exercise of discretion or
whether or not the previous ruling is
applicable in a case under consideration; or
6. Where there is finality of a judgment in
another case that was previously pending
determination and therefore, res judicata.
(Herrera, Vol. V, pp. 89-90, 1999 ed.)

Q: Anna and Badong were accused of killing Cathy.
However, only Anna was arrested since Badong
went in to hiding. After trial, Anna was acquitted
of the charge in a decision rendered by Judge
Santos. Subsequently, Badong was arrested and
brought to trial. After trial, Badong was found
guilty of homicide in a decision rendered by Judge
Yantok, the judge who replaced Judge Santos after
the latter retired. On appeal, Badong argues that
Judge Yantok should have taken judicial notice of
the acquittal of Anna rendered by Judge Santos. Is
Badong correct?

A: No. The appreciation of one judge of the
testimony of a certain witness is not binding on
another judge who heard the testimony of the
same witness on the same matter. Each magistrate
who hears the testimony of a witness is called upon
to make his own appreciation of the evidence. It is,
therefore, illogical to argue that because one judge
made a conclusion in a certain way with respect to
one or more of the accused; it necessarily dictates
that the succeeding judge who heard the same case
against the other accused should automatically
make the same conclusion (People v. Langit, G.R.
Nos. 134757-58, Aug. 4, 2000).

Note: All courts must take judicial notice of the
decisions of the Supreme Court as they are duty bound
to know the rulings of the highest tribunal and to apply
them in the adjudication of cases, jurisprudence being
a part of our judicial system

C. OBJECT (REAL) EVIDENCE

1. NATURE OF OBJECT EVIDENCE

Q: Define object evidence.

A: Object evidence, also known as real evidence,
demonstrative evidence, autoptic preference and
physical evidence, is that evidence which is
addressed to the senses of the court (Sec. 1). It is
not limited to the view of an object. It extends to
UST GOLDEN NOTES 2011



312
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

the visual, auditory, tactile, gustatory, and
olfactory. It is considered as evidence of the highest
order.

Q: What are the purposes of authentication of
object evidence?

A:
1. Prevent the introduction of an object
different from the one testified about; and
2. Ensure that there has been no significant
changes ln Lhe ob[ecL's condlLlon.

2. REQUISITES FOR ADMISSIBILITY

Q: What are the requisites for the object evidence
to be admissible?

A: It must
1. Be relevant to the fact in issue;
2. Be authenticated before it is admitted;
3. Not be hearsay;
4. Not be privileged; and
5. Meet any additional requirement set by
law.

Q: What does object evidence include?

A:
1. Any article or object which may be known
or perceived by the use of the senses;
2. Examination of the anatomy of a person or
of any substance taken therefrom;
3. Conduct of tests, demonstrations or
experiments; and
4. Examination of representative portrayals of
the object in question (e.g. maps, diagrams)

Q: May the courts refuse the introduction of
object or real evidence and rely on testimonial
evidence alone?

A: Yes, but only if:
1. Its exhibition is contrary to public morals or
decency;
2. To require its being viewed in court or in
ocular inspection would result in delays,
inconvenience, or unnecessary expenses
which are out of proportion to the
evidentiary value of such object;
3. Such object evidence would be confusing or
misleading, as when the purpose is to prove
the former condition of the object and
there is no preliminary showing that there
has been no substantial change in said
condition; or
4. The testimonial or documentary evidence
already presented clearly portrays the
object in question as to render a view
thereof unnecessary. (Regalado, Vol. II, p.
716, 2008 ed.)

Q: Is exhibition of the object which is repulsive or
indecent absolutely prohibited?

A: No. If a view of the object is necessary in the
interest of justice, such object may still be
exhibited, but the court may exclude the public
from such view. Such view may not be refused if
the indecent or immoral objects constitute the very
basis of the criminal or civil action (e.g. obscene
pictures or exhibits). (Moran, p. 73)

Q: In a criminal case for murder, the prosecution
offered as evidence photographs showing the
accused mauling the victim with several of the
|atters 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
inasmuch as the correctness thereof was testified
to by the companions of the victim (Sison v. People,
G.R. Nos. 108280-83, Nov. 16, 1995).

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
EVIDENCE


313
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
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 testing only two days
after the shooting, it was likely he had already
washed his hands thoroughly, thus removing all
traces of nitrates therefrom (People v. Brecinio, G.R.
No. 138534, Mar. 17, 2004).

3. CATEGORIES OF OBJECT EVIDENCE

Q: What are the categories of object evidence for
purposes of authentication?

A:
1. Unique objects those that have readily
identifiable marks (e.g. a calibre 40 gun with
serial number XXX888)
2. Objects made unique those that are
readily identifiable (e.g. a bolo knife used to
hack a victim which could be identified by a
witness in court)
3. Non-unique objects those which have no
identifying marks and cannot be marked
(e.g. footprints left at a crime scene)

4. DEMONSTRATIVE EVIDENCE

Q: Distinguish real evidence from demonstrative
evidence.

A:
Real evidence Demonstrative Evidence
Tangible object that
played some actual
role in the matter that
gave rise to the
litigation
Tangible evidence that
merely illustrates a matter
of importance in the
litigation
Intends to prove that
the object is used in
the underlying event
Intends to show that the
demonstrative object fairly
represents or illustrates
what it is alleged to be
illustrated

5. VIEW OF AN OBJECT OR SCENE

Q: What is ocular inspect|on or "v|ew"?

A: 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.

Note: It is a discretionary act of the trial court to go to
the place where the object is located, when the object
evidence cannot be brought in courts.

6. CHAIN OF CUSTODY IN RELATION TO SECTION
21 OF THE COMPREHENSIVE DANGEROUS DRUGS
ACT OF 2002

Q: What is Chain of Custody Rule in relation to Sec.
21 of the Comprehensive Dangerous Drugs Act of
2002?

A: It is a method of authenticating evidence. It
requires that the admission of an exhibit be
preceded by evidence sufficient to support a finding
that the matter in question is what the proponent
claims it to be. It would include testimony about
every link in the chain, from the moment the item
was picked up to the time it is offered into
evidence, in such a way that every person who
touched the exhibit would describe how and from
whom it was received, where it was and what
happened Lo lL whlle ln Lhe wlLness' possesslon, Lhe
condition in which it was received and the condition
in which it was delivered to the next link in the
chain.
These witnesses would then describe the
precautions taken to ensure that there had been no
change in the condition of the item and no
opportunity for someone not in the chain to have
possession of the same. (Lopez v. People, G.R. No.
172953, Apr. 30, 2008)

Q: When is there a need to establish a chain of
custody?

A: It is necessary when the object evidence is non-
unique as it is not readily identifiable, was not made
identifiable or cannot be made identifiable, e.g.
drops of blood or oil, drugs in powder form, fiber,
grains of sand and similar objects. (Riano, Evidence:
A Restatement for the Bar, p. 149, 2009 ed.)

Q: What is the purpose of establishing a chain of
custody?

A: To guaranty the integrity of the physical evidence
and to prevent the introduction of evidence which
is not authentic but where the exhibit is positively
identified the chain of custody of physical evidence
is irrelevant. (Ibid.)

7. RULE ON DNA EVIDENCE (A.M. NO. 06-11-5-SC)

Q: In what cases do the Rules on DNA Evidence
apply?

A: It shall apply whenever DNA evidence is offered,
used, or proposed to be offered or used as evidence
UST GOLDEN NOTES 2011



314
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

in all criminal and civil actions as well as special
proceedings (Sec. 1).

a. MEANING OF DNA

Q: What is DNA?

A: DNA (deoxyribonucleic acid) is the chain of
molecules found in every nucleated cell of the body
(Sec. 3, Rule on DNA Evidence). It is the
fundamenLal bulldlng block of a person's enLlre
genetic make-up, which is found in all human cells
and is the same in every cell of the same person
(People v. Umanito, G.R. No. 172607, Oct. 26,
2007).

Q: What is DNA evidence?

A: It constitutes the totality of the DNA profiles,
results and other genetic information directly
generated from DNA testing of biological samples
(Sec. 3).

Q: What is DNA testing?

A: It means verified and credible scientific methods
which include the extraction of DNA from biological
samples, the generation of DNA profiles and the
comparison of the information obtained from the
DNA testing of biological samples for the purpose of
determining, with reasonable certainty, whether or
not the DNA obtained from two or more distinct
biological samples originates from the same person
(direct identification) or if the biological samples
originate from related persons (Kinship Analysis)
(Sec. 3).

Note: The scientific basis of this test comes from the
fact that our differences as individuals are due to the
differences in the composition of our genes. These
genes comprise a chemical substance, the
deoxyribonucleic acid or DNA [The Court Systems
Journal (1999)].

b. APPLICATION FOR DNA TESTING ORDER

Q: May DNA testing be conducted absent a prior
court order?

A: Yes. The Rules on DNA Evidence does 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).

Q: What are the requisites for the issuance of a
DNA testing order?

A: In pending actions, the appropriate court may, at
any time issue a DNA testing order either motu
proprio or upon application of any person who has
a legal interest in the matter in litigation after due
hearing and notice to the parties and upon showing
of the following:
1. A biological sample exists that is relevant to
the case;
2. The biological sample:
3. was not previously subjected to the type of
DNA testing now requested; or
4. was previously subjected to DNA testing,
but the results may require confirmation for
good reasons;
5. The DNA testing uses a scientifically valid
technique;
6. The DNA testing has the scientific potential
to produce new information that is relevant
to the proper resolution of the case; and
7. The existence of other factors, if any, which
the court may consider as potentially
affecting the accuracy or integrity of the
DNA testing (Sec. 4).

Q: Is the order granting the DNA testing
appealable?

A: No. An order granting the DNA testing shall be
immediately executory and shall not be appealable.
Any petition for certiorari initiated therefrom shall
not, in any way, stay the implementation thereof,
unless a higher court issues an injunctive order (Sec.
5).

: Dur|ng A|ex|s tr|a| for rape w|th murder, the
prosecution sought to introduce DNA evidence
against him, based on forensic laboratory
matching of the materials found at the crime scene
and A|ex|s ha|r and b|ood samp|es. A|ex|s counse|
objected, claiming that DNA evidence is
inadmissible because the materials taken from
Alexis were in violation of his constitutional right
against self-incrimination as well as his right of
privacy and personal integrity. Should the DNA
evidence be admitted or not? Reason.

A: The DNA evidence should be admitted. It is not
in violation of the constitutional right against self-
incrimination or his right of privacy and personal
integrity. The right against self-incrimination is
applicable only to testimonial evidence. Extracting a
blood sample and cutting a strand from the hair of
the accused are purely mechanical acts that do not
involve his discretion nor require his intelligence.
(2004 Bar Question)

EVIDENCE


315
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
Q: Is the result of DNA testing automatically
admitted as evidence in the case in which it was
sought for?

A: No. The grant of a DNA testing application shall
not be construed as an automatic admission into
evidence of any component of the DNA evidence
that may be obtained as a result thereof (Sec. 5).

Q: If a DNA test was conducted, what are the
possible results that it may yield?

A:
1. The samples are similar, and could have
originated from the same source (Rule of
Inclusion). In such a case, the analyst
proceeds to determine the statistical
significance of the similarity.
2. The samples are different hence it must
have originated from different sources (Rule
of Exclusion). This conclusion is absolute
and requires no further analysis;
3. The test is inconclusive. This might occur
due to degradation, contamination, failure
of some aspect of protocol, or some other
reasons. Analysis might be repeated to
obtain a more conclusive result (People v.
Vallejo, G.R. No. 144656, May 9, 2002).

Q: What should the courts consider in evaluating
DNA testing results?

A:
1. The evaluation of the weight of matching
DNA evidence or the relevance of
mismatching DNA evidence;
2. The results of the DNA testing in the light of
the totality of the other evidence presented
in the case; and
3. DNA results that exclude the putative
parent from paternity shall be conclusive
proof of non-paternity (Sec. 9).

c. POST-CONVICTION DNA TESTING; REMEDY

Q: To whom is the post-conviction DNA testing
available?

A: 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.

Q: What are the requisites for the applicability of
the Post-conviction DNA testing?

A:
1. Existing biological sample;
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. 6).

Q: What is the remedy of the convict if the post-
conviction DNA testing result is favorable to him?

A: The convict or the prosecution may file a petition
for a writ of habeas corpus in the court of origin. In
case the court, after due hearing, finds the petition
to be meritorious, it shall reverse or modify the
judgment of conviction and order the release of the
convict, unless continued detention is justified for a
lawful cause (Sec. 10).

d. ASSESSMENT OF PROBATIVE VALUE OF DNA
EVIDENCE AND ADMISSIBILITY

Q: What should the courts consider in determining
the probative value of DNA evidence?

A:
1. The chain of custody, including how the
biological samples were collected, how they
were handled, and the possibility of
contamination of the samples;
2. 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;
3. 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
4. The reliability of the testing result (Sec. 7).

Q: What are the things to be considered in
assessing the probative value of DNA evidence?

A:
1. How the samples are collected;
2. How they were handled;
3. The possibility of the contamination of the
samples;
4. The procedure followed in analyzing the
samples;
5. Whether the proper standards and
procedures were followed in conducting the
tests; and
6. The qualification of the analyst who
conducted the tests. (Ibid.)
UST GOLDEN NOTES 2011



316
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

e. RULES ON EVALUATION OF RELIABILITY OF THE
DNA TESTING METHODOLOGY

Q: What are the things to be considered in
evaluating whether or not the DNA testing
methodology is reliable?

A:
1. The falsifiability of the principles or
methods used, that is, whether the theory
or technique can be and has been tested;
2. The subjection to peer review and
publication of the principles or methods;
3. The general acceptance of the principles or
methods by the relevant scientific
community;
4. The existence and maintenance of
standards and controls to ensure the
correctness of data generated;
5. The existence of an appropriate reference
population database; and
6. The general degree of confidence attributed
to mathematical calculations used in
comparing DNA profiles and the significance
and limitation of statistical calculations used
in comparing DNA profiles.

D. DOCUMENTARY EVIDENCE

1. MEANING OF DOCUMENTARY EVIDENCE

Q: Define Documentary Evidence.

A: Documents as evidence consist of writings or any
material containing letters, words, numbers,
figures, symbols, or other modes of written
expressions, offered as proof of their contents (Sec.
2).

Q: May a private document be offered and
admitted in evidence both as documentary
evidence and as object evidence? Explain.

A: Yes. A private document is considered as object
evidence when it is addressed to the senses of the
court or when it is presented in order to establish
certain physical evidence or characteristics that are
visible on the paper and the writings that comprise
the document. It is considered as documentary
evidence when it is offered as proof of its contents.
(2005 Bar Question)

2. REQUISITES FOR ADMISSIBILITY

Q: What are the requisites for admissibility of
documentary evidence?


A:
1. The document must be relevant;
2. The evidence must be authenticated;
3. The document must be authenticated by a
competent witness; and
4. The document must be formally offered in
evidence.

3. BEST EVIDENCE RULE

a. MEANING OF THE RULE

Q: What is Best Evidence Rule?

A:
GR: It provides that when the subject of the
inquiry is the contents of the document, no
evidence shall be admissible other than the
original document itself.

XPNs:
1. When the original has been lost or
destroyed, or cannot be produced in
court, without bad faith on the part of the
offeror;
2. 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;
3. 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;
Note: The voluminous records must be
made accessible to the adverse party so
that the correctness of the portion
produced or summary of the document
may be tested on cross-examination.
4. When the original is a public record in the
custody of a public officer or is recorded
in a public office (Sec. 3)
Note: 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, the best
evidence rule does not apply and
testimonial evidence is admissible.

b. WHEN APPLICABLE

Q: When is this applicable?

A: The rule will come lnLo play only when Lhe
sub[ecL of lnqulry ls Lhe conLenLs of a documenL."

EVIDENCE


317
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
Q: Why is the best evidence rule often described
as a misnomer?

A: Because it merely requires the best evidence
available and, in the absence thereof, allows the
introduction of secondary evidence.

Alternative Answer:
It is a misnomer because it is applicable only to
documentary evidence and not to testimonial and
object evidence. (1994 Bar Question)

Q: At the trial of Ace for violation of the
Dangerous Drugs Act, the prosecution offers in
evidence a photocopy of the marked P100.00 bills
used |n the "buy-bust" operat|on. Ace ob[ects to
the introduction of the photocopy on the ground
that the best evidence rule prohibits the
introduction of secondary evidence in lieu of the
original.
1. Is the photocopy real (object) evidence or
documentary evidence?
2. Is the photocopy admissible in evidence?

A:
1. It is real (object) evidence, because the
marked bills are real evidence.

2. Yes, it is admissible in evidence, because the
best evidence rule does not apply to object
or real evidence. The best evidence rule is
inapplicable since such secondary evidence
is only intended to establish the existence of
a transaction and not the contents of the
document. (1994 Bar Question)

Q: Are affidavits and depositions considered as
best evidence?

A: No, hence, not admissible if the affiants and
witnesses are available as witnesses. (Regalado,
Vol. II, p. 721, 2008 ed.)

Q: What is the best evidence of telegrams and
cables?

A: It depends on the issue to be proved.
1. Contents of the telegram received by the
addressee: the original dispatch received.
2. The telegram sent by the sender: the
message delivered for transmission.
3. Inaccuracy of transmission of the telegram:
both telegrams as sent and received
(Regalado, Vol. II, pp. 722-723, 2008 ed.).

Q: In a civil case for collection of money, Paula
sought to escape liability from a promissory note
by showing that the same was a forgery. She
presented an expert witness to prove that her
signature in the promissory note was forged. Jean
ob[ected to the presentat|on of au|as expert
witness on the ground that the finding of said
witness is based on a mere photocopy of the
promissory note. Is the objection of Jean tenable?

A: Yes. As a rule, forgery cannot be presumed and
must be proved by clear, positive and convincing
evidence and the burden of proof lies on the party
alleging forgery. The best evidence of a forged
signature in an instrument is the instrument itself
reflecting the alleged forged signature.

The fact of forgery can only be established by a
comparison between the alleged forged signature
and the authentic and genuine signature of the
person whose signature is theorized upon to have
been forged. Without the original document
containing the alleged forged signature, one cannot
make a definitive comparison which would
establish forgery. A comparison based on a mere
photocopy or reproduction of the document under
controversy cannot produce reliable results (Heirs
of Gregorio v. CA, G.R. No. 117609, Dec. 29, 1998).

Q: When Anna loaned a sum of money to Blair,
Anna typed a single copy of the promissory note,
which they both signed. Anna made two
photocopies of the promissory note, giving one
copy to Blair and retaining the other copy. Anna
entrusted the typewritten copy to his counsel for
safekeeping. The copy with Anna's counsel was
destroyed when the law office was burned.
1. In an action to collect on the promissory note,
which is deemed to be the "original" copy for
the purpose of the best evidence rule?
2. Can the photocopies in the hands of the
parties be considered "duplicate original
copies"?
3. As counsel for Anna, how will you prove the
loan given by Anna to Blair?

A:
1. The copy that was signed and lost is the
only "original" copy for purposes of the best
evidence rule (Sec. 4 [b]).

2. No, because they merely are photocopies
which were not signed (Mahilum v. CA, G.R.
No. L-17970, July 10, 1966), They constitute
secondary evidence (Sec. 5).

3. It may be proved by secondary evidence
through the photocopies of the promissory
note. When the original document is lost or
destroyed, or cannot be produced in court,
the offeror, upon proof of its execution or
UST GOLDEN NOTES 2011



318
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

existence and the cause of its unavailability
without bad faith on his part, may prove its
contents by a copy, or by a recital of its
contents in some authentic document, or by
the testimony of witnesses in the order
stated (Sec. 5). (1997 Bar Question)

Q: Car was declared in default by the MTC in an
action for unlawful detainer. Plaintiff, Loise was
allowed to present evidence in support of her
complaint. Photocopies of official receipts and
original copies of affidavits were attached to the
position paper submitted by Loise.

Said documents were offered by Loise and
admitted in evidence by the court on the basis of
which the court rendered judgment in favor of
Loise. Car appealed to the RTC claiming that the
judgment is not valid because the MTC based its
judgment on mere photocopies and affidavits of
persons not presented in court. Is the claim of Car
valid? Explain.

A: Yes, although the rules on summary procedure
requires merely the submission of position papers,
the evidence submitted with the position paper
must be admissible in evidence. Photocopies of
official receipts and affidavits are not admissible in
evidence without proof of loss of the originals.
(2000 Bar Question)

Q: What is the Collateral Facts Rule?

A: It states that a document or writing which is
merely collaLeral" Lo Lhe lssue lnvolved ln Lhe 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.

c. MEANING OF ORIGINAL

Q: What is an original document?

A: 1here are Lhree concepLs of orlglnal" documenL:
1. The original of a document is one the
contents of which are the subject of inquiry;
2. When a document is in 2 or more copies
executed at or about the same time, with
identical contents, including signed carbon
copies, all such copies are equally regarded
as originals; or
3. When an entry is repeated in the regular
course of business, one being copied from
another at or near the time of the
transaction, including entries in journals and
ledgers, all the entries are likewise equally
regarded as originals (Sec. 4).

Q: What is the rule on duplicate original?

A: It states that when a document is in two or more
copies executed at or about the same time with
identical contents, all such copies are equally
regarded as originals (Sec. 4b, Rule 130). It may be
introduced in evidence without accounting for the
non-production of the other copies.


d. REQUISITES FOR INTRODUCTION OF
SECONDARY EVIDENCE

Q: What is secondary evidence?

A: Secondary evidence is that which shows that
better or primary evidence exists as to the proof of
the fact in question. 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. (Francisco, p. 68, 1992 ed.)

Note: All originals must be first accounted for before
one can resort to secondary evidence. It must appear
that all of them have been lost or destroyed or cannot
be produced in court. 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.

Q: When may secondary evidence be admitted?

A: It may be admitted only by laying the basis for its
production and such requires compliance with the
following:
1. The offeror must prove the due execution
and existence of the original document;
2. The offeror must show the cause of its
unavailability; and
3. The offeror must show that the
unavailability was not due to his bad faith.

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. (Citibank N.A. Mastercard v.
Teodoro, G.R. No. 150905, Sept. 23, 2003)

Note: 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.


EVIDENCE


319
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
Q: What is the order of presentation of secondary
evidence?

A:
1. Copy of the original;
2. A recital of the contents of the document in
some authentic document; or
3. By the testimony of witnesses (Sec. 5, Rule
130)

Q: What is Definite Evidentiary Rule?

A: 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).

Q: How may the due execution of the document
be proved?

A: It may be proved through the testimony of:
1. The person who executed it;
2. The person before whom its execution was
acknowledged;
3. Any person who was present and saw it
executed and delivered;
4. Any person who thereafter saw and
recognized the signature;
5. One to whom the parties thereto had
previously confessed the execution thereof;
or
6. By evidence of the genuineness of the
signature or handwriting of the maker. (Sec.
20, Rule 132)

Q: How may the loss or destruction be proved?

A: It may be proved by:
1. Any person who knew of such fact;
2. Anyone who, in the judgment of the court,
had 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.

Q: How may the contents be proved?

A: They may be proved by the testimony of:
1. Any person who signed the document;
2. Any person who read it;
3. Any person who heard when the document
was being read;
4. Any person who was present when the
contents of the document were talked over
by the parties to such an extent as to give
him reasonably full information of the
contents; or
5. Any person to whom the parties have
stated or confessed the contents thereof.

Q: May the presentation or the offer of the
original be waived?

A: Yes, if the party against whom the secondary
evidence is offered does not object thereto when
the same is offered in evidence, the secondary
evidence becomes primary evidence. But even
admitted as primary evidence, its probative value
must still meet the various tests by which its
reliability is to be determined. Its admissibility
should not be confused with its probative value.
(Heirs of Teodoro De la Cruz v. CA, G.R. No. 117384,
Oct. 21, 1998)

Q: What facts must be shown by the party offering
secondary evidence if the original is in the custody
of the adverse party?

A:
1. Original is in the possession or under the
control of the opponent;
2. Demand or notice is made to him by the
proponent signifying that the document is
needed;
3. Failure or refusal of opponent to produce
document in court; and
4. Satisfactory proof of existence of document
(Sec. 6).

Note: The party who called for a document is not
obliged to offer it into evidence (Sec. 8).

Q: What is the form of notice required to be given
to the adverse party?

A: No particular form of notice is required 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, Vol. II, p. 726, 2008 ed.)

Q: What is the effect if the refusal or failure of the
adverse party to produce the original is justified?

A: It does not give rise to the presumption of
suppression of evidence, or create an unfavorable
UST GOLDEN NOTES 2011



320
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

inference against him. It only authorizes the
presentation of secondary evidence. (Regalado, Vol.
II, p. 727, 2008 ed.)

Q: Paula filed a complaint against Lynette for the
recovery of a sum of money based on a promissory
note executed by Lynette. 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.

1. Over the objection of Lynette, will Paula be
allowed to testify as to the true agreement or
contents of the promissory note? Why?
2. 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:
1. 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.

2. Yes. The copy in possession of Paula is a
duplicate original because it was executed
at the same time as the original and with
identical contents. Moreover, the failure
of Lynette to produce the original of the
note is excusable because she was not
given reasonable notice, a requirement
under the Rules before secondary
evidence may be presented. (2001 Bar
Question)

Note: The promissory note is an actionable document
and the original or a copy thereof should have been
attached to the complaint. (Sec. 7, Rule 8) In such a
case, the genuineness and due execution of the note, if
not denied under oath, would be deemed admitted.
(Sec. 8, Rule 9)

Q: When Linda died, her common law husband,
Lito and their alleged daughter Nes executed an
extra[ud|c|a| part|t|on of L|ndas estate. 1hereafter,
the siblings of Linda filed an action for partition of
L|ndas estate and annulment of titles and
damages with the RTC. The RTC dismissed the
complaint and rendered 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 L|nda and Lito. Is the trial court
correct?

A: No. 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.
Furthermore, a record of birth is merely a prima
facie evidence of the facts contained therein. It is
not conclusive evidence of the truthfulness of the
statements made there by the interested parties.
Nes should have adduced evidence of her adoption,
in view of the contents of her birth certificate. The
records however are bereft of any such evidence
(Rivera v. Heirs of Villanueva, G.R. No. 141501, July
21, 2006).

Q: What are the requisites for the admission of
secondary evidence when the original consists of
numerous accounts?

A:
1. The original must consist of numerous
accounts or other documents;
2. They cannot be examined in court without
great loss of time; and
3. The fact sought to be established from
them is only the general result of the whole.
(Sec. 3c, Rule 130)

Note: Secondary evidence may consist of a summary
of the voluminous documents or records. (Herrera,
Vol. V, p. 203, 1999 ed.) Such 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. (Compania Maritima v.
Allied Free Workers Union, et.al., G.R. No. L-28999,
May 24, 1977)
EVIDENCE


321
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l

Q: How may the contents of the document be
proved when the original is in the custody of a
public officer?

A: The contents may be proved by:
1. A certified copy issued by the public officer
in custody thereof (Sec. 7, Rule 130); and
2. Official publication. (Herrera, Vol. V, p. 203,
1999 ed.)

Q: What is the effect of not offering a document in
evidence after calling for its production and
inspection?

A: 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. 8, Rule 130)

Q: What are the distinctions between the
production of documents under Sec. 8, Rule 130
and Rule 27 (mode of discovery)?

A:
SEC. 8, RULE 130 RULE 27
Procured by mere notice
to the adverse party,
which is a condition
precedent for the
subsequent introduction
of secondary evidence
by the proponent.
The production of
document is in the nature
of a mode of discovery
and can be sought only by
proper motion in the trial
court and is permitted
only upon good cause
shown.
Presupposes that the
document to be
produced is intended as
evidence for the
proponent who is
presumed to have
knowledge of its
contents.
Contemplates a situation
wherein the document is
either assumed to be
favorable to the party in
possession thereof or that
the party seeking its
production is not
sufficiently informed of
the contents of the same.

4. RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-
7-01-SC)

Q: In what cases do the Rules on Electronic
Evidence applies?

A: It shall apply to all civil actions and proceedings,
as well as quasi-judicial and administrative cases
(Sec. 2, Rule 1).

Q: State the rule on the admissibility of electronic
evidence.

A: 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
the Rules on Electronic Evidence (Sec. 2, Rule 3).

a. MEANING OF ELECTRONIC EVIDENCE;
ELECTRONIC DATA MASSAGE

Q: What is Electronic Evidence?

A: According to Black's Law Dictionary, evidence is
"any species of proof, or probative matter, legally
presented at the trial of an issue, by the act of the
parties and through the medium of witnesses,
records, documents, exhibits, concrete objects, etc.
for the purpose of inducing belief in the minds of
the court or jury as to their contention." Electronic
information (like paper) generally is admissible into
evidence in a legal proceeding..


Q: What is Electronic Data Message?

A: Electronic data message refers to information
generated, sent, received or stored by electronic,
optical or similar means.

b. PROBATIVE VALUE OF ELECTRONIC
DOCUMENTS OR EVIDENTIARY WEIGHT; METHOD
OF PROOF

Q: What are the factors to be considered in
assessing evidentiary weight of an electronic
document?

A:
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 its
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;
UST GOLDEN NOTES 2011



322
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

5. The nature and quality of the information
which went into the communication and
information system upon which the
electronic data message document was
based; or
6. Other factors which the court may
consider as affecting accuracy or integrity
of the electronic document or electronic
data message. (Sec. 1, Rule 7)

C. AUTHENTICATION OF ELECTRONIC DOCUMENTS
AND ELECTRONIC SIGNATURES

Q: How is an electronic document authenticated?

A:
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).

Q: What is Electronic Signature?

A: It refers to any distinctive mark, characteristic
and/or sound in electronic form, representing the
identity of a person and attached to or logically
associated with the electronic data message or
electronic document or any methodology or
procedure employed or adopted by a person and
executed or adopted by such person with the
intention of authenticating, signing or approving an
electronic data message or electronic document.
For purposes of these Rules, an electronic signature
includes digital signatures [Sec. 1 (j), Rule 2].

Q: How is an electronic signature authenticated?

A:
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).

Q: What is the effect of authentication of an
electronic signature?

A: Upon authentication, it shall be presumed that:
1. The electronic signature is that of the
person to whom it correlates;
2. The electronic signature was affixed by that
person with the intention of authenticating
or approving the electronic document to
which it is related or to indicate such
person's consent to the transaction
embodied therein; and
3. The methods or processes utilized to affix or
verify the electronic signature operated
without error or fault (Sec. 3, Rule 6).

Q: What is a Digital Signature?

A: It refers to an electronic signature consisting of a
transformation of an electronic document or an
electronic data message using an asymmetric or
public cryptosystem such that a person having the
initial untransformed electronic document and the
slgner's publlc key can accuraLely deLermlne:
1. whether the transformation was created
using the private key that corresponds to
Lhe slgner's publlc key, and
2. whether the initial electronic document had
been altered after the transformation was
made [Sec. 1(e), Rule 2]

Q: What is the effect of authentication of digital
signatures?

A: Upon authentication, it shall be presumed that:
1. The information contained in a certificate is
correct;
2. The digital signature was created during the
operational period of a certificate;
3. No cause exists to render a certificate
invalid or revocable;
4. The message associated with a digital
signature has not been altered from the
time it was signed; and
5. A certificate had been issued by the
certification authority indicated therein
(Sec. 4, Rule 6).

d. ELECTRONIC DOCUMENTS AND THE HEARSAY
RULE

Q: When is the Hearsay Rule not applicable to
electronic documents?

A: 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
EVIDENCE


323
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
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).

Note: The presumption provided for in Section 1 of
this Rule may be overcome by evidence of the
untrustworthiness of the source of information or the
method or circumstances of the preparation,
transmission or storage thereof (Sec. 2, Rule 8).

e. AUDIO, PHOTOGRAPHIC, VIDEO AND
EPHEMERAL EVIDENCE

Q: May parties present audio, photographic or
video evidence? Discuss.

A: Yes. 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 the accuracy thereof (Sec. 1, Rule 11).

Q: What is ephemeral electronic communication?

A: It refers to telephone conversations, text
messages, chat room sessions, streaming audio,
streaming video, and other electronic forms of
communication the evidence of which is not
recorded or retained. [Sec. 1(k)]

Q: Are text messages admissible as evidence?

A: Yes. Text messages have been classified as
ephemeral electronic communication under Section
1(k), Rule 2 of the Rules on Electronic Evidence, and
shall be proven by the testimony of a person who
was a party to the same or has personal knowledge
thereof (Vidallon-Magtolis v. Cielito Salud, A.M. No.
CA-05-20-P, Sept. 9, 2005).

Q: How shall ephemeral electronic communication
be proven?

A: It shall be proven by the testimony of a person
who was a party to the same or has personal
knowledge thereof. In the absence or unavailability
of such witnesses, other competent evidence be
admitted. A recording of the telephone
conversation or ephemeral electronic
communication shall be covered by the
immediately preceding section. If the foregoing
communications are recorded or embodied in an
electronic document, then the provisions of Rule 5
regarding Authentication of Electronic Documents
shall apply. (Sec. 2, Rule 11)
5. PAROL EVIDENCE RULE

Q: What is Parol Evidence?

A: It is any evidence aliunde (extrinsic evidence)
which is intended or tends to vary or contradict a
complete and enforceable agreement embodied in
a document (Regalado, Vol. II, p. 730, 2008 ed.). It
may refer to testimonial, real or documentary
evidence.

Q: What is the rationale of the parol evidence
rule?

A:
1. To give stability to written statements;
2. To remove the temptation and possibility of
perjury; and
3. To prevent possible fraud.

Q: Distinguish the kinds of ambiguities.

A:
INTRINSIC OR
LATENT
EXTRINSIC OR
PATENT
INTERMEDIATE
On its face, the
writing appears
clear and
unambiguous
but there are
collateral
matters which
make the
meaning
uncertain
Ambiguity is
apparent on the
face of the
writing and
requires that
something be
added to make
the meaning
certain
Ambiguity
consists in the
use of
equivocal
words
susceptible of
two or more
interpretation
Curable by
evidence
aliunde
Cannot be
cured by
evidence
aliunde
Curable by
evidence
aliunde

Q: What |s the pr|nc|p|e of "falsa demonstratio
non nice cum de corpore constat"?

A: lL llLerally means an erroneous descrlpLlon does
noL spoll Lhe acL". It states that the false description
does not injure or vitiate a document if the subject
is sufficiently identified. The incorrect description
shall be rejected as surplusage while the correct
and complete description standing alone shall
sustain the validity of the writing (Regalado, Vol. II,
p. 735, 2008 ed.). Parol evidence is admissible to
prove mistake in the execution of a written
instrument.

Q: May a condition precedent and a condition
subsequent be established by parol evidence?

A: Condition precedent may be established by parol
evidence because there is no varying of the terms
UST GOLDEN NOTES 2011



324
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

of the written contract by extrinsic agreement for
the reason that there is no contract in existence.
There is nothing in which to apply the excluding
rule. Conditions subsequent may not be established
by parol evidence since a written contract already
exists.

a. APPLICATION OF THE PAROL EVIDENCE RULE

Q: What are the requisites for the application of
the parol evidence rule?

A:
1. There must be a valid contract;
2. The terms of the agreement must be
reduced to writing;
3. The dispute is between the parties or their
successors-in-interest; and
4. There is dispute as to the terms of the
agreement.

b. WHEN PAROLE EVIDENCE CAN BE INTRODUCED

Q: What is Parol Evidence Rule?

A: It states that when the terms of an agreement
have been reduced to writing, it is considered as
containing all the terms agreed upon and there can
be, between the parties and their successors-in-
interest, no evidence of such terms other than the
contents of the written agreement (Sec. 9).

Note: Parol evidence rule does not apply, and may not
properly be invoked by either party to the litigation
against the other, where at least one party to the suit
is not a party or privy of a party 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. (Lechugas v. CA et.al., G.R. Nos. L-39972 & L-
40300, Aug. 6, 1986)

Q: What are the exceptions to the parol evidence
rule?

A: A party may present evidence to modify, explain
or add to the terms of the written agreement if he
puts in issue in his pleadings the following:
1. An intrinsic ambiguity, mistake or
imperfection in the written agreement;
2. Failure of the written agreement to express
the true intent of the parties thereto;
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.
(Sec. 9)

c. DISTINCTIONS BETWEEN THE BEST EVIDENCE
RULE AND PAROL EVIDENCE RULE

Q: Distinguish parol evidence rule from best
evidence rule.

A:
PAROL EVIDENCE RULE BEST EVIDENCE RULE
Presupposes that the
original document is
available in court
The original document is
not available or there is a
dispute as to whether said
writing is original
Prohibits the varying of
the terms of a written
agreement

Prohibits the introduction
of secondary evidence in
lieu of the original
document regardless of
whether or not it varies
the contents of the
original
Applies only to documents
which are contractual in
nature except wills
Applies to all kinds of
writings
Can be invoked only when
the controversy is
between the parties to the
written agreement, their
privies, or any party
affected thereby like a
cestui que trust
Can be invoked by any
party to an action whether
he has participated or not
in the writing involved


6. AUTHENTICATION AND PROOF OF DOCUMENTS
(RULE 132)

Q: When is authentication of documents not
required?

A:
1. The writing is an ancient document (Sec.
21);
2. GR: The writing is a public document or
record (Sec. 19);

XPN: A private document required by law to
be recorded while they are public
documents, the public writing is not the
wrlLlng lLself buL Lhe publlc record"
thereof. Such recording does not make the
private writing itself a public document so
as to make it admissible without
authentication.

3. The writing is a notarial document
acknowledged, proved or certified (Sec. 30);
4. The authenticity and due execution of the
document has been expressly admitted or
impliedly admitted by failure to deny the
same under oath; or
EVIDENCE


325
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
5. When such genuineness and due execution
are immaterial to the issue.

a. MEANING OF AUTHENTICATION

Q: What is authentication?

A: It is proving the due execution and genuineness
of the document.

Q: What is document?
A: It is a deed, instrument or other duly authorized
paper by which something is proved, evidenced or
set forth. (Bermejo v. Barrios, G.R. No. L-23614, Feb.
27, 1970)

b. PUBLIC AND PRIVATE DOCUMENTS

Q: What are public and private documents.

A: Public documents are:
1. 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;
2. Documents acknowledge before a notary
public except last wills and testaments; and
3. Public records, kept in the Philippines, of
private documents required by law to the
entered therein.
Note: All other writings are private. (Sec. 19)

Q: Distinguish the classes of documents.

A:
PUBLIC DOCUMENT PRIVATE DOCUMENT
What comprises it
1. 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;
2. Documents
acknowledged before a
notary public except last
wills and testaments;
and
3. Public records, kept in
the Philippines, of
private documents
required by law to be
entered therein (Sec.
19).
All other writings are
private (Sec. 19).
As to authenticity and admissibility as evidence
Admissible as evidence
without need of further proof
Before any private
document offered as
of its genuineness and due
execution
authentic is received
in evidence, its due
execution and
authenticity must be
proved either:

1. By anyone who saw
the document
executed or written;
or
2. By evidence of the
genuineness of the
signature or
handwriting of the
maker.

Any other private
document need only
be identified as that
which it is claimed to
be (Sec. 20).
As to persons bound
Evidence even against third
persons, of the fact which
gave rise to its due execution
and to the date of the latter
Binds only the parties
who executed them
or their privies,
insofar as due
execution and date
of the 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.


Q: What are the rules in interpreting documents?

A:
1. 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.
2. Where there are several provisions or
particulars, such a construction is, if
possible, to be adopted as will give effect to
all.
3. The intention of the parties is to be pursued;
and when a general and a particular
provision are inconsistent, the latter is
paramount to the former. So a particular
intent will control a general one that is
inconsistent with it.
4. The circumstances under which it was
made, including the situation of the subject
thereof and of the parties to it, may be
shown, so that the judge may be placed in
the position of those whose language he is
to interpret.
5. The terms of a writing are presumed to
have been used in their primary and general
UST GOLDEN NOTES 2011



326
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

acceptation, but evidence is admissible to
show that they have a local, technical, or
otherwise peculiar signification, and were
so used and understood in the particular
instance, in which case the agreement must
be construed accordingly.
6. When an instrument consists partly of
written words and partly of a printed form,
and the two are inconsistent, the former
controls the latter.
7. When the characters in which an
instrument is written are difficult to be
deciphered, or the language is not
understood by the court, the evidence of
persons skilled in deciphering the
characters, or who understand the
language, is admissible to declare the
characters or the meaning of the language.
8. When the terms of an agreement have been
intended in a different sense by the
different parties to it, that sense is to
prevail against either party in which he
supposed the other understood it, and
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.
9. When an instrument is equally susceptible
of two interpretations, one in favor of
natural right and the other against it, the
former is to be adopted.
10. An instrument may be construed according
to usage, in order to determine its true
character (Secs. 10-19).

c. WHEN A PRIVATE WRITING REQUIRES
AUTHENTICATION; PROOF OF A PRIVATE WRITING

Q: Is the testimony of a handwriting expert
indispensable to the examination or the
comparison of handwritings in cases of forgery?

A: No. 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.

A finding of forgery does not depend entirely on the
testimonies of handwriting experts, because 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. No. 15958, Apr. 22, 2008).

d. WHEN EVIDENCE OF AUTHENTICITY OF A
PRIVATE WRITING IS NOT REQUIRED (ANCIENT
DOCUMENTS)

Q: What are the requisites for an ancient
document to be exempt from proof of due
execution and authenticity (rule on ancient
document/authentic document rule)?

A:
1. 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
3. That it is unblemished by any alteration or
circumstances of suspicion (Sec. 21).

Note: Ancient document rule applies only if there are
no other witnesses to determine authenticity.

e. HOW TO PROVE GENUINENESS OF A
HANDWRITING

: now |s the genu|neness of a persons
handwriting proved?

A:
1. It may be proved by any witness who actually
saw the person writing the instrument;
2. By any 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 under Secs. 48
& 50 of Rule 130;
3. By a comparison of the questioned
handwriting from the admitted genuine
specimens thereof; or
4. By expert witness (Secs. 20 & 22, Rule 132;
Sec. 49, Rule 130).

f. PUBLIC DOCUMENTS AS EVIDENCE; PROOF OF
OFFICIAL RECORD

Q: How are public records proved?

A: 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, 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.
2. If it is kept in a foreign country
EVIDENCE


327
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
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 accompanied with a
certificate that such officer has the
custody. 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 office
(Sec. 24, Rule 132).

Q: Is a special power of attorney executed and
acknowledged before a notary public in a foreign
country authorizing a person to file a suit against
certain persons in the Philippines admissible in
evidence?

A: No, because a notary public in a foreign country
is not one of those who can issue the certificate
mentioned in Sec. 24, Rule 132 of Rules of Court.
Non-compliance with the said rule will render the
SPA inadmissible in evidence. Not being duly
established in evidence, the SPA cannot be used to
file a suit in representation of another. The failure
to have the SPA authenticated is not a mere
technicality but a question of jurisdiction. (Heirs of
Medina v. Natividad, G.R. No. 177505, Nov. 27,
2008)

Q: May a public record be removed from its office?

A:
GR: No. 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).

Q: What is the probative value of documents
consisting of entries in public records?

A: They are prima facie evidence of the facts stated
therein if entered by a public officer in the
performance of a duty. All other public documents
are evidence, even against a third person, of the
fact which gave rise to their execution and of the
date of the latter (Sec. 23, Rule 132).

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 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 of the Rules of Court
provides LhaL a wrlLLen sLaLemenL slgned 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
enLry."
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. (2003
Bar Question)

g. ATTESTATION OF A COPY

Q: What must the attestation of a copy state?

A: Whenever a copy of a document or record is
attested for the purpose of evidence, 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;
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.

h. PUBLIC RECORD OF A PUBLIC DOCUMENT

Q: How may a public record of a private document
be proved?

A: Any of the following:
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).

i. PROOF OF LACK OF RECORD

Q: How may the absence of a record be proven?

A: 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;
UST GOLDEN NOTES 2011



328
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

2. That despite the diligent search, no record of
entry of a specified tenor is found to exist in
the records of his office.

Note: The written statement must be accompanied by
a certificate that such officer has the custody of official
records (Sec. 28, Rule 132).

j. HOW A JUDICIAL RECORD IS IMPEACHED

Q: How may a judicial record be impeached?

A: It may be impeached by evidence of:
1. Want of jurisdiction in the court or judicial
officer;
2. Collusion between the parties; or
3. Fraud in the party offering the record, in
respect to the proceedings (Sec. 29).

k. PROOF OF NOTARIAL DOCUMENTS

Q: What is the evidentiary weight given to a
notarial document?

A: Notarial documents 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, convincing and more than mere
preponderant evidence.

A notarized document carries the evidentiary
weight conferred upon it with respect to its due
execution, and it has in its favor the presumption of
regularity which may only be rebutted by evidence
so strong and convincing as to exclude all
controversy as to the falsity of the certificate.
Absent such, the presumption must be upheld. The
burden of proof to overcome the presumption of
due execution of a notarial document lies on the
one contesting the same (Pan Pacific Industrial
Sales Co. v. CA, G.R. No.125283, Aug. 9, 2005).

Q: How are notarial documents proved?

A: 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).

Note: The identification documents which may be
presenLed as compeLenL evldence of ldenLlLy" by
signatories to documents or instruments to be
notarized include, but are not limited to, passports,
drlver's llcenses, rofesslonal egulaLlons Commlsslon
identification cards, NBI clearances, police clearances,
posLal lus, voLer's lus, 8arangay cerLlflcaLlons, Cl e-
cards, cards, hllhealLh cards, senlor clLlzen's
cards, Overseas Workers Welfare Administration
(CWWA) lus, ClW lus, seaman's books, allen
certificate of registrations/immigrant certificate of
registrations, government office IDs, certifications
from the National Council for the Welfare of Disabled
Persons (NCWDP), and DSWD certifications.

Notaries public are prohibited from notarizing
documents or instruments of signatories who are not
personally known to them or who otherwise fail to
present competent evidence of their respective
identities (A.M. No. 02-8-13-SC, Re: 2004 Rules on
Notarial Practice, Feb. 19, 2008).

l. HOW TO EXPLAIN ALTERATIONS IN A
DOCUMENT

Q: How should documents with alterations be
presented as evidence for it to be admissible?

A: 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 may show that the alteration:
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. that the alteration did not change the meaning
or language of the instrument.
Note: Failure to do any of the above will make the
document inadmissible in evidence (Sec. 31).

m. DOCUMENTARY EVIDENCE IN AN UNOFFICIAL
LANGUAGE

Q: May a document be admitted into evidence if it
is written in an unofficial language?

A: Documents written in an unofficial language shall
not be admitted as evidence unless accompanied
with a translation into English or Filipino (Sec. 32).

E. TESTIMONIAL EVIDENCE

1. QUALIFICATIONS OF A WITNESS

Q: Who are qualified to be witnesses?

A: All persons who:
1. can perceive and perceiving;
2. can make known their perception to
others (Sec. 20, Rule 130);
3. must take either an oath or an affirmation
(Sec. 1, Rule 132; Riano, Evidence: A
Restatement for the Bar, p. 245, 2009
ed.); and
EVIDENCE


329
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
4. must not possess the disqualifications
imposed by law or the rules (Riano,
Evidence: A Restatement for the Bar, p.
246, 2009 ed.)

NOTE: The ability to make known the perception of the
witness to the court involves two factors: (a) the ability
to remember what has been perceived; and (b) the
ability to communicate the remembered perception.
Consider a witness who has taken the oath and who
has personal knowledge of the event which he is going
to testify (Riano, Evidence: A Restatement for the Bar,
p. 248, 2009 ed).

Q: What are the qualifications of a witness?

A: 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.

Q: What cannot be considered as grounds for
disqualification?

A: GR:
1. Religious or political belief;
2. Interest in the outcome of the case; or
3. Conviction of a crime (Sec. 20).
XPN: Unless otherwise provided by law like the
following:
1. Those convicted of falsification of
document, perjury or false testimony is
prohibited from being witnesses to a will
(Art. 821, NCC).
2. Those convicted of an offense involving
moral turpitude cannot be discharged to
become a State witness (Sec. 17, Rule
119; Sec. 10, R.A. 6981).
3. Those who fall under the disqualification
provided under Secs. 21-24, Rule 130.

2. COMPETENCY VS CREDIBILITY OF A WITNESS

Q: Distinguish competency of a witness from
credibility of a witness.

A:
Competency of a
Witness
Credibility of a Witness
Has reference to the
basic qualifications of a
witness as his capacity
to perceive and his
Refers to the believability
of the witness and has
nothing to do with the law
or the rules. (Ibid).
capacity to
communicate his
perception to others.
(Riano, 2009, p.250)

Q: What is the rule on competency of witness?

A: GR: A person who takes the witness stand is
presumed to possess the qualifications of a
witness. (Presumption of competency)
XPN: 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 for the
insane.

Q: What is the void dire examination?

A: A preliminary examination conducted by the trial
judge where the witness is duly sworn to answer as
to his competency (Competency Examination).

3. DISQUALIFICATIONS OF WITNESSES

Q: Who are disqualified to be witnesses under the
rules?

A: Those who are:
1. Disqualified by reason of mental incapacity or
immaturity;
2. Disqualified by reason of marriage;
3. Disqualified by reason of death or insanity of
adverse party; and
4. Disqualified on the ground 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.

Note: 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.

a. DISQUALIFIED BY REASON OF MENTAL
INCAPACITY OR IMMATURITY

Q: What are the requisites for a witness to be
disqualified under this rule?

A:
1. The proposed witness must be incapable
of making known his perception to
others; and
UST GOLDEN NOTES 2011



330
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

2. The incapacity must exist as of the time of
his production for examination (Riano,
Evidence: A Restatement for the Bar, p.
254, 2009 ed.).

Q: Who are disqualified by reason of mental
incapacity or immaturity?

A:
1. Mental incapacity those whose mental
condition, at the time of their production
for examination, is such that they are
incapable of intelligently making known
their perception to others; he can still be
a witness during his lucid interval. The
disqualification is only absolute if the
insane person is publicly known to be
insane and does not have lucid intervals.

2. Mental immaturity children whose
mental maturity is such as to render them
incapable of perceiving the facts
respecting which they are examined and
of relating them truthfully. (Sec. 21)

Q: When must the incompetence of the witness by
reason of mental incapacity or immaturity exist?

A:
Mental Incapacity Mental Immaturity
The incompetence of the
witness must exist not at
the time of his perception
of the facts but at the time
he is produced for
examination, and consists
in his inability to
intelligently make known
what he has perceived.
(Riano, Evidence: A
Restatement for the Bar, p.
255, 2009 ed.)
The incompetence of
the witness must occur
at the time the witness
perceives the event
including his
incapability to relate his
perceptions truthfully.
(Ibid.)

Q: Does mental unsoundness of the witness at the
time the fact to be testified occurred affect his
competency?

A: No, it only affects his credibility. Nevertheless, as
long as the witness can convey ideas by words or
signs and can give sufficiently intelligent answers to
questions propounded, she is a competent witness
even if she is feeble-minded (People v. De Jesus,
G.R. No. L-39087, Apr. 27, 1984) or is mental
retardate (People v. Gerones, G.R. No. 91116, Jan.
24, 1991) or is a schizophrenic (People v. Baid, G.R.
No. 129667, July 31, 2000).

Q: Cyrus, a deaf-mute, was presented as a witness
in a criminal case. The accused objected to the
presentation of the testimony of Cyrus on the
ground that, being a deaf-mute, he was not a
competent witness. Is the contention of the
accused correct?

A: No. A deaf-mute is not incompetent as a witness.
Deaf-mutes are competent witnesses where they
can:
1. understand and appreciate the sanctity of
an oath;
2. comprehend facts they are going to
testify on; and
3. communicate their ideas through a
qualified interpreter (People v. Tuangco,
G.R. No. 130331, Nov. 22, 2001).

b. DISQUALIFICATION BY REASON OF
MARRIAGE/SPOUSAL IMMUNITY

Q: What is purpose of this disqualification?

A: The rule forbidding one spouse to testify for or
against the other is based on principles which are
deemed important to preserve the marriage
relation as one of full confidence and affection, and
that this is regarded as more important to the
public welfare than that the exigencies of the
lawsuits should authorize domestic peace to be
disregarded for the sake of ferreting out facts
within the knowledge of strangers.

Q: What are the requisites in order for the spousal
immunity to apply?

A:
1. That the spouse for or against whom the
testimony is offered is a party to the case;
2. That the spouses are validly married;
3. The testimony is one that is offered
during the existence of the marriage
(Riano, Evidence: A Restatement for the
Bar, p. 266, 2009 ed.); and
4. The case is not one of the exceptions
provided in the rule. (Herrera, Vol. V, p.
302, 1999 ed.)

Q: What kind of testimony is covered by the
prohibition?

A: The prohibition extends not only to testimony
adverse to the spouse but also to a testimony in
favor of the spouse. (Sec. 22, Rule 130; Riano,
Evidence: A Restatement for the Bar, p. 265, 2009
ed.)

Note: It does not apply in the case of estranged
spouses, where the marital and domestic relations are
so strained that there is no more harmony to be
EVIDENCE


331
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
preserved nor peace and tranquility which may be
disturbed (Alvarez vs Ramirez, October 14, 2005)

Q: What are the exceptions to the spousal
immunity?
A:
1. In a civil case by one against the other; or
2. In a criminal case for a crime committed
by one agalnsL Lhe oLher or Lhe laLLer's
direct descendants or ascendants (Sec.
22), or
3. Where the testimony was made outside
the marriage.

Q: Can this be waived?

A: This can be waived just like any other objection
to the competency of other witnesses. It can be
waived through failure to interpose timely
objection of by calling the other spouse as a
witness.

Q: If an accused marries the prosecution witness
for the sole purpose of sealing the lips of the
witness, will the prohibition apply?

A: Yes. As long as a valid marriage exists at the time
of the trial, the witness-spouse cannot be
compelled to testify even where the crime charged
ls agalnsL Lhe wlLness' person, and even Lhough Lhe
marriage was entered into for the express purpose
of suppressing the testimony.

Q: Distinguish spousal immunity from marital
privilege.

A:
Disqualification By Reason
Of Marriage (Sec. 22)
Disqualification By
Reason Of Marital
Privilege (Sec. 24)
Can be invoked only if one
of the spouses is a party to
the action
Can be claimed
whether or not the
other spouse is a party
to the action
Applies only if the marriage
is existing at the time the
testimony is offered
Can be claimed even
after the marriage is
dissolved
Constitutes an absolute
prohibition for or against
the spouse of the witness
Applies only to
confidential
communications
between the spouses
The married witness would
not be allowed to take the
stand at all because of the
disqualification. Even if the
testimony is, for or against
the objecting spouse.
The married person is
on the stand but the
objection of privilege is
raised when
confidential marital
communication is
inquired into


Q: Who can claim spousal immunity?

A: The spouse who can object is the spouse-party
and not the spouse-witness.

Q: Gizelle was estranged from her husband Mico
for more than a year. Gizelle was temporarily
living with her sister in Pasig City. For unknown
reasons, the house of Ivys s|ster was burned,
killing the latter. Gizelle survived.
Gizelle saw her Mico in the vicinity during the
incident. Later, Mico was charged with arson.
During the trial, the prosecutor called Gizelle to
the witness stand and offered her testimony to
prove that her husband committed arson. Can
Gizelle 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 tranquillity
which may be disturbed, the marital disqualification
no longer applies.

The act of Mico in setting fire to the house of his
sister-in-law, knowing that his wife was there, is an
act totally alien to the harmony and confidences of
marital relation 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, Oct. 14, 2005). (2006 Bar Question)

c. DISQUALIFICATION BY REASON OF DEATH OR
INSANITY OF THE ADVERSE PARTY (DEAD MAN
STATUTE/SURVIVING PARTIES RULE)

Q: What are the elements for the application of
the rule?

A:
1. The defendant in the case is the executor
or the administrator or a representative
of the deceased or the person of unsound
mind;
2. The case is against the executor or the
administrator or a representative of the
deceased or the person of unsound mind;
3. The subject matter of the action is a claim
or demand against the estate of a
deceased person or a person of unsound
mind; and
4. The testimony is as to any matter of fact
occurring before the death of such
deceased person or before such person
UST GOLDEN NOTES 2011



332
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

became of unsound mind. (Sec. 23, Rule
130)

Q: What is covered by the disqualification by
reason of death or insanity of the adverse party?

A: It constitutes a partial disqualification of a
witness wherein he is prohibited from testifying as
to any matter of fact occurring before the death or
insanity of a party to the transaction.

Note: The witness cannot testify on matters which
occurred in the presence and within the hearing of the
decedent to which he might testify on his personal
knowledge if he were alive. Facts favorable to the
deceased or insane person or their representatives are
not prohibited.

Q: What is the reason underlying the adoption of
the dead man statute?

A: To guard against the temptation to give false
testimony in regard of the transaction in question
on the part of the surviving party and to discourage
perjury.

Q: What are the cases not covered by the dead
man statute?

A:
1. Testimony of mere witnesses who are
neither party plaintiffs, nor their
assignors, nor persons in whose behalf a
case is prosecuted, nor to a nominal
party, nor to officers and stockholders of
a plaintiff corporation;
2. If the person or persons mentioned under
the rule file a counterclaim ;
3. Where the deceased contracted with the
plaintiff through an agent and said agent
is alive and can testify, but the testimony
of the plaintiff should be limited to acts
performed by the agent;
4. Land registration cases instituted by the
deceased's represenLaLlve, where Lhe
oppositor is considered as defendant or in
cadastral cases where there are no
oppositors;
5. When there is waiver;
6. If the plaintiff is the executor or
administrator or other representative of a
deceased person, or the person of
unsound mind;
7. When the testimony refers to fraudulent
transactions committed by the persons
mentioned in the rule, provided such
fraud is first established by other
evidence;
8. Negative testimony, that is, testimony
that a fact did not occur during the
lifetime of the deceased;
9. Testimony on the present possession by
the witness of a written document signed
by the deceased because such fact exists
even after the death of decedent;
10. When the defendant/s, though heirs of
the deceased, are sued in their personal
and individual capacities; and
11. In actions against a partnership.

Q: Can this be waived?

A: The disqualification under this rule is waived if
the defendant does not timely object to the
admission of such evidence or testifies on the
prohibited matters or cross-examines thereon.

Q: D|st|ngu|sh dead mans statute from mar|ta|
disqualification rule.

A:
Dead Mans tatute
Marital Disqualification
Rule
Only a partial
disqualification as the
witness is not completely
disqualified but is only
prohibited from testifying
on the matters therein
specified
A complete and absolute
disqualification
Applies only to a civil
case or special
proceeding over the
estate of a deceased or
insane person
GR: Applies to a civil or
criminal case.
XPN: In a civil case by one
spouse against the other
or in a criminal case for a
crime committed by one
spouse against the other
or Lhe laLLer's dlrecL
descendants or
ascendants

d. DISQUALIFICATION BY REASON OF PRIVILEGED
COMMUNICATION

Q: Who may assert the privilege?

A: The holder of the privilege, authorized persons
and persons to whom privileged communication
were made can assert the privilege.

Note: The disqualification applies to both civil and
criminal cases except as to the doctor-patient privilege,
which is applicable only in civil cases. Unless waived,
the disqualification under Sec. 24 remains even after
the various relationships therein have ceased to exist.
The privilege cannot be invoked where confidential
information are made in contemplation of death or in
furtherance or perpetuation of fraud. Unless waived,
EVIDENCE


333
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
the disqualification under Sec. 24 remains even after
the various relationships therein have ceased to exist.

(1) HUSBAND AND WIFE

Q: What are the requisites for the application of
this privilege?

A:
1. There was a valid marriage;
2. The privilege is invoked with respect to a
confidential communication between the
spouses during the said marriage; and
3. The spouse against whom such evidence
is being offered has not given his consent
to such testimony.

Q: When is the privilege inapplicable?

A:
1. In a civil case by one against the other; or
2. In a criminal case for a crime committed
by one against the other or the latter's
direct ascendants or descendants.

Q: Are third persons who overhear the
communication between the spouses bound by
the privilege?

A:
GR: Third persons who, without the knowledge
of the spouses, overhear the communication
are not disqualified to testify.
XPN: When there is collusion and voluntary
disclosure to a third party, that third party
becomes an agent and cannot testify.

Q: Distinguish marital privilege from
disqualification by reason of marriage.

A:
Disqualification by reason
of marriage
Marital privilege
Can be invoked only if one
of the spouses is a party to
the action
Can be claimed whether or
not the spouse is a party to
the action

Applies only if the marriage
is existing at the time the
testimony is offered
Can be claimed even after
the marriage has been
dissolved
Constitutes a total
prohibition against the
spouse of the witness
Applies only to confidential
communications between
the spouses

(2) ATTORNEY AND CLIENT

Q: What are the requisites for the application of
the privilege?

A:
1. Attorney-client relation;
2. The privilege is invoked with respect to a
confidential communication between
them in the course of professional
employment; and
3. The client has not given his consent to the
aLLorney's LesLlmony, or lf Lhe aLLorney's
secretary, stenographer or clerk is sought
to be examined, that both the client and
the attorney have not given their consent.
(Regalado, Vol. II, p. 749, 2008 ed.)

Q: What is the purpose of this privilege?

A: To encourage full disclosure by client to his
attorney of all pertinent matters as to further the
administration of justice.

Q: When is the privilege inapplicable?

A: It does not apply to communications which are:
1. intended to be made public;
2. intended to be communicated to others;
3. intended for an unlawful purpose;
4. received from third persons not acting in
behalf or as agents of the client; or
5. made in the presence of third parties who
are strangers to the attorney-client
relationship. (Regalado, Vol. II, p. 750,
2008 ed.)

Q: What is the test in applying the attorney-client
privilege?

A: The test is whether the communication made is
with the view of obtaining from the lawyer his
professional assistance or advice regardless of the
existence or absence of a pending litigation.

Q: May a lawyer refuse to divulge the identity of
his clients?

A:
GR: Lawyers may not invoke the privilege and
refuse to divulge the name or identity of their
client.
XPNs:
3. Where a strong possibility exists that
reveallng cllenL's name would lmpllcaLe
the client in the very activity for which he
soughL Lhe lawyer's advlce,
4. Where disclosure would open the client
to civil liability; or
5. Where the prosecutors have no case
against the client unless by revealing the
cllenL's name, Lhe sald name would
furnish the only link that would form the
UST GOLDEN NOTES 2011



334
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

chain of testimony necessary to convict
an individual for a crime.

Q: A tugboat owned by Speedy Port Service, Inc.
(SPS) sank in Manila Bay while helping to tow
another vessel, drowning 5 of the crew in the
resulting shipwreck. At the maritime board
inquiry, the 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 instance making memoranda. The heirs of
the 5 victims filed an action for damages against
SPS.
The counsel of the heirs of the 5 victims sent
written interrogatories to Ely, asking whether
statements of the witnesses may be obtained. Ely
refused to comply, arguing that the documents
and information asked are privileged
communication. Is the contention tenable?
Explain.

A: Yes, the contention of counsel for SPS is tenable
considering that he was acting in his professional
capacity in bringing about the statement he
obtained from the witnesses and the memoranda
he made. The notes, memoranda, and writings
made by the counsel in pursuance of his
professional duty, form part of his private and
confidential files in the cases handled by him; hence
privileged (Air Philippines Corp v. Penswell, Inc., G.R.
No. 172835, Dec. 13, 2007).

(3) PHYSICIAN AND PATIENT

Q: What are the requisites for the application of
the privilege?

A:
1. The action involves a civil case;
2. The relation of physician and patient
existed between the person claiming the
privilege or his legal representative and
the physician;
3. The advice or treatment given by him or
any information was acquired by the
physician while professionally attending
to the patient;
4. The information was necessary for the
performance of his professional duty; and
5. The disclosure of the information would
tend to blacken the reputation of the
patient.

Q: What is the purpose of this privilege?

A: The privilege is intended to facilitate and make
safe, full and confidential disclosure by patient to
doctor of all facts, circumstances, and symptoms,
untrammeled 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.

Q: When is the privilege inapplicable?

A: It does not apply to communications which are:
1. Not given in confidence;
2. Irrelevant to the professional
employment;
3. Made for an unlawful purpose;
4. Intended to be made public; or
5. Waived either by contract or law.
(Regalado, Vol. II, p. 751, 2008 ed.)

Q: What are the pieces of information which
cannot be disclosed?
A:
1. Any advice or treat given to the client;
2. Any information acquired in attending
such patient provided that the advice,
treatment or information was made or
acquired in a professional capacity and
was necessary to enable him to act in that
capacity; and
3. That the information sought to be
disclosed would tend to blacken the
reputation of the patient. (Sec. 24c, Rule
130)

Q: Can such privilege be waived?

A: Yes. The waiver may be made expressly or
impliedly. The waiver may be by a contract as in
medical or life insurance. When there is disclosure
by the patient of the information, there is
necessarily, a waiver. When the patient answers
questions on cross on matters which are
supposedly privileged, the waiver also exists. There
could also be waiver by operation of law (sec4, Rule
28 of the Rules of Court) (Riano, p.292).

Q: Is it necessary that the professional relationship
exists between the doctor and patient when the
communication was made?

A: Yes. It is essential that while the doctor was
attending to the patient for curative, preventive or
palliative treatment. It is not however necessary
that the relationship was created through the
voluntary act of the patient. The treatment may
have been given at the behest of another. (Ibid.)

EVIDENCE


335
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
Q: Aimee sought to offer as evidence the
testimony of Dr. Naval to prove that Bob is not the
illegitimate son of Yuring as the latter was sterile.
Bob objected to the admissibility of the said
testimony arguing that the same is covered by the
physician-patient privilege because the testimony
would blacken the reputation of Yuring. It was
alleged that Yuring became sterile because he
contracted gonorrhea. Aimee argues that Yuring is
long dead and, as such, the privilege may not be
invoked.
1. Is the testimony of Dr. Naval covered by
the physician-patient privilege?
2. Does the fact that Yuring is long dead bar
the application of the physician-patient
privilege?

A:
1. Yes. Yuring's sterility arose when he
contracted gonorrhea, a fact which most
assuredly blackens his reputation. In fact,
given that society holds virility at a
premium, sterility alone, without the
attendant embarrassment of contracting
a sexually-transmitted disease, would be
sufficient to blacken the reputation of any
patient (Gonzales v. CA, G.R. No. 117740,
Oct. 30, 1998).

2. No. The privilege of secrecy is not
abolished or terminated because of
death. The purpose of the law would be
thwarted and the policy intended to be
promoted thereby would be defeated, if
death removed the seal of secrecy, from
the communications and disclosures
which a patient should make to his
physician. After one has gone to his grave,
the living are not permitted to impair his
name and disgrace his memory by
dragging to light communications and
disclosures made under the seal of the
statute (Gonzales v. CA, G.R. No. 117740,
Oct. 30, 1998).

Q: Xavier filed a complaint for declaration of
nullity of his marriage with Ysa on the ground of
psychological incapacity. Xavier sought to testify
on a confidential psychiatric evaluation report on
his wife. Ysa objected to kav|ers test|mony on the
ground that it violates the physician-patient
privilege. Is the objection of Ysa correct?

A: No. One of the requisites before the physician-
patient privilege may be invoked is that the person
against whom the privilege is claimed is one duly
authorized to practice medicine, surgery or
obstetrics. Here, the person against whom the
privilege is claimed is not one duly authorized to
practice medicine, surgery obstetrics.
Xavier is simply Ysa's husband who wishes to testify
on a document executed by medical practitioners.
This does not fall within the claimed prohibition.
Neither can his testimony be considered a
circumvention of the prohibition because his
testimony cannot have the force and effect of the
testimony of the physician who examined the
patient and executed the report (Krohn v. CA, G.R.
No. 108854, June 14, 1994).

(4) PRIEST AND PENITENT

Q: What are the requisites for its application?

A:
1. The confession must have been made to
the priest in his professional character
according to the discipline of the church
to which the priest or minister belongs
[Sec. 24(d)]; and
2. Communications made must be
confidential and must be penitential in
character e.g., under the seal of the
confessional (Regalado, Vol. II, p. 752,
2008 ed.)

Q: What is the purpose of this privilege?

A: To allow and encourage individuals to fulfill their
religious, emotional or other needs by protecting
confidential disclosures to religious practitioners.

Q: When is the privilege inapplicable?

A: When the communication is not penitential in
character as when what is divulged is the plan to
commit a crime.

Q: What is the rationale behind the privilege
granted to communications between
minister/priest and the penitent?

A: It is to allow and encourage individuals to fulfill
their religious, emotional or other needs by
protecting confidential disclosures to religious
practitioners (Peralta, Jr., p. 220, 2005 ed.).

(5) PUBLIC OFFICERS

Q: What are the requisites for its application?

A:
1. The communication must have been
made to a public officer;
2. The communication was given to the
public officer in official confidence; and
UST GOLDEN NOTES 2011



336
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

3. The public interest would suffer by the
disclosure of the communication.
(Regalado, Vol. II, p. 752, 2008 ed.)

Q: When is the privilege inapplicable?

A: If what is asked:
1. is useful evidence to vindicate the
innocence of an accused;
2. lessen the risk of false testimony;
3. is essential to the proper disposition of
the litigation; 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 the
information. (Francisco, p. 171, 1992 ed.)

Q: Is the privilege applicable to public officer in
general?

A: No. The privilege only applies to communications
to such officers who have a responsibility or duty to
investigate or to prevent public wrongs, and not to
officials in general (Francisco, p. 139, 1992 ed.).

Note: The court, not the witness, will determine the
necessity of regarding the communication as privileged
(Francisco, p. 143, 1992 ed.).

Q: What is the concept of executive privilege?

A: Certain types of information like military,
diplomatic and other national security matters may
be withheld from the public.

Q: Secretary of Fisheries Nenito Abesamis received
an invitation for questioning in a hearing from the
Senate of the Philippines regarding Fish Feeds
cam. Dur|ng the hear|ng, Abesam|s d|dnt answer
the questions propounded to him by Senator
Renato Pamintuan claiming that his position
entitles him to invoke the executive privilege. Is
his contention correct?

A: No. As held in the case of Senate of the
Philippines vs. Ermita, (G.R. No. 169777, April 25,
2006). The Court upheld the doctrine of executive
privilege; it found the executive order partly
constitutionally defective, specifically Secs. 2(b) and
3 which required government officials below the
heads of executive departments to secure consent
from the President before appearing in
congressional hearings and investigations. The
Court noted that E.O. 464 covers persons which are
a misuse of the doctrine because the privilege is to
be properly invoked in relation to specific
categories of information and not categories of
persons. (Riano, 2009 ed., p. 298)
e. PARENTAL AND FILIAL PRIVILEGE RULE

Q: May a descendant be compelled to testify
against his parents in a criminal case?

A: No, because no person may be compelled to
testify against his parents, other direct ascendants,
children or other direct descendants (Sec. 25).
A descendant may not be compelled to testify
against his parents notwithstanding Article 215 of
the Family Code which allows the compulsion of a
descendant to testify against his parents when such
testimony is indispensable in a crime against the
descendant or by one against the other. Any
conflict between the two provisions should be
resolved in favor of the Rules of Court provision
because although found in a substantive law, the
aforesaid Family Code provision is essentially
procedural in nature.

Alternative Answer:
Yes. Article 215 of the Family Code provides that
No descendant shall be compelled, in a criminal
case, to testify against his parents and
grandparents, except when such testimony is
indispensable in a crime against the descendant or
by one agalnsL Lhe oLher". 1he parenLal and flllal
privilege under the Rules of Court notwithstanding,
it is submitted that the Family Code is superior to
the former since a procedural rule of evidence
cannot impair a substantive law. Hence, a
descendant may be compelled to testify against his
parents if such testimony is indispensable in a crime
against the descendant or by one against the other.

Q: Which should be applied between Rule 130,
Sec. 25 of the Rules of Court and Art. 215 of the
Family Code in case of conflict?

A: It was suggested that the Rules of Court should
apply because it took effect in 1989 as compared
to the Family Code which took effect in 1988. It
may be argued that the former is procedural and
the latter is substantive; however, it was further
suggested that although the Family Code provision
is substantive, it is procedural in character. So, of
these two provisions, the Rules of Court,
promulgated by the Supreme Court, should
prevail.

OTHER PRIVILEGED MATTERS

Q: What other matters are considered privileged?

A:
1. The guardian ad litem shall not testify in
any proceeding concerning any
information, statement, or opinion
EVIDENCE


337
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
received from the child in the course of
serving as a 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. Editors, publisher, or duly accredited
reporter of any newspaper, magazine or
periodical of general circulation cannot be
compelled to reveal the source of any
news report or any information given to
him in confidence, unless a court or a
House or a committee of Congress finds
that such revelation is demanded for
State security (R.A. 1477);
3. Voters may not be compelled to disclose
for whom they voted;
4. Trade secrets cannot be disclosed
although this is not absolute as the court
may compel disclosure where it is
indispensable for doing justice (Francisco,
p. 335, 1992 ed.);
5. Bank deposits are absolutely confidential
in nature except upon written permission
of the depositor, or in cases of
impeachment, or upon lawful order of a
competent court (R.A. 1405; Francisco, p.
335, 1992 ed.);
6. Conciliators and similar officials shall not
testify in any court or body regarding any
matter taken up at the conciliation
proceedings conducted by them (Art. 233,
Labor Code); and
7. Informers, for the protection of their
identity, cannot be compelled to testify
by the prosecutor when their testimony
would merely be cumulative and
corroborative (Herrera, Vol. V, p. 353,
1999 ed.).

4. EXAMINATION OF A WITNESSES

a. RIGHTS AND OBLIGATIONS OF A WITNESS

Q: What are the rights of a witness?
A:
1. To be protected from irrelevant,
improper, or insulting questions, and
from harsh or insulting demeanor;
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 to a penalty for an offense
unless otherwise provided by law (right
against self-incrimination)
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.
5. Not to give an answer, which will tend to
degrade his 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
previous final conviction for an offense
(Sec. 3).

Q: What are the classifications of immunity
statutes?

A:
Use Immunity Transactional Immunity
Prohibits the use of the
witness' compelled
testimony and its fruits in
any manner in connection
with the criminal
prosecution of the witness
Grants immunity to the
witness from
prosecution for an
offense to which his
compelled testimony
relates

Q: May a witness refuse to answer questions
material to the inquiry?

A:
GR: A witness cannot refuse to answer
questions. The witness has the obligation to
answer questions, although his answer may
tend to establish a claim against him (Sec. 3).

XPN: A witness may validly refuse to answer
under the:
1. Right against self-incrimination if his
answer will tend to subject him to
punishment for an offense; or
2. Right against self-degradation if his
answer will have a direct tendency to
degrade his character.

XPN to the XPN: A witness may not invoke the
right against self-incrimination nor 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, Vol. II, pp. 841-
842, 2008 ed.)

Note: Right against self-incrimination pertains only to
natural persons and with respect to testimonial
compulsion only. This right may be invoked in all kinds
of proceedings where testimony is to be taken,
including investigation by legislative bodies.
UST GOLDEN NOTES 2011



338
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

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 llps, agalnsL hls wlll, admlsslon of hls
guilt (Ong v. Sandiganbayan & Office of the
Ombudsman, G.R. No. 126858, Sept. 16, 2005).

Q: Distinguish the right against self-incrimination
of the accused from that of an ordinary witness.

A:
Accused Ordinary Witness
Cannot be compelled to
testify or produce evidence
in the criminal case in which
he is the accused or one of
the accused, he cannot be
compelled to do so even by
subpoena or other process
or order of the court. He
cannot be required either
for the prosecution, for co-
accused or even for himself.
May be compelled to
testify by subpoena,
having only the right
to refuse to answer a
particular
incriminating question
at the time it is put to
him.

Q: May a witness refuse to take the witness stand?

A:
GR: A witness may not refuse to take the
witness stand.
XPNs:
1. An accused in a criminal case; or
2. In civil and administrative cases that
partake the nature of or analogous to a
criminal proceeding. As long as the suit is
criminal in nature, the party thereto can
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, June 8, 2006).

Q: Mr. Talisman, a government official, was invited
by the Senate to be one of the resource persons in
the public hearing in one of its committees. When
Mr. Talisman declined the invitation, the Senate
directed its sergeant-at-arms to place him under
arrest for contempt. He was arrested and brought
to the Senate where he was detained. He filed a
petition for certiorari and prohibition alleging that
his right against self-incrimination was violated. Is
his contention correct?

A: No. The right against self-incrimination may only
be invoked 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. That this right may possibly be violated or
abused is no ground for denying respondent senate
committees their power of inquiry. (In Re: Sabio,
G.R. No. 174340, Oct. 17, 2006).

Q: Is the right against self-incrimination available
to a witness who has been admitted to the
Witness Protection Program?

A: 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. 6981).

Q: Who may be admitted to the Witness
Protection, Security and Benefit Program?

A: 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:
1. 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;
2. his testimony can be substantially
corroborated in its material points;
3. 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 corrupted to prevent him
from testifying, or to testify falsely, or
evasively, because or on account of his
testimony; and
4. 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.
6981).

Q: Who is a State witness?

A: Any person who has participated in the
commission of a crime and desires to be a witness
for the State, can apply and shall be admitted into
EVIDENCE


339
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
the Program if the following circumstances are
present:

1. 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;
2. there is absolute necessity for his
testimony;
3. there is no other direct evidence available
for the proper prosecution of the offense
committed;
4. his testimony can be substantially
corroborated on its material points;
5. he does not appear to be most guilty; and
6. he has not at any time been convicted of
any crime involving moral turpitude.

Note: An accused discharged from an information or
criminal complaint by the court in order that he may
be a State Witness pursuant to Section 9 and 10 of
Rule 119 of the Revised Rules of Court may upon his
petition be admitted to the Program under R.A. 6981 if
he complies with the other requirements of the said
law. R.A. 6981 does not prevent the discharge of an
accused, so that he can be used as a State Witness
under Rule 119 of the Rules of Court (Sec. 10, R.A.
6981).

Q: Can a State witness be liable for contempt or
criminal prosecution?

A: Yes, if he fails or refuses to testify or to continue
to testify without just cause when lawfully obliged
to do so, he shall be prosecuted for contempt. 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. 6981).

b. ORDER IN THE EXAMINATION OF A WITNESS
(1) DIRECT EXAMINATION
(2) CROSS EXAMINATION
(3) RE-DIRECT EXAMINATION
(4) RE-CROSS EXAMINATION

Q: What is the order in the examination of an
individual witness?


A:


Q: What are the purposes of each stage of the
examination?

A:
1. Direct examination To establish the case
of the proponent of the witness. The
purpose ls Lo ellclL facLs abouL Lhe cllenL's
cause of action or defense.

2. Cross examination As a rule, the scope
of this is not confined to the matters
stated by the witness in the direct
examination. (Riano, p. 318). The purpose
of which is:
a. To impeach the credibility of the
testimony;
b. To impeach the credibility of the
witness;
c. To elicit admissions; and
d. To clarify certain matters.

3. Redirect examination The counsel may
elicit testimony to correct or repel any
UST GOLDEN NOTES 2011



340
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

wrong impression or inferences that may
have been created. It may also be an
opportunity to rehabilitate a witness
whose credibility has been damaged
(Riano, p.319). Its purposes are:
a. To afford opportunity to the witness
to explain or amplify his testimony
during cross-examination; and
b. To explain any apparent
contradiction or inconsistency in his
statements.

4. Re-cross examination It is limited to the
new matters brought out on the redirect
examination of the witness and also on
such other matters as may be allowed by
the court in its discretion. The purposes
are:
a. 1o overcome Lhe proponenL's
attempt to rehabilitate the witness;
and
b. To rebut damaging evidence brought
out during cross-examination.

Q: What is the scope of a cross-examination?
A:
1. 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.

2. American rule Cross-examination is
restricted to facts and circumstances
which are connected with the matters
that have been stated in the direct
examination of the witness.

Q: What rule is observed in our jurisdiction?

A:
GR: The English rule is observed in our
jurisdiction.
XPN: The American rule is observed with
respect to cross-examination of an accused or a
hostile witness.

Q: What is the Doctrine of Incomplete Testimony?

A:
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.

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. (People vs
Gorospe, gr. 51513, May 15, 1984)

Q: What is the effect of death or absence of a
witness after the direct examination by the
proponent?

A:
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. 75860, Sept. 17, 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. Seeris,
G.R. No. L-48883, Aug. 6, 1980).
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.).

Q: Is the party who offered the testimony of a
witness bound by such testimony?

A:
GR: Yes, he is bound by the testimony.

XPN: When the witness is the:
1. adverse party;
2. hostile witness;
3. unwilling witness; or
4. a witness required by law to be presented
(forced witness)

Q: Who is a hostile witness?

A: A witness may be considered as unwilling or
hostile only if so declared by the court upon
adequate showing of his adverse interest,
unjustified reluctance to testify or his having misled
the party into calling him to the witness stand (Sec.
12).
EVIDENCE


341
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
(5) RECALLING THE WITNESS

Q: What is the rule on recalling of a witness?

A:
GR: A witness cannot be recalled without leave
of court as the recalling of a witness is a matter
of judicial discretion. (Sec. 9, Rule 132)
XPN:
1. The examination has not been concluded;
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,
Vol. II, p. 848, 2008 ed.)
Note: 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.

c. LEADING AND MISLEADING QUESTIONS

Q: What is leading question?

A: It is one which suggests to the witness the
answer which the examining party desires. It is not
allowed except:
1. On cross-examination;
2. On preliminary matters;
3. 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;
4. To unwilling witness or hostile witness; or
5. Witness 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).

Q: Why are leading questions allowed during
cross-examination?

A: The witness is not the cross-examlnlng parLy's
witness. He is expected to be adverse or hostile to
the cross-examiner. He is not expected to
cooperate.
Note: A question that merely suggests a subject
without suggesting an answer or a specific thing is not
a leading question. E.g. LaLe wheLher anyLhlng
transpired between you and the defendants on the
17
th
of May 2008."

Q: What is misleading question?

A: It is one which assumes as true a fact not yet
testified to by the witness, or contrary to that which
he has previously stated. It is not allowed (Sec. 10)
unless waived or when asking hypothetical
questions to an expert witness. It is not allowed in
any type of examination.

d. METHODS OF IMPEACHMENT OF ADVERSE
PARTY

Q: What is impeachment of a witness?

A: It is a technique employed usually as part of
cross-examlnaLlon Lo dlscredlL a wlLness' LesLlmony
by attacking his credibility. (Riano, Evidence: A
Restatement for the Bar, p. 323, 2009 ed.)

Q: What is meant by impeachment of the adverse
party as a witness?

A: That the witness is the adverse party does not
necessarily mean that the calling party will not be
bound by Lhe former's LesLlmony. 1he facL remalns
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 state of facts
contrary to what the witness testifies. 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
calllng parLy does noL vouch for Lhe wlLness'
veracity, he is nonetheless bound by his testimony
if it is not contradicted or remains unrebutted (Gaw
v. Chua, G.R. No. 160855, April 16, 2008)

Q: What are the methods to impeach the adverse
partys w|tness?

A:
BY
CONTRADICT
ORY
EVIDENCE
BY EVIDENCE THAT
HIS GENERAL
REPUTATION FOR
TRUTH, HONESTY,
OR INTEGRITY OF
THE WITNESS IS
BAD
BY PRIOR
INCONSISTEN
T
STATEMENTS
"LAING 1nL
PREDICATE"
Refers to the
prior
testimony of
the same
witness or
other
evidence
presented by
him in the
same case,
but not the
testimony of
other witness
Since the weight of
Lhe wlLness'
testimony depends
on his credibility, he
may be impeached
by impairing his
credibility by
showing his not
pleasing reputation
but only as regards
his reputation for
truth, honesty or
integrity
Refer to
statements,
oral or
documentary,
made by the
witness
sought to be
impeached on
occasions
other than
the trial in
which he is
testifying
UST GOLDEN NOTES 2011



342
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

Q: May a witness be impeached by evidence of
particular wrongful acts?

A:
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 has been convicted of an offense (Sec. 11).

Q: What are the other modes of impeachment?

A:
1. By showing improbability or
unreasonableness of testimony;
2. By showing bias, prejudice, and hostility;
3. By prior inconsistent acts or conduct;
4. By showing social connections,
occupation and manner of living; or
5. By showing interest. (Francisco, pp. 480-
481, 1992 ed.)

Q: May a party impeach his own witness?

A: GR: A party may not impeach his own witness.
XPN: The witness is an:
1. unwilling or adverse witness so declared
by the court;
2. adverse party; or
3. officer of the adverse party who is a
juridical person (Sec. 12).

Note: In these instances, such witnesses may be
impeached by the party presenting him in all respects
as if he had been called by the adverse party, except
by evidence of his bad character.

e. HOW THE WITNESS IS IMPEACHED BY EVIDENCE
OF INCONSISTENT STATEMENTS (LAYING THE
PREDICATE)

Q: What is the procedure for impeaching a witness
by evidence of prior inconsistent statements?

A:
1. The witness must be confronted with
such statements with the circumstances
of the times, places and the persons
present in which they were made;
2. The witness must be asked whether he
made such statements, and if so, allowed
to explain them; and
3. If the statement be in writing it must be
shown to the witness before any question
is put to him concerning them (Sec. 13).

Note: This procedure is also called the rule on laying
the predicate. Where the previous statements of a
witness are offered as evidence of an admission, and
not merely to impeach him, the rule on laying the
predicate does not apply.

Q: What are the elements of laying the predicate?

A:
1. The alleged statements must be related
to the witness including the
circumstances of the times and places and
the persons present. If the statements are
in writing they must beshown to him;
2. He must be asked whether he made such
statements and also to explain them if he
admits making those statements (Riano,
p. 327).

Q: When is the rule on laying the predicate
inapplicable?

A: It is inapplicable 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, Vol.
II, p. 852, 2008 ed.)

Q: What is the purpose of laying the predicate?

A: The purpose of which is to allow the witness to
admit or deny the prior statement and afford him
an opportunity to explain the same. Non-
compliance with the foundational elements for this
mode of impeachment will be a ground for an
ob[ecLlon based on lmproper lmpeachmenL." Cver
a timely objection, extrinsic evidence of a prior
inconsistent statement without the required
foundation is not admissible. (ibid)

Q: Distinguish laying the predicate from laying the
foundation or basis.

A:
LAYING THE
PREDICATE
LAYING THE FOUNDATION OR
BASIS
Refers only to
impeachment of a
witness through
prior inconsistent
statements
Refers to a situation where
evidence which is otherwise
incompetent will be introduced
into evidence because it falls
under the rules of exclusion.
E.g. under the best evidence
rule, a party must first prove
that a writing was duly executed
and that the original has been
lost or destroyed. Without first
laying the foundation,
secondary evidence will not be
admitted by the court.

EVIDENCE


343
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
f. EVIDENCE OF THE GOOD CHARACTER OF A
WITNESS

Q: Is evidence of good character of a witness
admissible?

A:
GR: No.
XPN: When such character has been
impeached. (Sec. 14)

Q: When can evidence of bad moral character of
the accused be presented?

A: In a criminal case, the prosecution cannot prove
the bad moral character of the accused in its
evidence-in-chief. It can only do so in rebuttal (Sec.
51 [a][2], Rule 130, Rules of Court).

Q: When can evidence of good moral character of
the accused be presented?

A: The accused may prove his good moral character
when pertinent to the moral trait involved in the
offense charged (Sec.51 [a][1], Rule 130, Rules of
Court).

Q: When can evidence of character of the
offended party may be proved?

A: The good or bad moral character of the offended
party may be proved by the accused if it tends to
establish in any reasonable degree the probability
or improbability of the offense charged (Sec. 51
[a][3], Rule 130, Rules of Court). Also, not every
good or bad moral character of the offended party
may be proved under this provision but only those
which would establish the probability or
improbability of the offense charged.

5.ADMISSIONS AND CONFESSIONS

a. RES INTER ALIOS ACTA RULE

Q: What is the principle of res inter alios acta alteri
nocere non debet?

A: 1hls prlnclple llLerally means Lhlngs done
between strangers ought not to injure those who
are noL parLles Lo lL". lL has Lwo branches:
1. The rights of a party cannot be prejudiced
by an act, declaration, or omission of
another (Sec. 28).
2. 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. 34).
Q: What are the exceptions to the res inter alios
acta rule (first branch)?

A:
1. Admission by a co-partner or agent (Sec.
29, Rule 130);
2. Admission by a co-conspirator (Sec. 30,
Rule 130); and
3. Admission by privies (Sec. 31, Rule 130)

Q: What does the rule prohibit? (2
nd
Branch of the
Res Inter Alios Acta Rule)

A: It prohibits the admission of the so-called
ptopeoslty evlJeoce which is 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.

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, July 27,
1998).

b. ADMISSION BY A PARTY

Q: What is admission?

A: It is an act, declaration or omission of a party as
to a relevant fact which may be given in evidence
against him (Sec. 26, Rule 130). It is any statement
of fact made by a party against his interest or
unfavorable to the conclusion for which he
contends or is inconsistent with the facts alleged by
him. (Regalado, Vol. II, p. 754, 2008 ed.)

Note: Sections 26 and 32 of Rule 130 refer to
extrajudicial admissions.

Q: What are the requisites for an admission to be
admissible?

A:
1. Must involve matters of fact and not of
law;
2. Must be categorical and definite;
3. Must be knowingly and voluntarily made;
and
4. MusL be adverse Lo Lhe admlLLer's
interests (Ibid.).


UST GOLDEN NOTES 2011



344
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

Q: What are the classifications of admissions?

A:
1. Express it is a positive statement or act.
2. Implied it is one which may be inferred
from the declarations or acts of a person.
3. Judicial when made in the course of a
judicial proceeding.
4. Extrajudicial when made out of court or
even in a proceeding other than the one
under consideration. (Riano, Evidence: A
Restatement for the Bar, p. 117, 2009 ed.)
5. Adoptive lL ls a parLy's reacLlon Lo a
statement or action by another person
when lL ls reasonable Lo LreaL Lhe parLy's
reaction as an admission of something
stated or implied by the other person. A
Lhlrd person's sLaLemenL becomes Lhe
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 v.
Kendrick Development Corp., G.R.
No. 149576, Aug. 8, 2006)

Q: What is meant by the principle of adoptive
admission?

A: It states that a party may, by his words or
conducL, volunLarlly adopL or raLlfy anoLher's
statement. Where it appears that a party clearly
and unambiguously assented to or adopted the
statements of another, evidence of those
statements is admissible against him. (Riano,
Evidence: A Restatement for the Bar, p. 117, 2009
ed.)

Note: One good example of adoptive admission is 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 JlqolfleJ
exlt ot teslqootloo. 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. (Estrada v. Desierto, G.R. Nos.
146710-15, Apr. 3, 2001)

Q: Distinguish admission from confession.

A:
ADMISSION CONFESSION
A statement of fact which
does not involve an
acknowledgment of guilt
or liability
A statement of fact which
involves an
acknowledgment of guilt
or liability
May be made by third
persons and in certain
cases, are admissible
against a party
Can be made only by the
party himself and, in
some instances, are
admissible against his co-
accused
May be express or
implied
Always express

Q: What is self-serving declaration?

A: It is one which has been made extrajudicially 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.

Q: Distinguish declaration against interest from
admissions.

A:
DECLARATION AGAINST
INTEREST
ADMISSIONS
Must have been made
against the proprietary or
pecuniary interest of the
party
Need not be made
against the proprietary
or pecuniary interest
of the party
Must have been made by a
person who is either
deceased or unable to
testify
Made by a party
himself, and is a
primary evidence and
competent though he
be present in court and
ready to testify
Must be made ante litem
motam. (Regalado, Vol. II,
p. 755, 2008 ed.)
May be made at any
time. (Ibid)
Admissible even against
third persons.
Admissible only against
the party making the
admission.
It is an exception to the
hearsay rule. (Riano,
Evidence: A Restatement for
the Bar, p. 116, 2009 ed.)
It is NOT an exception
to the hearsay rule.
(Ibid.)

c. ADMISSION BY A THIRD PARTY

Q: What are admissions by a third person?

A: Admissions that is receivable in evidence against
the party who has expressly referred another to
EVIDENCE


345
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
him for information in regard to an uncertain or
disputed matter. But such a reference does not
make a person referred to an agent for the purpose
of making general admissions. The declarations are
not evidence, unless strictly within the subject
matter relation to which reference is made.

When the reference was not made to any particular
person but in general, the rule above-stated is not
applicable.

d. ADMISSION BY A CO-PARTNER OR AGENT

Q: What are the requisites of an admission by a co-
partner or agent?

A:
1. The act or declaration of a partner or
agent of the party must be within the
scope of his authority;
2. During the existence of the partnership or
agency; and
3. After the partnership or agency is shown
by evidence other than such act or
declaration (Sec. 29).

Q: Are admissions made after a partnership has
been dissolved fall within the exception?

A:
GR: No, 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,
Vol. II, p. 759, 2008 ed.)

e. ADMISSION BY A CO-CONSPIRATOR

Q: What are the requisites of an admission by a co-
conspirator?

A:
1. The declaration or act be made or done
during the existence of the conspiracy;
2. The declaration or act must relate to the
conspiracy; and
3. The conspiracy must be shown by
evidence other than the declaration or act
(evidence aliunde) (Sec. 30)

Q: Are extrajudicial admissions made by a
conspirator after the conspiracy has terminated
and even before trial admissible against the co-
conspirator?

A: No, except in the following cases:
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-consplraLor's
participation in the offense. (Regalado,
Vol. II, p. 761, 2008 ed.)

f. ADMISSION BY PRIVIES

Q: What are the requisites of an admission by
privies?

A:
1. There must be privity between the party
and the declarant;
2. The declarant as predecessor-in-interest
made the declaration while holding the
title to the property; and
3. The admission relates to the property
(Sec. 31).

g. ADMISSION BY SILENCE

Q: When is there an admission by silence?

A: 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 to do so. Such may be given in evidence
against him. (Sec. 32, Rule 130)

Q: What are the requisites of an admission by
silence?

A:
1. He must have heard or observed the act
or declaration of the other person;
2. He must have had the opportunity to
deny it;
3. He must have understood the statement;
4. He must have an interest to object, such
that he would naturally have done so, if
the statement was not true;
5. The facts were within his knowledge; and
6. The fact admitted or the inference to be
drawn from his silence is material to the
UST GOLDEN NOTES 2011



346
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

issue (Sec. 32, Rule 130; People v.
Paragsa, G.R. No. L-44060, July 20, 1978).

Q: When is the rule on admission by silence
inapplicable?

A: The rule does not apply when a person is under
an official investigation. For the silence of a person
under a custodial investigation for the commission
of an offense has the right to remain silent and to
be informed of that right. (Sec. 12, Art. III, 1987
Constitution; Riano, Evidence: A Restatement for
the Bar, p. 126, 2009 ed.)

h. CONFESSIONS

Q: Define confession.

A: It is a categorical acknowledgment of guilt made
by an accused of the offense charged or of any
offense necessarily included therein, without any
exculpatory statement or explanation (Sec. 33;
Regalado, Vol. II, p. 764, 2008 ed.).

Note: If the accused admits having committed the act
in question but alleges a justification therefor, the
same is merely an admission. (Ibid.)

Q: What are the classifications of confession?

A:
1. Judicial confession is one made by the
accused before a court in which the case
is pending and in the course of legal
proceedings therein and, by itself, can
sustain conviction. It is governed by Secs.,
1, 3 & 4 of Rule 116.
2. Extrajudicial confession is one made in
any other place or occasion and cannot
sustain a conviction unless corroborated
by evidence of corpus delicti. It is
governed by Sec. 33 of Rule 130.

Q: What are the requisites for a confession to be
admissible as evidence?

A:
1. It must involve an express and categorical
acknowledgement of guilt;
2. Facts admitted must be constitutive of a
criminal offense;
3. It must have been given voluntarily;
4. It must have been intelligently made, the
accused realizing the importance or legal
significance of his act; and
5. There must have been no violation of Sec,
12 (Miranda rights), Art. III (Bill of Rights)
of the 1987 Constitution (Regalado, Vol.
II, p. 765, 2008 ed.).
Q: May the extra-judicial confession of an accused
be admitted in evidence against his co-accused?

A:
GR: An extrajudicial confession is not admissible
agalnsL Lhe 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-consplraLor's exLra[udlclal
confession is corroborated by other
evidence of record (Regalado, Vol. II, pp.
772-773, 2008 ed.).

Q: Atty. Franklin V. Tamargo and his eight-year-old
daughter, Gail, were shot and killed. A certain
Reynaldo Geron surfaced and executed an
affidavit stating that a certain Lucio Columna told
him that he was ordered to kill Atty. Tamargo by
Lloyd Antiporda. Columna during his detention
executed an extrajudicial confession where he
implicated Antiporda to the crime.

However, in a letter, Columna disowned the
contents of his affidavit and narrated how he had
been tortured until he signed the extrajudicial
confession. He stated that Antiporda had no
participation in the killings. The prosecutor
dismissed the charges. On appeal, DOJ, initially
reversed the dismissal but on MR subsequently
ordered the withdrawal of the information. On the
contrary, the RTC held that there was probable
cause to hold the Antiporda for trial. CA held that
the RTC judge gravely abused her discretion. Was
the extrajudicial confession of Columna admissible
as evidence?

A: Columna's exLra[udlclal confesslon affldavlL was
not admissible as evidence against Antiporda in
view of the rule on res inter alios acta. The rule on
EVIDENCE


347
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
res inter alios acta provides that the rights of a
party cannot be prejudiced by an act, declaration,
or omission of another. Consequently, an
extrajudicial confession is binding only on the
confessant, is not admissible against his or her co-
accused and is considered as hearsay against them.

An exception to the res inter alios acta rule is an
admission made by a conspirator under Sec. 30,
Rule 130 of the Rules of Court. This rule prescribes
that the act or declaration of the conspirator
relating to the conspiracy and during its existence
may be given in evidence against co-conspirators
provided that the conspiracy is shown by
independent evidence aside from the extrajudicial
confession.

Considering the paucity and inadmissibility of the
evidence presented against the Antiporda, it would
be unfair to hold them for trial (Tamargo v.
Awingan, G.R. No. 177727, Jan. 19, 2010).

Q: What is the doctrine of interlocking
confessions?

A: 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 laLLer's acLual parLlclpaLlon ln Lhe
commission of the crime.

i. SIMILAR ACTS AS EVIDENCE

Q: What do similar acts of evidence prohibit?

A: The rule prohibits the admission of the so-called
propenslLy evldence" whlch ls evldence LhaL Lends
to show that what a person has done at one time is
probative of the contention that he has done a
similar act at another time. 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.
(Cruz v. Court of Appeals, 293 SCRA 239).

Q: When is evidence of similar acts or previous
conduct admissible?

A: It is admissible where such evidence may prove:
1. Specific intent;
2. Knowledge;
3. Identity;
4. Plan;
5. System;
6. Scheme;
7. Habit;
8. Custom;
9. Usage; and
10. The like (Sec. 34, Rule 130)


6. HEARSAY RULE

a. MEANING OF HEARSAY

Q: Define hearsay evidence.

A: Any evidence, whether oral or documentary, and
its probative value is not based on personal
knowledge of the witness but on the knowledge of
some other person not on the witness stand. It also
includes all assertions where, though derived from
personal knowledge, the adverse party is not given
an opportunity to cross-examine. (1999 Bar
Question)

Q: What are the elements of hearsay evidence?

A:
1. There must be an out-of-court statement;
and
2. That the statement made out of court, is
repeated and offered by the witness in
court to prove the truth of the matters
asserted by the statement. (Riano,
Evidence: A Restatement for the Bar, p.
348, 2009 ed.)

Q: What are the two concepts of hearsay
evidence?

A:
1. Any evidence, whether oral or
documentary, is hearsay if its probative
value is not based on the personal
knowledge of the witness but on the
knowledge of some other person not on
the witness stand. (Regalado, Vol. II, p.
776, 2008 ed.)
2. It also includes all assertions which have
not been subjected to cross-examination
by the adverse party at the trial in which
they are being offered against him.
(Herrera, Vol. V, p. 581, 1999 ed.)

b. REASON FOR EXCLUSION OF HEARSAY
EVIDENCE

Q: What is the hearsay rule?

A: It states that a witness can testify only to those
facts which he knows of based on his personal
UST GOLDEN NOTES 2011



348
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

knowledge or those which are derived from his own
perception. (2007 Bar Question)

Q: What is the rationale of excluding hearsay
evidence?

A: There is no opportunity for cross-examination
hence it is not subject to the test of truth.

Q: Brothers Billy & Luis were charged with murder
for k||||ng Vhongs father. Vhong, however, was
charged with parricide for being a co-principal to
the crime. The two cases were tried jointly not
until the two brothers withdrew their not guilty
plea for murder. 1hus, on|y Vhongs case was tr|ed
on the merits. The prosecution offered in evidence
the affidavits of Billy & Luis containing their extra-
judicial confessions. The two brothers were,
however, not presented by the prosecution on the
witness stand. Thereafter, the trial court convicted
the accused. Is the trial court correct?

A: No. The failure to present Billy and Luis gives the
affidavits the character of hearsay. It is hornbook
doctrine that unless the affiants themselves take
the witness stand to affirm the averments in their
affidavits must be excluded from the judicial
proceeding, being inadmissible hearsay. The
voluntary admission of an accused made
extrajudicially is not admissible in evidence against
his co-accused when the latter had not been given
an opportunity to hear him testify and cross-
examine him (People v. Quidato, Jr., G.R. No.
117401. Oct. 1, 1998)

Q: Distinguish hearsay evidence and opinion
evidence. (2004 Bar Question)

A:
HEARSAY EVIDENCE OPINION EVIDENCE
Consists of testimony
that is not based on
personal knowledge of
the person testifying
Expert evidence based on
the personal knowledge,
skill, experience or training
of the person testifying and
evidence of an ordinary
witness on limited matters

Q: Ben was charged with robbery and was arrested
by police operatives by virtue of a warrant of
arrest. In a press conference called by the police,
Ben admitted that he had robbed the victim. The
prosecution presented in evidence a newspaper
clipping of the report of the reporter who was
present during the press conference stating that
Ben admitted the robbery. Is the newspaper
clipping admissible in evidence against Ben?

A: Yes. Regardless of the truth or falsity of a
statement, the hearsay rule does not apply and the
statement may be shown where the fact that it is
made is relevant. Evidence as to the making of such
statement is not secondary but primary, for the
statement itself may constitute a fact in issue or be
circumstantially relevant as to the existence of such
fact (Gotesco Investment Corp. v. Chatto, G.R. No.
87584, June 16, 1992). (2003 Bar Question)

Q: What are the classifications of out-of-court
statements?

A:
1. Hearsay Its probative force depends, in
whole or in part, on the competency and
credibility of some persons other that the
witness by whom it is sought to produce it
(Estrada v. Desierto, G.R. Nos. 146710-15
& 146738, Apr. 3, 2001). It is inadmissible
as evidence.
2. Non-hearsay This occurs when the
purpose for introducing the statement is
not to prove the truth of the facts
asserted therein but only the making of
the statements and are admissible in
evidence when the making of the
statement is relevant. These are the so-
called independently relevant statements.
3. Exceptions to the hearsay rule Those
which are hearsay but are considered as
exceptions to the hearsay rule and are
therefore admissible. (Secs. 37-47, Rule
130)

Q: What are independently relevant statements?

A: 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, G.R. Nos. 146710-15 & 146738, Apr. 3,
2001).

They are relevant since they are the facts in issue or
are circumstantial evidence of the facts in issue.

Q: What are the classifications of independently
relevant statements?

A:
1. Those statements which are the very facts
in issue;
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
EVIDENCE


349
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
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.

c. EXCEPTIONS TO THE HEARSAY RULE

Q: What are the exceptions to the hearsay rule?

A:
1. Dying declaration;
2. Declaration against interest;
3. Act or declaration about pedigree;
4. Family reputation or tradition regarding
pedigree;
5. Common reputation;
6. Part of the res gestae;
7. Entries in the course of business;
8. Entries in official records;
9. Commercial lists and the like;
10. Learned treaties;
11. Testimony or deposition at a former trial.

(1) DYING DECLARATION (SEC. 37)

Q: Define dying declaration.

A: The ante mortem statements made by a person
after the mortal wound has been inflicted under the
belief that the death is certain, stating the fact
concerning the cause of and the circumstances
surrounding the attack.

Q: What are the requisites of dying declaration to
be considered as an exception to the hearsay rule?

A:
1. The declaration is one made by a dying person;
2. The declaration was made by said dying person
under a consciousness of his impending death;
3. The declaration refers to the cause and
circumstances surrounding the death of the
declarant and not of anyone else;
4. The declaration is offered in a case wherein
Lhe declaranL's deaLh ls Lhe sub[ecL of Lhe
inquiry; and
5. The declarant is competent as a witness
had he survived. (Geraldo v. People, G.R.
No. 173608, Nov. 20, 2008; Riano,
Evidence: A Restatement for the Bar, p.
370, 2009 ed.)

Q: What factors should be considered in
determining whether the declarant is conscious of
his impending death?
A:
1. Utterances;
2. Actual character and seriousness of his
wounds; and
3. 8y Lhe declaranL's conducL and Lhe
circumstances at the time he made the
declaration, whether he expected to
survive his injury.

Note: 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, Apr. 3, 2002).

(2) DECLARATION AGAINST INTEREST (SEC. 38)

Q: What are the requisites for the admissibility of
declaration against interest?

A:
1. That the declaration is one made by a
dying person;
2. That the declaration was made by said
dying person under a consciousness of his
imminent death;
3. That the declaration refers to the cause
and circumstances surrounding the death
of the declarant and not of anyone else;
4. That the declaration is offered in a case
where Lhe declaranL's deaLh ls Lhe sub[ecL
of the inquiry;
5. The delcarant is competent as a witness
had he survived;
6. The declarant should have died. (Riano,
p.379)

Q: Distinguish declaration against interest from
admission against interest.

A:
DECLARATION AGAINST
INTEREST
ADMISSION AGAINST
INTEREST
Made by a person who is
neither a party nor in
privity with a party to the
suit and are secondary
evidence but constitute an
Made by a party to a
litigation or by one in
privity with or identified
in legal interest with
such party.
UST GOLDEN NOTES 2011



350
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

exception to the hearsay
rule.
Admissible only when the
declarant is unavailable as
a witness.
Admissible whether or
not the declarant is
available as a witness.

Q: Harry Pattinson was charged with the crime of
kidnapping of Edward Radcliffe. One of the
testimonies presented by the prosecution was that
of Emma Granger, she testified that Edward
conf|ded to her that he and narrys w|fe 8e||a
were having an affair. Undoubtedly, his wife's
infidelity was ample reason for Harry to
contemplate revenge. Consequently, the trial
court convicted Harry based on the testimonies of
the witnesses. Was the testimony of Emma
admissible as evidence?

A: ?es. Ldward's revelaLlon Lo Lmma regardlng hls
llllclL relaLlonshlp wlLh Parry's wlfe ls admlsslble ln
evidence, pursuant to Section 38, Rule 130 of the
Revised Rules on Evidence. With the deletion of the
phrase "pecuniary or moral interest" from the
present provision, it is safe to assume that
"declaration against interest" has been expanded to
include all kinds of interest, that is, pecuniary,
proprietary, moral or even penal.

Hector having
been missing since his abduction, cannot be called
upon to testify. His confession to Emma, definitely a
declaration against his own interest, since his affair
with Bella was a crime, is admissible in evidence

because no sane person will be presumed to tell a
falsehood to his own detriment. (People v.
Theodore Bernal, G.R. No. 113685, June 19, 1997)

(3) ACT OR DECLARATION ABOUT PEDIGREE (SEC.
39)

Q: What are the requisites for the admissibility of
acts or declarations about pedigree?

A:
1. The declarant is dead or unable to testify;
2. The pedigree should be in issue;
3. The declarant must be a relative of the
person whose pedigree is in question;
4. The declaration must be made 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.
(Tecson v. COMELEC, G.R. No. 161434,
Mar. 3, 2004)



: What does "ped|gree" |nc|ude?

A: It includes:
1. Relationship;
2. Family genealogy;
3. Birth;
4. Marriage;
5. Death;
6. Dates when and the place where these
facts occurred;
7. Names of the relatives; and
8. Facts of family history intimately
connected with pedigree. (Sec. 39, Rule
130)

(4) FAMILY REPUTATION OR TRADITION
REGARDING PEDIGREE (SEC. 40)

Q: What are the requisites for the admissibility of
family reputation or tradition regarding pedigree?

A:
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; and
3. The witness testifying to the reputation or
tradition regarding pedigree of the person
concerned must be a member of the
family of said person either by
consanguinity or affinity.

Q: What are the ways to establish family
reputat|on or trad|t|on |n respect to ones
pedigree?

A:
1. Through testimony in open court of a
witness who must be a member of the
family either by consanguinity or affinity;
2. Through entries in:
a. Family bible;
b. Family books or charts;
c. Engravings on rings; or
d. Family portraits and the like.

Q: Distinguish Sec. 39 from Sec. 40.

A:
SECTION 39 SECTION 40
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
EVIDENCE


351
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
Relation of the declarant
and the person subject of
the inquiry must be
established by
independent evidence
The witness is the one to
whom the fact relates, it
is not necessary for him
to establish by
independent evidence his
relationship to the family
(Francisco, p. 292, 1992
ed.)
Testimony is about what
declarant, who is dead or
unable to testify, has said
concerning the pedigree
of the family
Testimony is about family
reputation or tradition
covering matters of
pedigree

(5) COMMON REPUTATION (SEC. 41)

Q: What is common reputation?

A: It is the definite opinion of the community in
which the fact to be proved is known or exists. It
means the general or substantially undivided
reputation, as distinguished from a partial or
qualified one, although it need not be unanimous.
(Regalado, Vol. II, p. 787, 2008 ed.)

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. (Ibid.)

Q: What are the requisites for the admissibility of
common reputation?

A:
1. The facts must be of public or general
interest and more than 30 years old;
2. The common reputation must have been
ancient, i.e. 30 years old;
3. The reputation must have been one
formed among a class of persons who
were in a position to have some sources
of information and to contribute
intelligently to the formation of the
opinion; and
4. The common reputation must have been
existing previous to the controversy.

Q: What can be established by common
reputation?

A:
1. Matters of public interest more than 30
years old;
2. Matters of general interest more than 30
years old;
3. Matters respecting marriage or moral
character and related facts;
4. Individual moral character.

Q: What are the reasons for the admissibility of
common reputation?

A:
1. Necessity arising from the inherent
difficulty of obtaining any other evidence
than that in the nature of common
reputation; and
2. Trustworthiness of the evidence arising
from:

a. The supposition that the public is
conversant with the subject to be
proved because of their general
interest therein; and
b. The fact that the falsity or error of
such evidence could be exposed or
corrected by other testimony since
the public are interested in the
same. (Francisco, pp. 296-297, 1992
ed.)

(6) RES GESTAE (SEC.42)

Q: What is res gestae?

A: It is a Latin phrase which literally means "things
done." As an exception to the hearsay rule, it refers
to those exclamations and statements 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 spontaneous reactions or utterances
inspired by the excitement of the occasion, and
there was no opportunity for the declarant to
deliberate and fabricate a false statement (Capila v.
People, G.R. No. 146161, July 17, 2006).

Q: What are the requisites for the admissibility of
res gestae?

A:
1. The principal act or the res gestae is a
startling occurrence;
2. The statement is spontaneous or was
made before the declarant had time to
contrive or devise, and the statement is
made during the occurrence or
immediately prior or subsequent thereto;
and
3. The statement made must concern the
occurrence ln quesLlon and lL's
immediately attending circumstances
(Capila v. People, G.R. No. 146161, July
17, 2006).


UST GOLDEN NOTES 2011



352
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

Q: Distinguish res gestae from dying declaration.

A:
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 or that of a third
person
Can be made by the
victim only
May precede, or
accompany or follow the
principal act
Confined to matters
occurring after the
homicidal act
Justification is the
spontaneity of the
statement
Justification is the
trustworthiness, being
given by the person who
was aware of his
impending death

Q: What is the reason for the rule on res gestae?

A: The reason for the rule is human experience. It
has been shown that under certain external
circumstances of physical or mental shock, the state
of nervous excitement which occurs in a spectator
may produce a spontaneous and sincere response
to the actual sensations and perceptions produced
by the external shock.
As the statements or utterances are made under
the immediate and uncontrolled domination of the
senses, rather than reason and reflection, such
statements or utterances may be taken as
expressing the real belief of the speaker as to the
facts he just observed. The spontaneity of the
declaration is such that the declaration itself may
be regarded as the event speaking through the
declarant rather than the declarant speaking for
himself (Ibid.).

Q: What are the two types of res gestae?

A:
1. Verbal Acts Utterances which
accompany some act or conduct to which
it is desired to give legal effect. The res
gestae is the equivocal act material to the
issue, and giving it legal significance. It
must be contemporaneous with or must
accompany the equivocal act in order to
be admissible.

Requisites:
i. The fact or occurrence characterized
must be equivocal;
ii. The verbal acts must characterize or
explain the equivocal act;
iii. The equivocal act must be relevant
to the issue; and
iv. The verbal acts must be
contemporaneous with the equivocal
act.

2. Spontaneous Statements - Statements or
exclamations made immediately after
some exciting occasion by a participant or
spectator and asserting the circumstances
of that occasion as it is observed by him.
The res gestae is the startling occurrence.
It may be prior to or simultaneously with,
or subsequent with the startling
occurrence.

Requisites:
i. There must be a startling occurrence;
ii. The statement must relate to the
circumstances of the startling
occurrence;
iii. The statement must be spontaneous.

Q: Anthony raped Melissa. After raping Melissa,
Anthony fled. Melissa then rushed to the police
station and told Police Officer Gilbert what had
happened. Anhthony was charged with rape.
During the trial, Melissa can no longer be located.
If the prosecution presents Gilbert to testify on
what Melissa had told him, would such testimony
of Gilbert be hearsay? Explain.

A: No. It is part of res gestae. It is also an
independently relevant statement. Buloy testified
based on his personal knowledge; that is, he was
testifying to the fact that Reyna told him that she
was raped by am and noL Lo Lhe LruLh of eyna's
statement (People v. Gaddi, G.R. No. 74065, Feb.
27, 1989). (2005 Bar Question)

(7) ENTRIES IN THE ORDINARY COURSE OF
BUSINESS/SHOP-BOOK RULE (SEC. 43)

Q: What are the requisites for the admissibility of
entries in the course of business?

A:
1. The person who made the entry must be
dead or unable to testify;
2. The entries were made at or near the
time of the transactions to which they
refer;
3. The entrant was in a position to know the
facts stated in the entries;
4. The entries were made in his professional
capacity or in the performance of a duty,
whether legal, contractual, moral or
religious; and
EVIDENCE


353
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
5. The entries were made in the ordinary or
regular course of business or duty.
(Regalado, Vol. II, pp. 791-792, 2008 ed.)

Q: How is regularity of the entries proved?

A: It may be proved by the form in which they
appear as entries in the books/ledgers. There is no
need to present for testimony the clerk who
manually made the entries. The person who
supervised such clerk is competent to testify that:
1. The account was prepared under his
supervision; and
2. That the entries were regularly entered in
the ordinary course of business
(Regalado, Vol. II, p. 792, 2008 ed.).

Q: Is there an instance where business entries may
be admitted in evidence even when the declarant
is alive?

A: The entries will not be admitted as an exception
to the hearsay rule, but they may nevertheless be
availed of by said entrant as a memorandum to
refresh his memory while testifying on the
transactions reflected therein. (Ibid.)

(8) ENTRIES IN OFFICIAL RECORDS (SEC. 44)

Q: What is an official record?

A: It may be a:
1. Register;
2. Cash book; or
3. An official return or certificate (Regalado,
Vol. II, p. 793, 2008 ed.)

Q: What are the requisites for the admissibility of
entries in official records?

A:
1. Entries were made by a public officer in
the performance of his duties or by a
person in the performance of a duty
especially enjoined by law;
2. 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; and
3. Such entries were duly entered in a
regular manner in the official records.
(Ibid.)

Q: What is the probative value of these entries?

A: It is only prima facie evidence of the fact stated
therein.
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, Apr. 30, 2003)
Q: Distinguish entries in the course of business
from entries in official record.

A:
ENTRIES IN THE COURSE
OF BUSINESS
ENTRIES IN OFFICIAL
RECORD
It is sufficient that the
entrant made the entries
pursuant to a duty be it
legal, contractual, moral
or religious.
The entrant, if a private
individual, must have
acted pursuant to a
specific legal duty
specially enjoined by law.
Entrant must be dead or
unable to testify.
No such requirement

(9) COMMERCIAL LIST AND THE LIKE (SEC. 45)

Q: What are the requisites for the admissibility of
commercial list and the like?

A:
1. Statements of matters of interest to
persons engaged in an 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 that occupation; and
4. Such is generally relied upon by them.

Q: What are the examples of commercial lists and
the like?

A:
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, p. 339,
1992 ed.)

(10) LEARNED TREATIES (SEC. 46)

Q: When are learned treatises admissible?

A:
1. When the court can take judicial notice of
them; or
UST GOLDEN NOTES 2011



354
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

2. When an expert witness testifies that the
author of such is recognized as expert in
that profession. (Sec. 46)

Q: What are the examples of learned treatises?

A:
1. Historical works;
2. Scientific treatises; or
3. Law (Francisco, pp. 340-341, 1992 ed.)

(11) TESTIMONY OR DEPOSITION AT A FORMER
PROCEEDING (SEC. 47)

Q: What are the requisites for the admissibility of
testimony or deposition at a former proceeding?
A:
1. Witness whose testimony is offered in
evidence is dead or unable to testify;
2. The 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. Former case involved the same subject as
that in the present case, although on
different causes of action;
4. Issue testified to by the witness in the
former trial is the same issue involved in
the present case; and
5. Adverse party had an opportunity to
cross-examine the witness in the former
case.

Q: What are the grounds, aside from death, which
make a witness unable to testify in a subsequent
case?

A:
1. Insanity or mental incapacity or the
former wlLness' loss of memory Lhrough
old age or disease;
2. Physical disability by reason of sickness or
advanced age;
3. The fact that the witness has been kept
away by contrivance of the opposite
party; or
4. The fact that after diligent search the
former witness cannot be found.
(Francisco, p. 342, 1992 ed.)

7. OPINION RULE

a. OPINION OF EXPERT WITNESS

Q: Who is an expert witness?

A: 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, Vol. II, p. 802,
2008 ed.)

Q: Is there a definite standard of determining the
degree of skill or knowledge that a witness must
possess in order to testify as an expert?

A: None. It is sufficient that the following factors
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, Oct. 17, 2001)

Q: What is expert evidence?

A: It is the testimony of a person (expert witness)
possessing knowledge not usually acquired by other
persons in a particular subject matter.
Note: It is admissible when the matter to be
established requires expertise and the witness have
been qualified as an expert.

Q: What is the test in determining whether there
is need to resort to expert evidence?

A: The test is whether the opinion called for will aid
the court in resolving an issue.

b. OPINION OF ORDINARY WITNESS

Q: What is an opinion?

A: It is an inference or conclusion based or drawn
from the facts established.

Q: Is the opinion of a witness admissible in
evidence?

A:
GR: The opinion of a witness is not admissible.
The witness must testify to facts within their
knowledge and may not state their opinion
even on their examination.

XPN:
1. Opinion of an expert witness (Sec.
49);
2. Opinion of an ordinary witness as to:
a. The identity of a person about
whom he has adequate
knowledge;
b. A handwriting with which he
has sufficient familiarity;
EVIDENCE


355
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
c. The mental sanity of a person
with whom he is sufficiently
acquainted; and
d. 1he wlLness' lmpresslons of Lhe
emotion, behavior, condition or
appearance of a person (Sec.
50).

8. CHARACTER EVIDENCE
a. CRIMINAL CASES
b. CIVIL CASES

Q: When may character evidence be admitted in
evidence?

A:
GR: Character evidence is not admissible in
evidence.

XPN:
1. Criminal cases:
a. The accused may prove his good
moral character which is pertinent to
the moral trait involved in the
offense charged;
b. The prosecution may not prove the
bad moral character of the accused
which is pertinent to the moral trait
involved in the offense charged,
unless in rebuttal when the latter
opens the issue by introducing
evidence of his good moral
character; or
c. As to the offended party, his good or
bad moral character may be proved
as long as it tends to establish in any
reasonable degree the probability or
improbability of the offense charged.

XPN to the XPN:
i. In rebuttal, proof of the bad
character of the victim is not
admissible if the crime was
committed through treachery and
premeditation; and
ii. In rape cases, the evidence of
complalnanL's pasL 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 (Rape shield, Sec. 6, R.A.
8505).

2. Civil cases The moral character of either
party thereto cannot be proved unless it
is pertinent to the issue of character
involved in the case (Sec. 51).

Note: As to witnesses to both criminal and civil actions,
the bad moral character of a witness may always be
proved by either party but not evidence of his good
moral character, unless such character has been
impeached (Sec. 14, Rule 132).

Q: What are the requirements provided by the
rules with respect to the nature or substance of
the character evidence which may be admissible?

A:
1. With respect to the accused, such
characLer evldence musL be perLlnenL Lo
the moral trait involved in the offense
charged."
2. With respect to the offended person, it is
sufficient that such character evidence
may esLabllsh ln any reasonable degree
the probability or improbability of the
offense charged."
3. With respect to the witness, such
character evidence must refer to his
general repuLaLlon for truth, honesty or
lnLegrlLy," LhaL ls affecLlng hls credlblllLy.
(Regalado, Vol. II, p. 814, 2008 ed.)

9. RULE ON EXAMINATION OF A CHILD WITNESS

a. APPLICABILITY OF THE RULE

Q: In what cases is the Rule on Examination of a
Child Witness applicable?

A: It shall apply in all criminal and non-criminal
proceedings involving child witnesses. This Rule
shall govern the examination of child witnesses who
are victims of crime, accused of a crime, and
witnesses of a crime (Sec. 1).

Q: When are the provisions of the Rules of Court
applicable in the examination of a child witness?

A: The provisions of the Rules of Court on
deposition, conditional examination of witnesses,
and evidence shall be applied in a suppletory
character (Sec. 32).

b. MLANING CI "CnILD WI1NL"

Q: Who is a child witness?

A: A child witness is any person who at the time of
giving testimony is below the age of 18 years. In
child abuse cases, a child includes one over 18 years
but is found by the court as unable to fully take care
of himself or protect himself from abuse, neglect,
UST GOLDEN NOTES 2011



356
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

cruelty, exploitation, or discrimination because of a
physical or mental disability or condition [Sec. 4(a)].

Q: What is the difference between a child witness
and an ordinary witness?
A:
CHILD WITNESS ORDINARY WITNESS
Only the judge is allowed
to ask questions to a
child
witness during
preliminary examination
Opposing counsels are
allowed to ask questions
during preliminary
examination
Testimony in a narrative
form is allowed
Testimony in a narrative
form is not allowed
Leading questions are
allowed
Leading questions are
generally not allowed
The child witness is
assisted by a support
person
An ordinary witness is not
assisted by a support
person

Q: Who is a facilitator?

A: He is a person appointed by the court to pose
questions to a child. [Sec. 4(c)] The facilitator may
be a child psychologist, psychiatrist, social worker,
guidance counselor, teacher, religious leader,
parent or relative.

Q: Who is a support person?

A: He is a person chosen by the child to accompany
him to testify at or attend a judicial proceeding or
deposition to provide emotional support for him.
[Sec. 4(f)]

Q: What is an in-depth investigative interview or
disclosure interview?

A: It is an inquiry or proceeding conducted by duly
trained members of a multidisciplinary team or
representatives of law enforcement or child
protective services for the purpose of determining
whether child abuse has been committed. [Sec. 4(i)]

Q: When may the court appoint a guardian ad
litem for a child?

A: The court may appoint a guardian ad litem for a
child who is a victim of, accused of, or a witness to a
crime to promote the best interests of the child. In
making the appointment, the court shall consider
the background of the guardian ad litem and his
familiarity with the judicial process, social service
programs, and child development, giving
preference to the parents of the child, if qualified
[Sec. 5(a)].

Q: What determines the best interests of the
child?
A: It is determined by the totality of the
circumstances and conditions as are most congenial
to the survival, protection and feelings of security
of the child and most encouraging to his physical,
psychological and emotional development. It also
means the least detrimental available alternative
for safeguarding the growth and development of
the child [Sec. 4(g)].

c. COMPETENCY OF A CHILD WITNESS

Q: What is the rule on the competency of a child
witness?

A: Every child is presumed qualified to be a witness.
However, the court shall conduct a competency
examination of a child, motu proprio or on motion
of a party, when it finds that substantial doubt
exists regarding the ability of the child to perceive,
remember, communicate, distinguish truth from
falsehood, or appreciate the duty to tell the truth in
court.

Q: What must a party seeking competency
examination present?

A: He must present proof of necessity of
competency examination. The age of the child by
itself is not a sufficient basis for a competency
examination. [Sec. 6(a)]

Q: Where does the burden of proof lie?

A: It lies on the party challenging the competency
of the child [Sec. 6(b)].

Q: Who are the persons allowed at a competency
examination?

A: Only the following are allowed at a competency
examination:
1. The judge and necessary court personnel;
2. The counsel for the parties;
3. The guardian ad litem, if any;
4. One or more support persons for the
child; and
5. The defendant, unless the court
determines that competence can be fully
evaluated in his absence. [Sec. 6(c)]

Q: Who shall conduct the competency
examination?

A: It shall be conducted only by the judge but the
counsel for the parties can submit questions to the
judge that he may, in his discretion, ask the child.
[Sec. 6(d)]

EVIDENCE


357
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
Q: What are the appropriate questions to be asked
to the child during competency examination?

A: The questions to be asked are:
1. Appropriate to the age and
developmental level of the child;
2. Not related to the issues at trial; and
3. Shall focus on the ability of the child to
remember, communicate, distinguish
between truth and falsehood, and
appreciate the duty to testify truthfully.
[Sec. 6(e)]

Q: What is meant by developmental level?

A: It refers to the specific growth phase in which
most individuals are expected to behave and
function in relation to the advancement of their
physical, socio-emotional, cognitive, and moral
abilities. [Sec. 4(h)]

Q: What is the duty of the court regarding the
competency of the child?

A: It has the duty of continuously assessing the
competence of the child throughout his testimony.
[Sec. 6(f)]

Q: In case of a child witness, what should the court
consider in determining his competency?

A: The court must consider his capacity:
1. At the time the fact to be testified to
occurred such that he could receive
correct impressions thereof;
2. To comprehend the obligation of an oath;
and
3. To relate those facts truly at the time he
is offered as a witness. The court should
take into account his capacity for
observation, recollection and
communication. (Regalado, Vol. II, pp.
739-740, 2008 ed.)

d. EXAMINATION OF A CHILD WITNESS

Q: Does the testimony of child witness need
corroboration?

A: Corroboration shall not be required of a
testimony of a child. His testimony, if credible by
itself, shall be sufficient to support a finding of fact,
conclusion, or judgment subject to the standard of
proof required in criminal and non-criminal cases
(Sec. 22).

Note: The straightforward testimony of a child witness
can be given full weight and credit. When a child says
that she has been raped, she says in effect all that is
necessary to show that rape has indeed been
committed. The silence of a rape victim or failure to
immediately disclose her plight to the authorities is no
proof at all that the charges are baseless or fabricated.
More often than not, a victim would bear the ignominy
and pain in private rather than reveal her shame to the
whole world or risk the danger of physical harm by the
rapist (People v. Pioquinto, G.R. No. 168326, Apr. 11,
2007).

Q: Boy was charged with rape of his 10 year old
stepdaughter, Angie, to which he pleaded not
guilty. For the prosecution, it presented as
witnesses the victim and a Medico Legal
Certificate issued by Dr. Luna, the results of which
showed that the victim suffered hymenal
laceration. For the defense, he vehemently denied
the charges and presented an alibi. RTC, affirmed
with modification by the CA convicted the
accused. Should the testimony of the child be
given full weight and credit?

A: Testimonies of child victims are given full weight
and credit, for when a woman or a girl-child says
that she has been raped; she says in effect all that is
necessary to show that rape was indeed
committed. Youth and immaturity are generally
badges of truth and sincerity.

Angle's LesLlmony LhaL she was raped by Lhe
accused is highly trustworthy not only because of
the fact that she was merely a young lass below
twelve years of age at the time she testified before
the trial court who would not concoct a sordid tale
against his stepfather whom she endearingly calls
papa" buL more so because of her candid, positive,
direct, and consistent narration of how her
stepfather sexually abused her.

She vividly recounted that she was awakened one
night when she felt someone touching her body.
Angie identified the aggressor as the accused who
immediately covered her mouth with his hand
(People v. Sobusa, G.R. No. 181083, Jan. 21, 2010).

Q: When may the public be excluded from the
courtroom in which a child testifies?

A: When a child testifies, the court may order the
exclusion from the courtroom of all persons,
including members of the press, who do not have a
direct interest in the case. Such an order may be
made to protect the right to privacy of the child or
if the court determines on the record that requiring
the child to testify in open court would cause
psychological harm to him, hinder the
ascertainment of truth, or result in his inability to
effectively communicate due to embarrassment,
fear, or timidity.
UST GOLDEN NOTES 2011



358
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

The court may, motu proprio, exclude the public
from the courtroom if the evidence to be produced
during trial is of such character as to be offensive to
decency or public morals. The court may also, on
motion of the accused, exclude the public from
trial, except court personnel and the counsel of the
parties (Sec. 23).

e. LIVE-LINK TV TESTIMONY OF A CHILD WITNESS

Q: When may the court order that the testimony
of the child be taken by live-link television?
Explain.

A: The court may order that the testimony of the
child be taken by live-link television if there is a
substantial 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. The trauma must be of a kind which would
impair the completeness or truthfulness of the
testimony of the child (Sec. 25). (2005 Bar
Question)

f. VIDEOTAPED DEPOSITION OF A CHILD WITNESS

Q: When may the court order that the testimony
of the child be taken by videotaped deposition?
Explain.

A: 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[b])

If the order of the court is based on evidence that
the child is unable to testify in the physical
presence of the accused, the court may direct the
latter to be excluded from the room in which the
deposition is conducted. If the accused is excluded
from the deposition, it is not necessary that the
child be able to view an image of the accused.
(Sec.27[e])

Note: The rights of the accused during trial, especially
the right to counsel and to confront and cross-examine
the child, shall not be violated during the deposition.
(Sec.27[d])

Note: After the original videotaping but before or
during trial, any party may file any motion for
additional videotaping on the ground of newly
discovered evidence. The court may order an
additional videotaped deposition to receive the newly
discovered evidence. (Sec.27[j])




Q: Who are the persons allowed to preside and be
present in the videotaped deposition?

A: The judge shall preside at the videotaped
deposition of a child. Objections to deposition
testimony or evidence, or parts thereof, and the
grounds for the objection shall be stated and shall
be ruled upon at the time of the taking of the
deposition. The other persons who may be
permitted to be present at the proceeding are:
(1) The prosecutor;
(2) The defense counsel;
(3) The guardian ad litem;
(4) The accused, subject to sub-section (e);
(5) Other persons whose presence is
determined by the court to be necessary to the
welfare and well-being of the child;
(6) One or both of his support persons, the
facilitator and interpreter, if any;
(7) The court stenographer; and
(8) Persons necessary to operate the videotape
equipment.

g. HEARSAY EXCEPTION IN CHILD ABUSE CASES

Q: Does the hearsay rule apply in child abuse
cases?

A: 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 subject to the following rules:

1. Before such hearsay statement maybe
admitted, its proponent shall make
known to the adverse party the intention
to offer such statement and its particulars
to provide him a fair opportunity to
object.

a. If the child is available, the court
shall, upon motion of the adverse
party, require the child to be present
at the presentation of the hearsay
statement for cross-examination by
the adverse party.
b. When the child is unavailable, the
fact of such circumstance must be
proved by the proponent.

2. In ruling on the admissibility of such
hearsay statement, the court shall
consider the time, content and
circumstances thereof, based on various
factors provided by the law, which
provide sufficient indicia of reliability (Sec.
28).
EVIDENCE


359
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
h. SEXUAL ABUSE SHIELD RULE

Q: What is sexual abuse shield rule?

A:
GR: It states that the following evidence is not
admissible in any criminal proceeding involving
alleged child sexual abuse:
1. Evidence offered to prove that the alleged
victim engaged in other sexual behavior;
and
2. Evidence offered to prove the sexual
predisposition of the alleged victim [Sec.
30(a)].

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(b)].

i. PROTECTIVE ORDERS

Q: What are the other measures provided under
the rule for the protection of the privacy and
safety of a child witness?

A:
1. Confidentiality of records

GR: The records may be released only to
the ff:
a. Members of the court staff for
administrative use;
b. The prosecuting attorney;
c. Defense counsel;
d. The guardian ad litem;
e. Agents of investigating law
enforcement agencies; and
f. Other persons as determined by the
court
XPN: Upon written request and order of
the court [Sec. 31(a)].

2. 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:
a. Tapes may be viewed only by parties,
their counsel, their expert witness,
and the guardian ad litem;
b. No tape, or any portion thereof, shall
be divulged by any person
mentioned in sub-section (a) to any
other person, except as necessary for
the trial;
c. 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;
d. 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, 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."

e. No tape shall be given, loaned, sold,
or shown to any person except as
ordered by the court.
f. 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.
g. This protective order shall remain in
full force and effect until further
order of the court. [Sec. 31(b)].

3. Additional protective orders The court
may, motu proprio or on motion of any
party, the child, his parents, legal
guardian, or the guardian ad litem, issue
additional orders to protect the privacy of
the child [Sec. 31(c)].

4. Publication of identity contemptuous:
Whoever publishes or causes to be
published in any format the name,
address, telephone number, school, or
other identifying information of a child
who is or is alleged to be a victim or
accused of a crime or a witness thereof,
or an immediate family of the child shall
UST GOLDEN NOTES 2011



360
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

be liable to the contempt power of the
court. (Sec. 31[d])

5. Physical safety of child; exclusion of
evidence
GR: A child has a right at any court
proceeding not to testify regarding
personal identifying information,
including his name, address, telephone
number, school, and other information
that could endanger his physical safety or
his family.
XPN: The court may, however, require the
child to testify regarding personal
identifying information in the interest of
justice [Sec. 31(e)].

6. Destruction of videotapes and audiotapes
Videotapes and audiotapes produced
under the provisions of this Rule or
otherwise made part of the court record
shall be destroyed after 5 years have
elapsed from the date of entry of
judgment [Sec. 31(f)].

7. Records of youthful offender: confidential
a. Where he has been charged before
any prosecutor or before any
municipal judge and the charges
have been ordered dropped, all the
records of the case shall be
considered as privileged and may not
be disclosed directly or indirectly to
anyone for any purpose whatsoever.
b. Where he has been charged and the
court acquits him, or dismisses the
case or commits him to an institution
and subsequently releases him, all
the records of his case shall also be
considered as privileged and may not
be disclosed except:
i. To determine if a defendant
may have his sentence
suspended under Art. 192 of
P.D. 603 or if he may be granted
probation under the provisions
of P.D. 968; or
ii. To enforce his civil liability, if
said liability has been imposed
in the criminal action [Sec.
31(g)].

Q: Maximo Gwapito, a 25-year old jeepney driver,
and his 7-year old son, Maximo Gwapito, Jr.,
stepped out of their house in order to buy food.
Upon reaching the street, father and son
encountered Richard Sputnik, Ron Sputnik, Jeric
Angas and Mark Bayawak. The four were
apparently waiting for Maximo Gwapito. They
dragged him to a nearby warehouse. Thereafter, a
gunshot was heard from the warehouse. Maximo
Gwapito was seen running out of the warehouse
followed by the four malefactors.

He fell on the ground near the street corner, Angas
shot him four or five times. The tragic occurence
was witnessed by the victim's son and wife. It was
only after 8 years when two of the four culprits
were convicted by the trial court. On appeal, they
impugned the testimony of the child that he was
only 7 years old when he witnessed the shooting,
and that he testified eight years later or long after
that extraordinary event. Is the contention
tenable?

A: No. The court in several cases had given
credence to the testimony of children who had
witnessed the death of their parents. In the case of
Maximo, Jr., the horrible manner in which his father
was killed must have been indelibly engraved in his
uncluttered memory so much so that the passage
of time could not efface it. When he testified, he
was already fifteen years old and a third year high
school student. He was certainly a competent
witness. (People v. Sabater, G.R. No. L-38169, Feb.
23, 1978)

F. OFFER AND OBJECTION

Q: What evidence shall be considered by the
court?

A:
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).

XPN:
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, Aug. 6, 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;
EVIDENCE


361
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
4. Documents whose contents are taken
judicial notice of by the court;
5. Documents whose contents are judicially
admitted; or
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.

1. OFFER OF EVIDENCE

Q: What are the rationales in stating the purpose
for which the evidence is being offered?
A:
1. For the court to determine whether that
piece of evidence should be admitted or
not;
2. Evidence submitted for one purpose may
not be considered for any other purpose;
and
3. For the adverse party to interpose the
proper objection.

Q: Noelle filed a complaint for recovery of
possession and damages against Kristina. In the
course of the trial, Noelle marked his evidence but
his counsel failed to file a formal offer of evidence.
Kristina 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 Kristina, saying that Noelle
failed to prove sole ownership of the property in
the face of kr|st|nas ev|dence. Was the court
correct? Explain briefly.

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 Kristina. 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, Nov. 24, 1986). (2007
Bar Question)

Q: What are the stages in the presentation of
documentary evidence?







A:


2. WHEN TO MAKE AN OFFER

Q: How and when should a party make the offer of
evidence?

A:
Testimonial Evidence
Documentary and
Object Evidence
Offer must be made at the
time the witness is called
to testify.
Must be made after the
presenLaLlon of parLy's
testimonial evidence,
and before resting his
case.
Every time a question is
propounded to a witness,
there is an implied offer of
the evidence sought to be
elicited by the question.
The evidence is only
offered once, after all
the testimonial evidence
and prior to the resting
of the case for a party.

Note: The offer shall be done orally unless allowed by
the court to be in writing.
UST GOLDEN NOTES 2011



362
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

3. OBJECTION

Q: What are the purposes of objections?

A:
1. To keep out inadmissible evidence that
would cause harm to a cllenL's cause,
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 by the adverse counsel;
4. 1o expose Lhe adversary's unfalr LacLlcs
like his consistently asking obviously
leading questions; and
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
lnvoke a hlgher courL's appellaLe
jurisdiction. (Riano, Evidence: A
Restatement for the Bar, p. 462, 2009 ed.)

Q: When should an objection be made?

A: Objection to evidence offered orally must be
made immediately after the offer is made.
Objection to a question propounded in the course
of the oral examination of a witness shall be made
as soon as the grounds therefore shall become
reasonably apparent. An offer of evidence in
writing shall be objected to within 3 days after
notice of the offer unless a different period is
allowed by the court. In any case, the grounds for
objection must be specified (Sec. 36).

Q: What is the difference between a "broadside"
objection and a specific objection to the admission
of documentary evidence?

A: A broadside objection is a general objection such
as incompetent, irrelevant and immaterial and does
not specify any ground; while a specific objection is
limited to a particular ground. (1994 Bar Question)

Q: What are the two kinds of objections? Give an
example of each.

A:
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); and
2. Incompetent The evidence is excluded
by law or rules (Sec. 3, Rule 138) (e.g.
evidence obtained in violation of the
Constitutional prohibition against
unreasonable searches and seizures).

Alternative Answers:
1. Specific objections e.g. parole evidence
and best evidence rule
General objections e.g. continuing
objections (Sec. 37).
2. 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. (1997 Bar Question)

4. REPETITION OF AN OBJECTION

Q: What is the rule on continuing objections?

A:
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).

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 relevance 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.




EVIDENCE


363
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
5. RULING

Q: When should the court make its ruling on the
objection?

A: It 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).

6. STRIKING OUT OF AN ANSWER

Q: What are the modes of excluding inadmissible
evidence?

A:
1. Objection when the evidence is offered.
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 the answers are incompetent,
irrelevant, or improper (Sec. 39);
c. When the witness becomes unavailable
for cross-examination through no fault
of the cross-examining party;
d. When the answer is unresponsive;
e. When the testimony was allowed
conditionally and the condition for its
admissibility was not fulfilled (Riano,
Evidence: A Restatement for the Bar, p.
467, 2009 ed.);
f. When a witness has volunteered
statements in such a way that the party
has not been able to object thereto;
g. When a witness testifies without a
question being addressed to him; or
h. When a witness testifies beyond the
ruling of the court prescribing the limits
within which he may answer.

Q: May objections be waived?

A: Yes, because the right to object is merely a
privilege which the party may waive. (People v.
Martin, G.R. No. 172069, Jan. 30, 2008)

Q: What is the extent of the waiver for failure to
object?

A: It 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, Evidence: A Restatement
for the Bar, p. 471, 2009 ed.)

Q: May a direct testimony given and allowed
without a prior formal offer be expunged from the
record?

A: No. When such testimony is allowed without any
objection from the adverse party, the latter is
estopped from questioning the non-compliance
with the requirement.

Q: What is the remedy if a court improperly
excludes an otherwise admissible evidence?

A: 1he parLy's remedy ls Lo Lender Lhe excluded
evidence by:
1. Testimonial evidence State for the
record the name and other personal
circumstances of the witness and the
nature and substance of the proposed
testimony.
2. Object/documentary evidence Attach to
or make it a part of the record (Sec. 40).

7. TENDER OF EXCLUDED EVIDENCE

Q: What is tender of excluded evidence or offer of
proof?

A: 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. (Caraig,
Revised Rules of Evidence 2004 ed., p. 337)

Q: How is tender of excluded evidence made?

A:
1. As to documentary or object evidence: It
may have the same attached to or made
part of the record.
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.

Q: What are the purposes of tender of excluded
evidence?

A:
1. 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
UST GOLDEN NOTES 2011



364
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

2. To create and preserve a record for
appeal. (Riano, Evidence: A Restatement
for the Bar, p. 477, 2009 ed.)

Q: Distinguish offer of proof from offer of
evidence.

A:
OFFER OF
PROOF/TENDER OF
EXCLUDED EVIDENCE
OFFER OF EVIDENCE
Only resorted to if
admission is refused by
the court for purposes
of
review on appeal
Refers to testimonial,
documentary or object
evidence that are presented
or offered in court by a
party so that the court can
consider his evidence when
it comes to the preparation
of the decision

Q: How is an offer of evidence made?

A:
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;
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, Vol.
VI, p. 344)

Q: When is offer or proof not required?

A:
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 appears
on record;
3. Where evidence is inadmissible when
offered and excluded, but thereafter
becomes, it must, be re-offered, unless
the court indicates that a second offer
would be useless. (Herrera, Vol. VI, p.
344-345)


Q: Distinguish English Exchequer rule from
harmless error rule.

A:
ENGLISH EXCHEQUER
RULE
HARMLESS ERROR RULE
It provides that a trial
court's error as to the
admission of evidence
was presumed to have
caused prejudice and
therefore, almost
automatically required
new trial.
The appellate court will
disregard an error in the
admission of evidence
unless in its opinion, some
substantial wrong or
miscarriage of justice has
been occasioned.

Note: 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. Garcia, G.R. No. 105805, Aug. 16, 1994).

G. SUPREME COURT RULINGS AS OF DECEMBER
2010

EMMA K. LEE v. COURT OF APPEALS and RITA K. LEE, et
al. G.R. No. 177861, July 13, 2010 (ABAD, J.)

Spouses Lee Tek Sheng (Lee) and Keh Shiok Cheng (Keh)
entered the Philippines as immigrants and they had
11children (respondents herein). Subsequently, a woman
named Tiu Chuan (Tiu) served as the housemaid and upon
keh's deaLh, Lhe respondenL chlldren found ouL LhaL Lhe
1lu chlldren clalms LhaL Lhey are also Lee and keh's
children. Respondent children then filed before the RTC a
special proceeding for the deletion from the certificate of
llve blrLh of Lmma Lee, one of Lee's oLher chlldren, Lhe
name Keh and replace the same with the name Tiu to
lndlcaLe her Lrue moLher's name. Respondent children
then filed an ex parte request for the issuance of a
subpoena ad testificandum Lo compel 1lu, Lmma Lee's
presumed mother, to testify in the case. The RTC granted
the motion but Tiu moved to quash the subpoena,
claiming that it was oppressive and violated Section 25,
Rule 130 of the Rules of Court, the rule on parental
privilege, she belng Lmma Lee's sLepmoLher. 1he 1C
quashed the subpoena it issued for being unreasonable
and oppressive considering that Tiu was already very old
and that the obvious object of the subpoena was to
badger her lnLo admlLLlng LhaL she was Lmma Lee's
mother.

ISSUE: Can Tiu, as the stepmother, be compelled to testify
in said proceeding? (Yes)

HELD: As the CA correctly ruled, the grounds cited
unreasonable and oppressiveare proper for subpoena
ad duces tecum or for the production of documents and
things in the possession of the witness, a command that
has a tendency to infringe on the right against invasion of
EVIDENCE


365
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
privacy. Section 4, Rule 21 of the Rules of Civil Procedure,
thus provides:
SECTION 4. Quashing a subpoena. The court may
quash a subpoena duces tecum upon motion promptly
made and, in any event, at or before the time specified
therein if it is unreasonable and oppressive, or the
relevancy of the books, documents or things does not
appear, or if the person in whose behalf the subpoena
is issued fails to advance the reasonable cost of the
production thereof.

Taking in mind the ultimate purpose of respondent
chlldren's acLlon, obvlously, Lhey would wanL 1lu Lo LesLlfy
or admlL LhaL she ls Lhe moLher of Lee's oLher chlldren,
including petitioner Emma Lee. Keh had died and so could
noL glve LesLlmony LhaL Lee's oLher chlldren were noL
hers. The respondent children have, therefore, a
leglLlmaLe reason for seeklng 1lu's LesLlmony and,
normally, the RTC cannot deprive them of their right to
compel the attendance of such a material witness.
SECTION 25. Parental and filial privilege.- No person
may be compelled to testify against his parents, other
direct ascendants, children or other direct descendants.

The above is an adaptation from a similar provision in
Article 315 of the Civil Code that applies only in criminal
cases. But those who revised the Rules of Civil Procedure
chose to extend the prohibition to all kinds of actions,
whether civil, criminal, or administrative, filed against
parents and other direct ascendants or descendants. But
here Tiu, who invokes the filial privilege, claims that she is
the stepmother of petitioner Emma Lee. The privilege
cannot apply to them because the 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. Article 965 thus
provides:
Art. 965. The direct line is either descending or
ascending. The former unites the head of the family
with those who descend from him. The latter binds a
person with those from whom he descends.

Consequently, Tiu can be compelled to testify against
petitioner Emma Lee.

LEIGHTON CONTRACTORS PHILIPPINES, INC. v. CNP
INDUSTRIES INC. G.R. No. 160972, March 9, 2010
(CORONA, J.)

Respondent CNP Industries, Inc. is the subcontractor of
petitioner Leighton Contractors Philippines, Inc. in a
construction project. The subcontract was based on a
Fixed Lump Sum of P44,223,909. However, due to some
revisions made by CNP in its designs, it incurred an
additional amount of P13,442,882 which was not re-
negotiated with Leighton. CNP now claims for the
payment of the additional expenses, contending that it
was not part of the sub-contract price. Leighton however
refused the same, reiterating that the sub-contract is for a
fixed lump sum price. The Construction Industry
Arbitration Commission (CIAC) ruled in favor of CNP. This
decision was affirmed by the CA. Hence this petition.

ISSUE: Is Leighton liable to pay the additional cost based
on the parol evidence presented by CNP? (NO)

HELD:
The parol evidence rule, embodied in Section 9, Rule 130
of the Rules of Court holds that 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, between the parties and their successors in
interest, no evidence of such terms other than the
contents of the written agreement. It, however, admits of
exceptions such as when the parties subsequently modify
the terms of their original agreement Nevertheless,
respondent contends that when Bennett signed the
August 12, 1997 progress report, petitioner approved the
additional cost estimates, in effect modifying the original
agreement in the subcontract. Respondent therefore
claims an exception to the parole evidence rule. In
contracts for a stipulated price like fixed lump-sum
contracts, the recovery of additional costs is governed by
Article 1724 of the Civil Code. Settled is the rule that a
claim for the cost of additional work arising from changes
in the scope of work can only be allowed upon the:
(1) Written authority from the developer or project
owner ordering or allowing the written changes in work
and
(2) Written agreement of parties with regard to the
increase in price or cost due to the change in work or
design modification.

Furthermore, compliance with the two requisites of
Article 1724, a specific provision governing additional
works, is a condition precedent for the recovery. The
absence of one or the other condition bars the recovery of
additional costs. Neither the authority for the changes
made nor the additional price to be paid therefor may be
proved by any other evidence.

OFFICE OF THE OMBUDSMAN (VISAYAS) v. RODOLFO
ZALDARRIAGA G.R. No. 175349, June 22, 2010 (PERALTA,
J.)

Respondent Rodolfo Zaldarriaga was the Municipal
Treasurer of the Municipality of Lemery, Iloilo. Upon audit
of Zaldarrlaga's cash and accounLs, lL was dlscovered LhaL
he had a deficiency which he failed to restitute despite
notice. Instead, Zaldarriaga sent letters to State Auditor
Garachico requesting for a bill of particulars on his alleged
accountability. The COA, however, failed to clarify the
basis of the shortage and filed a complaint against him.
When the Office of the Provincial Treasurer conducted its
own investigation as to the shortage, it was found out that
there really is no shortage. The COA then conducted a
second audit and concluded that there is no shortage.
Zaldarriage then moved for the dismissal of the complaint
against him, however, the Office of the Ombudsman
rendered a decision dismissing him from service. Said
decision was reversed on appeal, hence, the present case.

HELD: Basic is the rule that, in administrative cases, the
quantum of evidence necessary to find an individual
administratively liable is substantial evidence. Section 5,
Rule 133 of the Rules of Court is explicit, to wit:
Sec. 5. Substantial evidence. In cases filed before
administrative or quasi-judicial bodies, a fact may be
deemed established if it is supported by substantial
evidence, or that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a
conclusion.
UST GOLDEN NOTES 2011



366
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES


Substantial evidence does not necessarily mean
preponderant proof as required in ordinary civil cases, but
such kind of relevant evidence as a reasonable mind might
accept as adequate to support a conclusion or evidence
commonly accepted by reasonably prudent men in the
conduct of their affairs. In the present case, the evidence
upon whlch respondenL's admlnlsLraLlve liability would be
anchored lacked that degree of certainty required in
administrative cases, because the entries found in the two
separate audit conducted by the COA yielded conflicting
results. Evidence of shortage is imperative in order for the
respondent to be held liable. In the case at bar, the
evidence could not be relied upon. The second audit
report necessarily puts into question the reliability of the
initial audit findings. Whether the zero balance as
appearing in the second audit report was correct or
inadvertently indicated, the credibility and accuracy of the
two audit reports were already tarnished.

FINANCIAL BUILDING CORPORATION v. RUDLIN
INTERNATIONAL CORPORATION G.R. No. 164186 &
164347, October 4, 2010 (VILLARAMA, JR., J.)

Rudlin International Corporation (Rudlin) invited
proposals from several contractors to undertake the
construction of a three-storey school building and
other appurtenances and the contract was eventually
awarded to Financial Building Corporation (FBC). The
project was completed, however, the balance of the
adjusted contract price was not paid. FBC instituted a
complaint against Rudlin and while the RTC dismissed
said complaint, the CA held that FBC did not
substantiate its claim against Rudlin.

ISSUE: Is evidence of a prior or contemporaneous
verbal agreement admissible to vary, contradict or
defeat the operation of a valid contract? (No)

HELD:On the issue of the correct total contract price,
we hold that Rudlin failed to substantiate its claim
that the contract price stated in the Construction
Agreement was not the true contract price because it
had an undersLandlng wlLh l8C's !alme 8. Lo LhaL Lhey
would decrease said amount to a mutually acceptable
amount. Rudlin argues that under Section 9, Rule 130,
a party may present evidence to modify, explain or
add to the terms of the written agreement if it is put
in issue in the pleading. Assuming as true udlln's
claim that the contract failed to accurately reflect an
intent of the parties to fix the total contract price,
Rudlin failed to avail of its right to seek the
reformation of the instrument to the end that such
true intention may be expressed. Evidence of a prior
or contemporaneous verbal agreement is generally
not admissible to vary, contradict or defeat the
operation of a valid contract. Section 9 of Rule 130 of
the Rules of Court states:
SEC. 9. Evidence of written agreements.When the
terms of an agreement have been reduced to
writing, it is considered as containing all the terms
agreed upon and there can be, between the parties
and their successors-in-interest, no evidence of such
terms other than the contents of the written
agreement.
However, 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:
(a) An intrinsic ambiguity, mistake or
imperfection in the written agreement;
(b) The failure of the written agreement to
express the true intent and agreement of the parties
thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by
the parties or their successors-in-interest after the
execution of the written agreement.
The term agreemenL" lncludes wllls.

Rudlin cannot invoke the exception under (a) or (b) of the
above provlslon. uch excepLlon obLalns only where Lhe
written contract is so ambiguous or obscure in terms that
the contractual intention of the parties cannot be
understood from a mere reading of the instrument. Under
Lhe fourLh excepLlon, however, udlln's evldence ls
admissible to show the existence of such other terms
agreed to by the parties after the execution of the
contract. But apart from the Bar Chart and Cash Flow
Chart prepared by FBC, and the testimony of Rodolfo J.
Lagera, no competent evidence was adduced by Rudlin to
prove that the amount stated in the contract was the
actual decreased amount that FBC and Rudlin found
mutually acceptable. As to the affidavits executed by
Architect Quezon and his associate Roberto R. Antonio,
the same do not serve as competent proof of the
purported actual contract price as they did not testify
thereon. Likewise, there is nothing in the various letters
sent by Rudlin to FBC while construction was in progress
and even subsequent to the execution of the said Letter-
Agreement indicating that Rudlin corrected the contract
price which FBC had repeatedly mentioned in its letters
and documents.

THE HEIRS OF ROMANA SAVES, et al. v. HEIRS OF
ECOLASTICO SAVES, et al. G.R. No. 152866, October 6,
2010 (LEONARDO-DE CASTRO, J.)

Several persons filed their respective claims before the
Court of First for the titling of the respective lots they
occupy, among them were Escolastico Saves and Romana
Saves. A Decision was rendered by the court, adjudicating
several parcels of land to different claimants.
Subsequently, the heirs of Escolastico and Romana sold
said property to Gaudencia Valencia. A case for
Reconveyance, Partition, and Damages was filed before
the RTC on the ground that Valencia fraudulently acquired
the properties. RTC declared the sale null and void while
the CA reversed said decision.

ISSUE: Can the CA consider evidence not formally offered
before the trial court?

HELD:A formal offer is necessary because judges are
mandated to rest their findings of facts and their
judgment only and strictly upon the evidence offered by
the parties at the trial. Its function is to enable the trial
judge to know the purpose or purposes for which the
proponent is presenting the evidence. On the other hand,
this allows opposing parties to examine the evidence and
object to its admissibility. Moreover, it facilitates review
as the appellate court will not be required to review
EVIDENCE


367
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
documents not previously scrutinized by the trial court.
However, in People v. Napat-a, citing People v. Mate, we
relaxed the foregoing rule and allowed evidence not
formally offered to be admitted and considered by the
trial court provided the following requirements are
present, viz: first, the same must have been duly identified
by testimony duly recorded and, second, the same must
have been incorporated in the records of the case.With
regard Lo a documenL enLlLled Motion for the Issuance of
Transfer Certificate of Title" flled by valencla ln Lhe same
trial court that led to the issuance of his Title, the records
would show LhaL lL ls Lhe same documenL LhaL Lhe helrs'
witness Fruto Rosario identified in his testimony and
marked as Exhibit l". 1haL only Lhe helrs were able Lo
formally offer Lhe sald moLlon as LxhlblL l" mosL cerLalnly
does not mean that it can only be considered by the
courts for the evidentiary purpose. It is well within the
discretion of the courts to determine whether an exhibit
indeed serves the probative purpose for which it is
offered. It is likewise worth emphasizing that under the
Revised Rules on Evidence, an admission, verbal or
written, made by a party in the course of the proceedings
in the same case, does not require proof such admission
may be contradicted only by showing that it is made
through palpable mistake or that no such admission was
made.

SILKAIR (SINGAPORE) PTE., LTD. v. COMMISSIONER OF
INTERNAL REVENUE G.R. No. 184398, February 25, 2010
(LEONARDO-DE CASTRO, J.)

Silkair Singapore Pte., Ltd. (corporation) applied for a
refund of excise taxes erroneously paid by it on its
purchase of aviation jet fuel from Petron. Since no action
was taken by the CIR, the corporation filed a petition for
review before the CTA which held that its purchase is
exempt from excise tax. The CTA, however, held that the
corporation is not entitled to a refund for the
corporaLlon's fallure Lo presenL proof LhaL lL was
authorized to do business in the Philippines due to the
non-admission of some of its exhibits for being mere
photocopies of original documents.

ISSUE: Was Silkair able to prove its authority to do
business in the Philippines? (No)

HELD:eLlLloner's asserLlon LhaL Lhe C1A may Lake [udlclal
notice of its SEC Registration, previously offered and
admitted in evidence in similar cases before the CTA, is
untenable. Evidence already presented and admitted by
the court in a previous case cannot be adopted in a
separate case pending before the same court without the
same being offered and identified anew. A court is not
compelled to take judicial notice of pieces of evidence
offered and admitted in a previous case unless the same
are properly offered or have accordingly complied with
the requirements on the rules of evidence. It is an
elementary rule in law that documents shall not be
admissible in evidence unless and until the original copies
itself are offered or presented for verification in cases
where mere copies are offered, save for the exceptions
provided for by law. Silkair thus cannot hide behind the
veil of judicial notice so as to evade its responsibility of
properly complying with the rules of evidence. For its
failure to compare the subject documents with its
originals, the same may not be admitted. Evidently, said
documents cannot be admitted in evidence by the court
as the original copies were neither offered nor presented
for comparison and verification during the trial. Mere
identification of the documents and the markings thereof
as exhibits do not confer any evidentiary weight on them
as said documents have not been formally offered by
petitioner and have been denied admission in evidence by
the CTA. nelLher could lL be sald LhaL peLlLloner's LC
Registration and operating permits from the CAB are
documents which are of public knowledge, capable of
unquestionable demonstration, or ought to be known to
the judges because of their judicial functions, in order to
allow the CTA to take discretionary judicial notice of the
said documents.

HEIRS OF JOSE LIM v. JULIET VILLA LIM G.R. No. 172690,
March 3, 2010 (NACHURA, J.)

The heirs of the late Jose Lim filed a Complaint for
Partition, Accounting and Damages against Juliet Villa Lim
(Juliet), widow of the late Elfredo Lim (Elfredo), alleging
that their predecessor formed a partnership with his
friends Jimmy Yu (Jimmy) and Norberto Uy (Norberto) to
engage in a trucking business. That the partners
purchased a truck to be used in the hauling and
transporting of lumber and that Jose managed the
operations of this trucking business until his death. The
business was continued and the shares in the partnership
profits and income that formed part of the estate of Jose
were held in trust by one of the Elfredo, with the other
helrs' auLhorlLy for Llfledo Lo use, purchase or acquire
properties using said funds. The heirs contend that Elfredo
served as a driver in the business but was never an
investor or a partner of the business. When the
partnership ceased operations, nine trucks were
reglsLered under Llfredo's name. The heirs further claims
that it was through the profits derived from the
partnership that Elfredo was able to acquire real
properties and 5 motor vehicles. When Elfredo passed
away, the heirs claimed that they are co-owners of the
properties, hence, the present case. Juliet claims that
Llfredo was a parLner per LesLlmony of Cresencla (!ose's
wife), Elfredo contributed to the capital of the
partnership, hence, an informal partnership was formed.
That Other than the trucking business, Elfledo, together
with respondent, engaged in other business ventures.
Thus, they were able to buy real properties and to put up
their own car assembly and repair business. Juliet further
stated that when Jose died, he left no properties that
Elfredo could have held in trust. The heirs argue that
according to the testimony of Jimmy, the sole surviving
partner, Elfledo was not a partner; and that he and
Norberto entered into a partnership with Jose. Thus, the
CA erred in not giving that testimony greater weight than
that of Cresencia, who was merely the spouse of Jose and
not a party to the partnership.

ISSUE:Can the testimony of one of the heirs be given
greater weight than that by a former partner on the issue
of the identity of the other partners in the partnership?
(No)

HELD: Undoubtedly, the best evidence would have been
the contract of partnership or the articles of partnership.
Unfortunately, there is none in this case, because the
alleged partnership was never formally organized.
UST GOLDEN NOTES 2011



368
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

Nonetheless, we are asked to determine who between
!ose and Llfledo was Lhe parLner" ln Lhe Lrucklng
business. A careful review of the records persuades us to
affirm the CA decision. The evidence presented by the
heirs falls short of the quantum of proof required to
establish that: (1) Jose was the partner and not Elfledo;
and (2) all the properties acquired by Elfledo and
respondent form part of the estate of Jose, having been
derived from the alleged partnership. The heirs heavily
rely on Jimmy's testimony. But that testimony is just one
piece of evidence against Juliet. In civil cases, the party
having the burden of proof must establish his case by a
preponderance of evidence. "Preponderance of evidence"
is the weight, credit, and value of the aggregate evidence
on either side and is usually considered synonymous with
the term "greater weight of the evidence" or "greater
weight of the credible evidence." "Preponderance of
evidence" is a phrase that, in the last analysis, means
probability of the truth. It is evidence that is more
convincing to the court as worthy of belief than that which
is offered in opposition thereto. Rule 133, Section 1 of the
Rules of Court provides the guidelines in determining
preponderance of evidence, thus:
SECTION I. Preponderance of evidence, how
determined. In civil cases, the party having burden of
proof must establish his 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 may legitimately appear upon the trial. The
court may also consider the number of witnesses,
though the preponderance is not necessarily with the
greater number.

Applying the legal provision to the facts of this case, the
following circumstances tend to prove that Elfledo was
himself the partner of Jimmy and Norberto: 1) Cresencia
testified that Jose gave Elfledo money, as share in the
partnership, on a date that coincided with the payment of
the initial capital in the partnership; (2) Elfledo ran the
affairs of the partnership, wielding absolute control,
power and authority, without any intervention or
opposition whatsoever from any of the heirs; (3) all of the
properties, particularly the nine trucks of the partnership,
were registered in the name of Elfledo; (4) Jimmy testified
that Elfledo did not receive wages or salaries from the
partnership, indicating that what he actually received
were shares of the profits of the business; and (5) none of
the heirs, the alleged partner, demanded periodic
accounting from Elfledo during his lifetime. As repeatedly
stressed in Heirs of Tan Eng Kee v. CA, a demand for
periodic accounting is evidence of a partnership.
Furthermore, the heirs failed to adduce any evidence to
show that the real and personal properties acquired and
registered in the names of Elfledo and Juliet formed part
of the estate of Jose, having been derived from Jose's
alleged partnership with Jimmy and Norberto. They failed
to refute Juliet's claim that Elfledo and Juliet were
engaged in other businesses. Thus, we apply the basic rule
of evidence that between documentary and oral evidence,
the former carries more weight.

PEOPLE OF THE PHILIPPINES v. ALBERT SANCHEZ y
GALERA G.R. No. 188610, June 29, 2010 (VELASCO, JR., J.)

Albert Sanchez y Galera stealthily entered the residence of
the De Leon family where he stabbed and succeeded in
killing some of the family members. The records
established that when the mother discovered that her son
was bathed in blood the son uttered that, "Mama, si Kuya
Albert sinaksak ako". The RTC convicted Sanchez of two
counts of murder and two counts of frustrated murder.

ISSUE:ls Lhe son's flnal words Lo hls moLher admlsslble as
evidence?

HELD: What Jufer uttered just before he expired - "Mama,
si Kuya Albert, sinaksak ako"- is admissible in evidence
against the appellant pursuant to Section 37, Rule 130 of
the Rules of Court.
Sec. 37. 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.

A dying declaration is an evidence of the highest order; it
is entitled to the utmost credence on the premise that no
one person who knows of his impending death would
make a careless and false accusation. At the brink of
death, all thoughts of concocting lies disappear.

SPOUSES MANUEL and VICTORIA SALIMBANGON v.
SPOUSES SANTOS AND ERLINDA TAN G.R. No. 185240,
January 20, 2010 (ABAD, J.)

Guillermo Ceniza died intestate and his children, including
herein petitioner Victoria Salimbangon, executed an
extrajudicial declaration of heirs and partition,
adjudicating and dividing the land among themselves. To
give the interior lots access to the street, the heirs
annotated an easement of right of way consisting of a 3-
meter wide alley across the property. But, realizing that
the partition resulted in an unequal division of the
property, the heirs modified their agreement by
eliminating the easement of right of way and in its place,
imposed a 3-meter wide alley, an easement of right of
way, that ran exclusively along the southwest boundary of
the property. Victoria and her husband constructed a
residential house on this lot and built two garages on it.
One garage abutted the street while the other used the
alley or easement of right of way which was cemented
and gated by Victoria. The remaining lots were brought by
Spouses Santos and Erlinda Tan who also built
improvements on the easement and closed the gate that
Victoria built. Unable to use the old right of way, the
Victoria lodged a complaint with the City Engineer against
the Tans. On the other hand, the Tans filed an action with
the RTC against Victoria for the extinguishment of the
easement with preliminary injunction. RTC upheld
vlcLorla's easemenL of rlghL of way over Lhe properLy
belong to the Tans. The CA reversed said ruling and
extinguished the easement based on the testimony of one
of the previous owners, Eduardo Ceniza, the true intent of
EVIDENCE


369
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
the parties was to establish that easement of right of way
for the benefit of the interior lots.

ISSUE:Can parole evidence be admitted in an action for
extinguishment of easement of right of way?

HELD:The parole evidence rule, said the Victoria,
precluded the parties from introducing testimony that
tended to alter or modify what the parties had agreed on
above. But the exclusionary provision of the parole
evidence rule admits of exceptions. Section 9, Rule 130 of
the Revised Rules on Evidence states:
Sec. 9. Evidence of written agreements. - When the
terms of an agreement have been reduced to writing,
it is considered as containing all the terms agreed upon
and there can be, between the parties and their
successors in interest, no evidence of such terms other
than the contents of the written agreement. However,
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:
(a) An intrinsic ambiguity, mistake or imperfection
in the written agreement;
(b) The failure of the written agreement to
express the true intent and agreement of the parties
thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the
parties or their successors in interest after the
execution of the written agreement.

1he Lerm agreemenL" lncludes wllls. Pere, Lhe 1ans had
put in issue the true intent and agreement of the parties
to the partition when they alleged that the easement was
actually for both Victoria and Lduardo Cenlza's beneflL.
Consequently, with the above averment, the Tans were
entitled to introduce evidence to establish the true intent
and agreement of the parties although this may depart
from what the partition agreement literally provided. At
any rate, as the CA said, the Victoria did not object at the
hearlng Lo admlsslon of Lduardo Cenlza's LesLlmony even
when this seemed at variance, as far as they were
concerned, with the partition agreement among the heirs.
Consequently, the Victoria may also be deemed to have
waived their right to now question such testimony on
appeal. The point is that, obviously, in establishing the
new easement of right of way, the heirs intended to
abandon the old one. And, with the ownership of the
property now consolidated in a common owner, namely,
the Tans, then the easement of right of way may be said
to have been extinguished by operation of law.

ANTONIO LEJANO v. PEOPE OF THE PHILIPPINES G.R. No.
176389, 14 December 2010 (Abad, J.)

Alfaro was Lhe n8l's sLar wlLness, their badge of excellent
investigative work. After claiming that they had solved the
crime of the decade, the NBI people had a stake in making
her sound credible, and obviously, they gave her all the
preparations she needed for the job of becoming a fairly
good subsLlLuLe wlLness. he was Lhelr darllng" of an
asset. And this is not pure speculation. As pointed out
above, Sacaguing of the NBI, a lawyer and a ranking
official confirmed this to be a cold fact. Why the trial court
and Court of Appeals failed to see this is mystifying.

In 1991, Estrellita Vizconde and her daughters Carmela,
nineteen years old, and Jennifer, seven, were brutally slain
at their home in Paraaque City. Four years later, the NBI
announced that it had solved the crime. It presented star-
witness Jessica M. Alfaro, one of its informers, who
claimed that she witnesses the crime. She pointed to the
accused PuberL !effrey . Webb, AnLonlo 1ony 8oy"
Le[ano, ArLemlo uong" venLura, Mlchael A. CaLchallan,
Posplclo yke" lernandez, eLer LsLrada, Mlguel Clng"
Rodriguez, and Joey Filart as the culprits. She also tagged
accused police officer, Gerardo Biong, as an accessory
afLer Lhe facL. elylng prlmarlly on Alfaro's LesLlmony, on
August 10, 1995, the public prosecutors filed information
for rape with homicide against Webb, et al.

The RTC of Paraaque presided over by Judge Amelita G.
Tolentino tried only seven of the accused since Artemio
Ventura and Joey Filart remained at large. The
prosecution presented Alfaro as its main witness with the
others corroborating her testimony. These included the
medico-legal officer who autopsied the bodies of the
victims, the security guards of Pitong Daan Subdivision,
Lhe former laundrywoman of Webb's household, pollce
offlcer 8long's former glrlfrlend, and Lauro G. Vizconde,
LsLrelllLa's husband.

For their part, some of the accused testified, denying any
part in the crime and saying they were elsewhere when it
Look place. Webb's allbl appeared Lhe sLrongesL slnce he
claimed that he was then in the United States of America.
He presented the testimonies of witnesses as well as
documentary and object evidence to prove this. In
addition, the defense presented witnesses to show
Alfaro's bad repuLaLlon for LruLh and Lhe lncredlble naLure
of her testimony.

The trial court found a credible witness in Alfaro. It noted
her categorical straightforward, spontaneous and frank
testimony, undamaged by grueling cross-examinations.

The RTC rendered judgment, finding all the accused guilty
as charged and imposing on Webb, Lejano, Gatchalian,
Fernandez, Estrada and Rodriguez the penalty of reclusion
perpetua and on Biong, an indeterminate prison term of
eleven years, four months and one day to twelve years.
Cn appeal, Lhe CourL of Appeals afflrmed 1C's declslon.

In 2010, as a result of its initial deliberation in this case,
the Court issued a Resolution granting the request of
Webb to submit for DNA Analysis the semen specimen
Laken from Carmela's cadaver, whlch speclmen was Lhen
believed still under the safekeeping of NBI.

Unfortunately, the NBI informed the Court that it no
longer has custody of the specimen, the same having been
turned over to the trial court. The trial court record
shows, however, that the specimen was not among the
object evidence that the prosecution offered in evidence
in the case. This outcome prompted the accused Webb to
file an urgent motion to acquit on the ground that the
governmenL's fallure Lo preserve such vlLal evldence has
resulted in the denial of his right to due process.

ISSUES:
1. WheLher or noL Alfaro's LesLlmony as
eyewitness is entitled to belief
UST GOLDEN NOTES 2011



370
REMEDIAL LAW TEAM:
ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES

2. WheLher or noL Webb's pleces of evldence are
proven sufflclenL enough Lo rebuL Alfaro's
testimony

HELD: CA Decision REVERSED and SET ASIDE.

Alfotos testlmooy os eyewltoess

But was it possible for Alfaro to lie with such abundant
details some of which even tallied with the physical
evidence at the scene of the crime? No doubt, yes.

The Vizconde massacre had been reported in the media
with dizzying details. Everybody was talking about what
the police found at the crime scene and there were lots of
speculations about them.

Alfaro was Lhe n8l's sLar wlLness, Lhelr badge of excellenL
investigative work.lavvphil After claiming that they had
solved the crime of the decade, the NBI people had a
stake in making her sound credible and, obviously, they
gave her all the preparations she needed for the job of
becoming a fairly good substitute witness. She was their
"darling" of an asset. And this is not pure speculation. As
pointed out above, Sacaguing of the NBI, a lawyer and a
ranking official, confirmed this to be a cold fact. Why the
trial court and the Court of Appeals failed to see this is
mystifying.

At any rate, did Alfaro at least have a fine memory for
faces that had a strong effect on her, given the
circumstances? Not likely. She named Miguel "Ging"
Rodriguez as one of the culprits in the Vizconde killings.
But when the NBI found a certain Michael Rodriguez, a
drug dependent from the Bicutan Rehabilitation Center,
initially suspected to be Alfaro's Mlguel odrlguez and
showed him to Alfaro at the NBI office, she ran berserk,
slapping and kicking Michael, exclaiming: "How can I
forget your face. We just saw each other in a disco one
month ago and you told me then that you will kill me." As
it turned out, he was not Miguel Rodriguez, the accused in
this case.

Two possibilities exist: Michael was really the one Alfaro
wanted to implicate to settle some score with him but it
was too late to change the name she already gave or she
had myopic vision, tagging the wrong people for what
they did not do.

There is another thing about a lying witness: her story
lacks sense or suffers from inherent inconsistencies. An
understanding of the nature of things and the common
behavior of people will help expose a lie. And it has an
abundant presence in this case.

One. In her desire to implicate Gatchalian, Fernandez,
Estrada, Rodriguez, and Filart, who were supposed to be
Webb's co-principals in the crime, Alfaro made it a point
to testify that Webb proposed twice to his friends the
gang-rape of Carmela who had hurt him. And twice, they
(including, if one believes Alfaro, her own boyfriend
Estrada) agreed in a chorus to his proposal. But when they
goL Lo Carmela's house, only Webb, Le[ano, venLura, and
Alfaro entered the house.

Gatchalian, Fernandez, Estrada, and Rodriguez supposedly
sLayed around Alfaro's car, whlch was parked on Lhe
sLreeL beLween Carmela's house and Lhe nexL. ome of
Lhese men saL on Lop of Lhe car's lld whlle oLhers mllled
on the sidewalk, visible under the street light to anyone
who cared to watch them, particularly to the people who
were having a drinking party in a nearby house. Obviously,
Lhe behavlor of Webb's companlons ouL on Lhe sLreeL dld
not figure in a planned gang-rape of Carmela.

Two. venLura, Alfaro's dope suppller, lnLroduced her for
the first time in her life to Webb and his friends in a
parking lot by a mall. So why would she agree to act as
Webb's messenger, uslng her gas, Lo brlng hls message Lo
Carmela at her home. More inexplicably, what motivated
Alfaro to stick it out the whole night with Webb and his
friends?

They were practically strangers to her and her boyfriend
Estrada. When it came to a point that Webb decided with
his friends to gang-rape Carmela, clearly, there was
nothing in it for Alfaro. Yet, she stuck it out with them, as
a police asset would, hanging in there until she had a
crime to report, only she was not yet an "asset" then. If,
on the other hand, Alfaro had been too soaked in drugs to
think clearly and just followed along where the group took
her, how could she remember so much details that only a
drug-free mind can?

Three. When Alfaro went to see Carmela at her house for
the second time, Carmella told her that she still had to go
out and that Webb and his friends should come back
around midnight. Alfaro returned to her car and waited
for Carmela to drive out in her own car. And she trailed
her up to Aguirre Avenue where she supposedly dropped
off a man whom she LhoughL was Carmela's boyfrlend.
Alfaro's Lralllng Carmela Lo spy on her unfalLhfulness Lo
Webb did not make sense since she was on limited errand.
But, as a critical witness, Alfaro had to provide a reason
for Webb to freak out and decide to come with his friends
and harm Carmela.

Four. According to Alfaro, when they returned to
Carmela's house Lhe Lhlrd Llme around mldnlghL, she led
Webb, Lejano, and Ventura through the pedestrian gate
that Carmela had left open. Now, this is weird. Webb was
the gang leader who decided what they were going to do.
He decided and his friends agreed with him to go to
Carmela's house and gang-rape her. Why would Alfaro, a
woman, a stranger to Webb before that night, and
obviously with no role to play in the gang-rape of Carmela,
lead him and the others into her house? It made no sense.
It would only make sense if Alfaro wanted to feign being a
witness to something she did not see.

Five. Alfaro went out of the house to smoke at the garden.
After about twenty minutes, a woman exclaimed, "Sino
yan?" On hearing this, Alfaro immediately walked out of
the garden and went to her car. Apparently, she did this
because she knew they came on a sly. Someone other
than Carmela became conscious of the presence of Webb
and others in the house. Alfaro walked away because,
obviously, she did not want to get involved in a potential
confrontation. This was supposedly her frame of mind:
fear of getting involved in what was not her business.

EVIDENCE


371
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ


U N I V E R S I T Y O F S A N T O T O M A S
Fac ul t a d de De r e c ho Ci vi l
But if that were the case, how could she testify based on
personal knowledge of what went on in the house? Alfaro
had to change that frame of mind to one of boldness and
reckless curiosity. So that is what she next claimed. She
went back into the house to watch as Webb raped
Carmela on Lhe floor of Lhe masLer's bedroom. Pe had
apparently sLabbed Lo deaLh Carmela's mom and her
young sister whose bloodied bodies were sprawled on the
bed. Now, Alfaro testified that she got scared (another
shift to fear) for she hurriedly got out of the house after
Webb supposedly gave her a meaningful look.

Alfaro quickly went to her car, not minding Gatchalian,
Fernandez, Estrada, Rodriguez, and Filart who sat on the
car or milled on the sidewalk. She did not speak to them,
even to Estrada, her boyfriend. She entered her car and
turned on the engine but she testified that she did not
know where to go. This woman who a few minutes back
led Webb, Lejano, and Ventura into the house, knowing
that they were decided to rape and harm Carmela, was
suddenly too shocked to know where to go! This
emotional pendulum swing indicates a witness who was
confused with her own lies.

webbs Allbls to kebot Alfotos 1estlmooy

Among the accused, it was Webb who presented the
strongest alibi. His travel preparations were confirmed by
Rajah Tours and the Philippine immigration, confirming
that he indeed left for San Francisco, California with his
Aunt Gloria on March 9, 1991 on board the United Airlines
Flight 808. His passport was stamped and his name was
llsLed on Lhe unlLed Alrllnes lllghL's assenger ManlfesL.
Upon reaching US, the US immigration recorded his entry
to the country. Moreover, details of his very stay there,
including his logs and paychecks when he worked,
documents when he purchased a car and his license were
presented as additional evidence, and he left for
Philippines on October 26, 1992. Supreme Court accused
the trial court and the Court of Appeals as having a mind
that is made cynical by the rule drilled into his head that a
defense of allbl ls a hangman's noose ln Lhe faces of a
wlLness squeaklng l saw hlm do lL". A [udge, accordlng Lo
the Court, must keep an open mind, and must guard
against slipping into hasty conclusions arising from a
desire to quickly finish the job of deciding a case.

For positive identification to be credible, two criteria must
be met: 1.) the positive identification of the offender must
come from a credlble wlLness 2.) Lhe wlLness' sLory of
what she personally saw must be believable, not
inherently contrived.

For alibi to be credible and established on the other hand,
it must be positive, clear and documented. It must show
that it was physically impossible for him to be at the scene
of Lhe crlme. Webb was able Lo esLabllsh hls allbl's
credibility with his documents. It is impossible for Webb,
despite his so called power and connections to fix a
forelgn alrllnes' passenger manlfesL. Webb's deparLure
and arrival were authenticated by the Office of the US
Attorney General and the State Department.

In our criminal justice system, what is important is, not
whether the court entertains doubts about the innocence
of the accused since an open mind is willing to explore all
possibilities, but whether it entertains a reasonable,
lingering doubt as to his guilt. For, it would be a serious
mistake to send an innocent man to jail where such kind
of doubL hangs on Lo one's lnner belng, llke a plece of
meat lodged immovable between teeth.

Will the Court send the accused to spend the rest of their
lives in prison on the testimony of an NBI asset who
proposed to her handlers that she take the role of the
witness to the Vizconde massacre that she could not
produce?

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