203
UP
L
AW
BAR REVIEWER
2012
REMEDIAL
Evidence
BAR OPERATIONS COMMISSION 2012
EXECUTIVE COMMITTEE
Ramon Carlo Marcaida |Commissioner
Raymond Velasco Mara Kriska Chen |Deputy Commissioners
Barbie Kaye Perez |Secretary
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LAW
REMEDIAL LAW TEAM 2012
Subject Head | Eden Mopia
Evidence Subject Head |
Arianne Cerezo
Contributors | Gianna Maria
Comsti Rose Andrea Milaor
Armando Mislang, Jr.
Rafaella Carmela Reyes
Elaine Tiu
LAYOUT TEAM 2012
Layout Artists | Alyanna
Apacible Noel Luciano RM
Meneses Jenin Velasquez
Mara Villegas Naomi
Quimpo Leslie Octaviano
Yas Refran Cris Bernardino
Layout Head| Graciello
Timothy Reyes
Evidence
204
Criminal Procedure
Civil Procedure
Evidence
Special Proceedings
REMEDIAL LAW
General Principles
Judicial Notice and Judicial
Admissions
III. Object (Real) Evidence
IV. Documentary Evidence
V. Testimonial Evidence
VI. Offer and Objection
I.
II.
I. GENERAL PRINCIPLES
A. Concept of Evidence
B. Scope of the Rules of Evidence
C. Evidence in Civil Cases vs. Evidence in
Criminal Cases
D. Proof Versus Evidence
E. Factum
Probans
Versus
Factum
Probandum
F. Admissibility of Evidence
G. Burden of Proof and Burden of Evidence
H. Presumptions
I. Liberal Construction of the Rules of
Evidence
J. Quantum of Evidence (Weight And
Sufficiency of Evidence)
A. Concept of Evidence
The means, sanctioned by these rules, of
ascertaining in a judicial proceeding, the truth
respecting a matter of fact [sec. 1, Rule 128]
Presumption
innocence
NOT apply
of
does
In Criminal Cases
Proof
beyond
reasonable
doubt [sec. 2, Rule 133]
Offer of compromise by the
accused may be received in
evidence
as
an
implied
admission of guilt (except for
quasi-offenses
or
those
allowed by law to be
compromised) [sec. 27, Rule
130]
Presumption of innocence a
constitutional guarantee on
the accused [sec. 14, Art. III]
Evidence
The medium or means by
which a fact is proved or
disproved
Factum Probandum
The proposition to be
established
The fact in issue and to
which the evidence is
directed
Classification of evidence
Object, documentary, and testimonial
Object
Addressed
to
the senses of
the court. [Rule
130, Sec. 1]
Documentary
Consist
of
writings or any
material
containing
letters, words,
numbers,
figures,
symbols
or
other modes of
written
expressions
offered
as
proof of their
contents [Rule
130, sec. 2]
Testimonial
Testimony
or
deposition of a
witness
Circumstantial
Indirectly proves a fact
in issue through an
inference drawn from
the
evidence
established
Negative Evidence
Witness states he/she
did not see or know of
the occurrence of a
fact (e.g., denial)
F. Admissibility of Evidence
Requisites for admissibility of evidence
Evidence is admissible when it is
(1) relevant to the issue AND
No person shall be
compelled to be a
witness
against
himself. [Sec.17,Art.III]
Statutory
Lack
of
documentary
stamp tax to documents
required to have one
makes such document
inadmissible as evidence
in court until the requisite
stamp/s shall have been
affixed
thereto
and
cancelled.
[Sec.
201,
NIRC]
Any
communication
obtained by a person, not
being authorized by all
the parties to any private
communication,
by
tapping any wire/cable or
using
any
other
device/arrangement
to
secretly
overhear/intercept/record
such information by using
any device, shall not be
admissible in evidence in
any
judicial/quasijudicial/legislative/
administrative hearing or
investigation. [Secs. 1 and
4, R.A. 4200 (WireTapping Act)]
Rules
on
Electronic
Evidence [sec. 1,Rule 9,]
Credibility
Worthiness of belief;
believability
Doctrines of admissibility
Multiple admissibility
Where the evidence is relevant and competent for
two or more purposes, such evidence shall be
admitted for any or all the purposes for which it is
offered, provided it satisfies all the requisites of law
for its admissibility therefor.
Conditional admissibility
Where the evidence at the time of its offer appears
to be immaterial or irrelevant unless it is connected
with the other facts to be subsequently proved, such
evidence may be received, provided that the other
facts will be proved thereafter; otherwise, the
evidence already given shall be stricken out.
Curative admissibility
Where the court has admitted incompetent evidence
adduced by the adverse party, a party has a right to
introduce the same kind of evidence in his/her
behalf.
Circumstantial
Indirectly proves a fact
in issue through an
inference drawn from
the evidence established
Negative Evidence
Witness states he/she
did not see or know of
the occurrence of a fact
(e.g., denial)
Credibility
Worthiness of belief;
believability
205
206
Burden of Proof
Duty of a party to
present evidence on the
facts in issue necessary
to
establish
his/her
claim or defense by the
amount
of
evidence
required by law [Sec. 1,
Rule 131]
Does
not
shift
throughout the trial
Preponderance of evidence
Generally determined by
the pleadings filed by
the party
Burden of Evidence
Duty of a party to go
forward
with
the
evidence to overthrow
any
prima
facie
presumption
against
him/her
[Bautista
v
Sarmiento (1985)]
Shifts from party to
party depending upon
the exigencies of the
case in the course of the
trial
Generally determined by
the developments at the
trial, or by the provisions
of
substantive
or
procedural law
H. Presumptions
1. Conclusive presumptions
2. Disputable presumptions
Conclusive
Presumption becomes
irrebuttable
upon
presentation of the
evidence
Disputable
Satisfactory
if
uncontradicted,
but
may be contradicted
and overcome by other
evidence [sec. 3, Rule
131]
Substantial evidence
Degree of evidence required in cases filed before
administrative or quasi-judicial bodies [sec. 5, Rule
133]
The amount of relevant evidence which a reasonable
mind might accept as adequate to support a
conclusion [sec. 5, Rule 133]
Discretionary
(1) Matters of public knowledge;
(2) Matters
capable
of
unquestionable
demonstration; and
(3) Matters ought to be known to judges because of
their judicial functions. [sec. 2, Rule 129]
Judicial notice is NOT judicial knowledge.
With Respect to Courts Own Acts and Records: A
court MAY take judicial notice of its own acts and
records in the same case. [Republic v Court of
Appeals (1997)]
With Respect to Records of Other Cases
C. Judicial Admissions
Requisites
To be a judicial admission, the same:
(1) must be made by a party to the case;
(2) must be made in the course of the proceedings
in the same case; and
207
How judicial
contradicted
admissions
may
be
Conclusive presumptions
Instances of Conclusive Presumptions [Sec. 2,
Rule 131]
(1) Whenever a party has, by his own
declaration/act/omission, intentionally and
deliberately led another to believe a particular
thing is true and to act upon such belief, he
cannot, in any litigation arising out of such
declaration/act/omission, be permitted to
falsify it.
(2) 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.
As
Distinguished
from
Presumptions [Sec. 3, Rule 131]
Disputable
208
Presumption
Considered to have been
conceived during the former
marriage, provided it be born
within 300 days after the
termination of the former
marriage
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.
Situation
Both < 15 y/o
Both > 60 y/o
One < 15 y/o,
the other > 60 y/o
Both > 15 and < 60
y/o, of different sexes
Both > 15 and <60 y/o,
of the same sex
One < 15 or > 60 y/o,
and the other between
those ages
Law of Nations
The Philippines adopts the generally accepted
principles of international law as part of the law of
the land. [Sec. 2, Art. II, 1987 Constitution]
Being part of the law of the land, they are therefore
in the nature of local laws, and hence, subject to
mandatory judicial notice under sec. 1 of Rule 129.
Municipal Ordinances
General Rule: Courts are NOT mandated to take
judicial notice of municipal ordinances. [City of
Manila v. Garcia (1967)]
Competent
Evidence be Authenticated
To authenticate the object is to show that the
object is the very thing that is either the subject
matter of the lawsuit or the very one involved to
prove an issue in the case.
Authentication be Made by Competent Witness
To authenticate the object, the witness must have
the capacity to identify the object as the very thing
involved in the litigation.
A witness can testify to those facts which he/she
knows of his/her personal knowledge; that is, which
are derived from his/her own perception. [sec. 36,
Rule 130]
209
210
D. Demonstrative Evidence
Not the actual thing, rather it represents or
demonstrates the real thing, E.g., photographs,
motion pictures and recordings
Audio, photographic and video evidence of events,
acts or transactions shall be admissible provided it
shall be:
(1) shown, presented or displayed to the court, and
(2) identified, explained or authenticated
(a) by the person who made the recording, or
(b) by some other person competent to testify
on the accuracy thereof [sec. 1, Rule 11,
Rules on Electronic Evidence]
Ephemeral electronic communications
Refers to telephone conversations, text messages,
chatroom sessions, streaming audio, streaming
video, and other electronic forms of communication
the evidence of which is not recorded or retained.
[sec. 1(k), Rule 2, Rules on Electronic Evidence]
Shall be proven
(1) by the testimony of a person who was a party to
the same;
(2) by the testimony of a person who has personal
knowledge thereof; or
(3) in the absence or unavailability of such
witnesses, by other competent evidence [sec. 2,
Rule 11, Rules on Electronic Evidence]
When recorded, the communication ceases to be
ephemeral and shall be proven in the same manner
as proving audio, photographic and video evidence
[sec. 2, Rule 11, Rules on Electronic Evidence].
(c) Compliance
with
scientifically
standards in conducting the tests
A. Meaning
Evidence
of
Documentary
valid
(1) Relevant
(2) Competent
(a) Document be Authenticated
211
212
Meaning of original
Original document
(1) One the contents of which are the subject of
inquiry
(2) All such copies of a executed at or about the
same time, and with identical contents
NOTE: Carbon copies are deemed duplicate
originals. [People v Tan (1959)]
(3) All such entries made and repeated in the
regular course of business, at/near the time of
the transaction [Rule 130, sec. 4]
Electronic document
(1) Information
or
the
representation
of
information, data, figures, symbols or other
modes of written expression,
(2) described or however represented, by which a
right
is
established
or
an
obligation
extinguished, or by which a fact may be proved
and affirmed,
(3) which is received, recorded, transmitted, stored
processed, retrieved or produced electronically.
(4) It includes digitally signed documents and any
print-out or output, readable by sight or other
means, which accurately reflects the electronic
data message or electronic document.
For purposes of these Rules, the term electronic
document may be used interchangeably with
electronic data message.
Electronic data message
Information generated, sent, received or stored by
electronic, optical or similar means
213
214
showing
the
Public Documents
Admissible
without
further proof of its due
execution
and
authenticity
215
216
V. TESTIMONIAL EVIDENCE
A. Qualifications of a Witness
B. Competency versus Credibility of a
Witness
C. Disqualifications of Witnesses
D. Examination of a Witness
E. Admissions and Confessions
F. Hearsay Rule
G. Opinion Rule
H. Character Evidence
I. Rule on Examination of a Child Witness
(A.M. No. 004-07-SC)
A. Qualifications of a
[Rule 130, sec. 20]
Witness
Credibility
Has nothing to do with
the law or rules
Refers to the weight and
trustworthiness
or
reliability
of
the
testimony
of
Requisites
(1) Person must be incapable of intelligently
making known his perception to others
(2) His incapability must exist at the time of his
production for examination
A mental retardate is not for this reason alone
disqualified from being a witness. Acceptance of his
testimony depends on its nature and credibility or,
otherwise put, the quality of his perceptions and the
manner he can make them known to the court.
[People v. Salomon (1993)]
By reason of immaturity [Rule 130, sec. 21b]
2. Disqualification
marriage
by
reason
of
C. Disqualifications of Witnesses
1. Disqualification by reason
mental capacity or immaturity
Requisites
(1) Mental maturity of the witness (child) must
render him incapable of perceiving the facts
respecting which he is examined.
(2) He is incapable of relating his perception
truthfully.
4. Disqualification
by reason
privileged communications
of
between the
received in
and
was received
Marital Privilege
Neither of the spouses
needs to be a party;
Does not cease even
after the marriage is
dissolved; and
Prohibition is limited to
testimony
on
confidential
communications
between spouses.
of
presidential
communications
217
218
D. Examination of a Witness
Rights of a witness
(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, e.g., Sec. 8, RA 1379 and other
immunity statutes which grant the witness
immunity from criminal prosecution for offenses
admitted
(5) Not to give an answer which will tend to
degrade his reputation, unless it to be 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.
Exceptions:
(1) On cross examination;
(2) On preliminary matters;
(3) When there is a difficulty is 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) On an unwilling or hostile witness;
Effect
(1) May be given in evidence against the admitter
[sec. 26, Rule 130]
(2) Flight from justice is an admission by conduct
and circumstantial evidence of consciousness of
guilt. [US v. Sarikala (1918)]
Rationale
No man would make any declaration against himself
unless it is true. [Republic v. Bautista (2007)]
As Distinguished from Judicial Admissions
Judicial
Made in connection with
a judicial proceeding in
which it is offered
Rule 129, sec. 4
Extrajudicial
Any other admission
Rule 130, secs. 26 and 32
By Silence
Requisites for Admissibility:
(1) An act or declaration is made in the presence
and within the hearing or observation of a party;
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220
2. Confessions
A declaration of an accused acknowledging his guilt
of the offense charged, or of any offense necessarily
included therein [sec. 33, Rule 130]
If the accused admits having committed the act in
question but alleges a justification therefore, the
same is merely an admission. [US v. Tolosa]
Any confession, including a re-enactment, without
admonition of the right to silence and to counsel,
and without counsel chosen by the accused is
inadmissible in evidence. [People v. Yip Wai Ming
(1996)]
General Rule: An extra-judicial confession made by
an accused is not a sufficient ground for conviction.
[sec. 3, Rule 133]
Exception: When corroborated by evidence of the
actual commission of a particular crime (corpus
delicti). [sec. 3, Rule 133]
As Distinguished from Admissions of a Party
Admission
Merely a statement of
fact
Maybe express or tacit
Maybe made by 3rd
parties, and in certain
cases, admissible against
a party
Confession
Acknowledgment of guilt
or liability
Must be express
Can be made only by the
party himself, and
admissible against his
co-accused in some
instances
Admission by a party
Please see discussion in previous section (previous
page)
Confessions
Please see discussion in previous section (previous
page)
F. Hearsay Rule
Meaning of hearsay
(1) Out-of-court statement
(2) Offered by the witness in court to prove the
truth of the matters asserted by the statement
Any evidence, whether oral or documentary, if its
probative value is not based on personal knowledge
of witness but on knowledge of some other person
not on witness stand [Regalado 11th ed.]
Doctrine of Independently Relevant Statements
Statements or writings attributed to a person not on
the witness stand, which are being offered not to
prove the truth of the facts stated therein, but only
to prove that such were actually made.
These are NOT covered by the hearsay rule [People
v. Cusi (1965)]
Declaration against
Interest
Declarant is neither a
party nor in privity with
a party;
Admissible only when
declarant is unavailable
as a witness;
Must have been made
ante litem motam;
Admissible even against
3rd persons; and
Admissible
as
an
exception to the hearsay
rule
221
222
Admissible Statements
(1) Spontaneous statements - Statements made by a
person while a startling occurrence is taking
place or immediately prior or subsequent
thereto, with respect to the circumstances
thereof
(a) Principal act be a startling occurrence
(b) Statement made before declarant had
opportunity to contrive
(c) Statement refer to occurrence in question
and attending circumstances
(2) Verbal acts - Statements, which accompany an
equivocal act material to the issue and give it a
legal significance
(a) Principal act must be equivocal
(b) Act must be material to the issue
(c) Statement must accompany the equivocal
act
(d) Statement gives legal significance to
equivocal act
(e) Must be made at the time, not after, the
equivocal act was being performed
A dying declaration can be made only by the victim
after the attack while a statement as part of the res
gestae may be that of the killer himself after or
during the killing. [People v. Reyes]
5) Common reputation
Requisites for Admissibility
(1) Reputation pertains to:
(a) facts of public or general interest more
than 30 years old,
(b) marriage, or
(c) moral character
(2) Common reputation existed ante litem motam.
[sec. 41, Rule 130]
Other Admissible Evidence
(a) Monuments
(b) Inscriptions in public places [sec. 41, Rule 130]
Pedigree may be established by reputation in the
family, but NOT in the community. [Rule 130, secs.
40-41]
G. Opinion Rule
GENERAL RULE: The opinion of a witness is not
admissible. [Sec. 48, Rule 130]
EXCEPTIONS [NOTE: Please refer to succeeding
subsections for discussion]
(1) Expert witness
(2) Ordinary witness
H. Character Evidence
GENERAL RULE [sec. 51, Rule 130]: Character
evidence is not admissible.
EXCEPTIONS
(1) Criminal cases [sec. 51(a), Rule 130]
(a) Accused May prove his good moral
character, which is pertinent to the moral
trait involved in the offense charged.
(b) Prosecution May not prove the bad moral
character of the accused, except in
rebuttal.
(c) Offended Party His/her good or bad moral
character may be proved if it tends to
establish in any reasonable degree the
im/probability of the offense charged.
(2) Civil cases
(a) Moral character is admissible only when
pertinent to the issue of character involved
in the case. [sec. 51(b), Rule 130]
(b) Evidence of the witness good character is
not admissible until such character has
been impeached. [sec. 14, Rule 130]
223
224
Protective orders
Video/audio tapes that are part of the court record
may be viewed only by parties, their counsel, their
expert witness and the guardian ad litem. [Sec.
31(b)]
The court may issue additional orders to protect the
childs privacy. [Sec. 31(c)]
Publication (or causing it) in any format any
identifying information of a child who is or is alleged
to be a victim/accused of a crime or a witness
thereof, or an immediate family of the child, shall
be liable for contempt of court. [Sec. 31(d)]
A child has a right at any court proceeding not to
testify regarding personal identifying information
that could endanger his physical safety or his family.
[Sec. 31(e)]
Offer of Evidence
When to Make an Offer
Objection
Repetition of an Objection
Ruling
Striking Out of an Answer
Tender of Excluded Evidence
A. Offer of Evidence
Concept [Sec. 34, Rule 132]
(1) Court shall consider no evidence which has not
been formally offered
(2) Purpose for which the evidence is offered must
be specified
(3) As
Distinguished
from
Identification
of
Documentary Evidence [Interpacific Transit v.
Aviles (1990)]
Identification
of Documentary
Evidence
Done in the course of the
trial and accompanied by
the marking of the
evidence
Formal Offer
of Exhibit
Done only when the
party rests his/her case
Kind of evidence
Testimonial
When to offer
At the time the witness is
called to testify
Documentary and After the presentation of a
Object
partys testimonial evidence
Offer shall be done orally unless allowed by the
court to be done in writing.
Absence of an offer is a defect which is waived when
a party fails to object when the ground became
reasonably apparent, as when the witness is called
to testify without any prior offer. [Catuira v. CA
(1994)]
The defect caused by the absence of formal offer of
exhibits can be cured by the identification of the
exhibits by testimony duly recorded and the
incorporation of the said exhibits in the records of
the case. [People v. Mate (1981)]
C. Objection
Concept
What to object to
Testimonial evidence
When to object
Immediately after offer
is made
Question propounded in As soon as the grounds
the course of oral become
reasonably
examination
apparent
Offer done in writing
Within 3 days after
notice of the offer,
unless a different period
is allowed by the court
The grounds for objection
must be specified in any case.
D. Repetition of an Objection
[Sec. 37, Rule 132]
When it becomes reasonably apparent in the course
of the examination of a witness that the questions
being propounded are of the same class as those to
which objection has been made, whether such
objection was sustained or overruled, it shall be
sufficient for the adverse party to record his
continuing objection to such class of questions.
A court may, motu proprio, treat the objection as a
continuing one. [Keller v. Ellerman & Bucknall
Steamship]
E. Ruling
Ruling on the objection [Sec. 38, Rule 132]
Should be given immediately after the objection
is made, unless the court desires to take a
reasonable time to inform itself on the question
presented.
Reason for sustaining or overruling an objection
need not be stated. However, if the objection is
based on two or more grounds, a ruling
sustaining the objection on one or some of them
must specify the ground/s relied upon.
Reservation of a ruling by the court on an
objection to the admissibility of evidence,
225
226