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Chapter I

PRELIMINARY CONSIDERATIONS

A. Miscellaneous Basic Principles

Concept of "Evidence"
1. The term "evidence" is denned by Sec. 1 of Rule 128
of the Rules of Court as follows:

"SECTION 1. Evidence defined. Evidence is the


means sanctioned by these rules, of ascertaining in a
judicial proceeding the truth respecting a matter of
fact."

2. The very tenor of the definition clearly indicates


that not every circumstance which affords an inference as to
the truth or falsity of a matter alleged is considered evidence.
To be considered evidence, the same must be "sanctioned"
or allowed by the Rules of Court. It is not evidence if it is
excluded by law or by the Rules even if it proves the existence
or non-existence of a fact in issue. Thus, a hearsay evidence,
a coerced extrajudicial confession of the accused and an
evidence obtained in violation of constitutional rights even if
ultimately shown to correspond to the truth, do not fall within
the definition of Sec. 1 of Rule 128.
3. The definition provided for under Sec. 1 of Rule 128,
significantly considers "evidence" not as an end in itself but
merely as a "means" of ascertaining the truth of a matter of
fact. Equally significant is the observation that "evidence" as
defined in the Rules of Court is a means of ascertainment of

l
2 EVIDENCE
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the truth not in all types of proceedings but specifically in a


"judicial proceeding."
formal offer of evidence
Purpose of Evidence
The purpose of evidence under the Rules of Court is to
ascertain the truth respecting a matter of fact in a judicial
proceeding (Sec. 1, Rule 128, Rules of Court). Litigations can-
not be properly resolved by suppositions, or even presump-
tions, with no basis in evidence. The truth must have to be
determined by the rules for admissibility and proof (Lagon v.
Hooven Comalco Industries, Inc., 349 SCRA 363). Evidence
is required because of the presumption that the court is not
aware of the veracity of the facts involved in a case. It is there-
fore incumbent upon the parties to prove a fact in issue thru
the presentation of admissible evidence.

Truth as the Purpose of Evidence


While the purpose of evidence is to know the truth, the
truth referred to in the definition is not necessarily the ac-
tual truth but one aptly referred to as the judicial or the legal
truth. The limitations of human judicial systems cannot al-
ways guarantee knowledge of the actual or real truth. Actual
truth may not always be achieved in judicial proceedings be-
cause the findings of the court would depend on the evidence
presented before it based on the accepted rules for admissibil-
ity. Also, under Sec. 34 of Rule 132, courts, as a rule, are not
even authorized to consider evidence which has not been for-
mally offered. Thus, a supposed evidence that would undoubt-
edly show the innocence of the accused will not be considered
in the decision of the court if not formally offered in evidence.
If it is evidence to the contrary that has been formally offered,
it is the latter which the court is bound to consider or appreci-
ate. For instance, while it may be the actual truth that it was
Mr. X who shot M r . Y, if the available evidence presented and
admitted in court points to M r . Z as the culprit, then the judi-
cial or legal truth is that it was M r . Z, not M r . X, who shot M r .
Y.
PRELIMINARY CONSIDERATIONS 3
A. Miscellaneous Basic Principles

When Evidence is Required; When Not Required


1. Evidence is the means of proving a fact. As the defi-
nition says, it is offered to ascertain the truth "respecting a
matter of fact." Implied from the definition of "evidence" in
Sec. 1 of Rule 128 is the need for the introduction of evidence
when the court has to resolve a question of fact. Where no
factual issue exists in a case, there is no need to present evi-
dence because where the case presents a question of law, such
question is resolved by the mere application of the relevant
statutes or rules of this jurisdiction to which no evidence is
required. In the Philippine judicial system, there is a manda-
tory judicial notice of the official acts of the legislature (Sec. 1,
Rule 129, Rules of Court) and these acts cover statutes.
2. W h e n the pleadings in a civil case do not tender an
issue of fact, a trial need not be conducted since there is no
more reason to present evidence. T h e case is then ripe for judi-
cial determination through a judgment on the pleadings pur-
suant to Rule 34 of the Rules of Court.
3. Evidence may likewise be dispensed with by agree-
ment of the parties. The parties to any action are allowed by
the Rules to agree in writing upon the facts involved in the
litigation and to submit the case for judgment upon the facts
agreed upon, without the introduction of evidence (Sec. 6, Rule
30, Rules of Court).
4. Evidence is not also required an matters of judicial
notice (Sec. 1, Rule 129, Rules of Court) and on matters judi-
cially admitted (Sec. 4, Rule 129, Rules of Court).

Applicability of the Rules of Evidence


1. The rules of evidence, being parts of the Rules of
Court, apply only to judicial proceedings (Sec. 1, Rule 128,
Rules of Court).
Significantly, Sec. 4 of Rule 1 provides for the non-appli-
cability of the Rules of Court, including necessarily the rules
of evidence, to certain specified proceedings. The provision de-
clares:
4 EVIDENCE
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"Sec. 4. In what cases not applicable. These


Rules shall not apply to election cases, land registra-
tion, cadastral, naturalization and insolvency proceed-
ings, and other cases not herein provided for, except
by analogy or in a suppletory character and whenever
practicable and convenient."

2. It has been held that administrative bodies are not


bound by the technical niceties of the rules obtaining in a
court of law. Technical rules of procedure and evidence are
not strictly applied and administrative due process cannot be
fully equated with due process in strict judicial terms (Sama-
lio v. Court of Appeals, 454 SCRA 462; El Greco Ship Man-
ning and Management Corporation v. Commissioner of Cus-
toms, G.R. No. 177188, December 4, 2008). It has also been
ruled that a reliance on the technical rules of evidence in labor
cases is misplaced. Hence, the application of the concept of ju-
dicial admissions in such cases would be to exact compliance
with technicalities of law that is contrary to the demands of
substantial justice (Mayon Hotel & Restaurant v. Adana, 458
SCRA 609).
3. The Civil Service Commission for example, conducts
its investigations for the purpose of ascertaining the truth
without necessarily adhering to technical rules of procedure
applicable in judicial proceedings. It was therefore, sustained
by the Supreme Court when it validly appreciated certain
documents in resolving the formal charge against respondent
inspite of the fact that they w e r e not duly authenticated but
the contents of which were not disputed by respondent and
whose only objection was that they were not duly authenticat-
ed (Civil Service Commission v. Colanggo, G.R. No. 174935,
April 30, 2008).

4. In Ong Chia v. Republic (328 SCRA 749), the Court


once again emphasized that the rule on formal offer of evidence
is not applicable to a case involving a petition for naturaliza-
tion. In Ong Chia, the Regional Trial Court rendered judg-
ment in favor of the petitioner's application for naturalization.
On appeal, the Court of Appeals reversed the Regional Trial
Court and denied the application for naturalization on the ba-
PRELIMINARY CONSIDERATIONS 5

A. Miscellaneous Basic Principles

sis of documents not earlier formally offered in the trial court,


raised for the first time on appeal and merely attached to the
appellant's brief for the State. Petitioner contends that under
Sec. 34, Rule 132 of the Rules of Court, only evidence that has
been formally offered shall be considered by the court. Brush-
ing aside petitioner's contention, the Court held that the rule
on formal offer of evidence is not applicable to a case involving
a petition for naturalization unless applied by analogy or in
a suppletory character and whenever practicable and conve-
nient.
v 5. A more recent case, Sasan, Sr. v. NLRC (G.R. No.
176240, October 17, 2008), further illustrates the rule on the
non-applicability of the Rules of Court including the rules of
evidence, to non-judicial proceedings.
In this case the respondent, in support of its material
allegations, submitted before the N L R C several documents
which it did not present before the Labor Arbiter. Largely on
the basis of those documents presented for the first time on
appeal, the N L R C promulgated its decision modifying the rul-
ing of the Labor Arbiter.
Distressed by the decision of the N L R C , the petitioners
sought recourse with the Court of Appeals by filing a petition
for certiorari under Rule 65 of the Rules of Court. In its deci-
sion the Court of Appeals affirmed the findings of the N L R C
holding that the N L R C did not commit a grave abuse of dis-
cretion.
In the Supreme Court, the petitioners raised as one of the
issues the acceptance and consideration by the N L R C of the
evidence presented for the first time on appeal. The Supreme
Court ruled that the issue is not a novel procedural issue, and
that Philippine jurisprudence is replete with cases allowing
the N L R C to admit evidence, not presented before the Labor
Arbiter, and submitted to the N L R C for the first time on ap-
peal.
Explained the Court:
"Technical rules of evidence are not binding in labor
cases. Labor officials should use every reasonable means
6 EVIDENCE
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to ascertain the facts in each case speedily and objective-


ly, without regard to technicalities of law or procedure,
all in the interest of due process. The submission of ad-
ditional evidence before the NLRC is not prohibited by
its New Rules of Procedure. After all, rules of evidence
prevailing in courts of law or equity are not controlling in
labor cases. The NLRC and labor arbiters are directed to
use every and all reasonable means to ascertain the facts
in each case speedily and objectively, without regard to
technicalities of law and procedure all in the interest of
substantial justice. In keeping with this directive, it has
been held that the NLRC may consider evidence, such as
documents and affidavits, submitted by the parties for
the first time on appeal. The submission of additional evi-
dence on appeal does not prejudice the other party for the
latter could submit counter-evidence."

Citing the earlier case of Clarion Printing House, Inc. u.


National Labor Relations Commission (461 SCRA 272), the
Court reiterated what it had in the past already adequately
emphasized:

"[T]he NLRC is not precluded from receiving evi-


dence, even for the first time on appeal, because technical
rules of procedure are not binding in labor cases.
"The settled rule is that the NLRC is not precluded
from receiving evidence on appeal as technical rules of
evidence are not binding in labor cases. In fact, labor of-
ficials are mandated by the Labor Code to use every and
all reasonable means to ascertain the facts in each case
speedily and objectively, without regard to technicali-
ties of law or procedure, all in the interest of due process
. . . the fact that it was duly introduced on appeal to the
NLRC is enough basis for the latter to be more judicious
in admitting the same, instead of falling back on the mere
technicality that said evidence can no longer be consid-
ered on appeal. Certainly, the first course of action would
be more consistent with equity and the basic notions of
fairness."

6. In the Sasan case, the petitioners likewise inter-


posed a protest against the documentary evidence submitted
PRELIMINARY CONSIDERATIONS 7
A. Miscellaneous Basic Principles

by the adverse party because they were mere photocopies. Pe-


titioners invoked the best evidence rule, espoused in Section
3, Rule 130 of the Rules of Court which provides that:

"Section 3. Original document must be produced;


exceptions. When the subject of inquiry is the con-
tents of a document, no evidence shall be admissible
other than the original document itself..."

The Court, in dismissing the objection, stressed once


again that even assuming that petitioners were given mere
photocopies, the proceedings before the N L R C are not covered
by the technical rules of evidence and procedure as observed
in the regular courts. Technical rules of evidence do not ap-
ply if the decision to grant the petition proceeds from an ex-
amination of its sufficiency as well as a careful look into the
arguments contained in position papers and other documents
(Sasan, Sr. v. NLRC, supra).

7. The rule that the provisions of the Rules of Court,


do not apply to administrative or quasi-judicial proceedings
likewise found expression in the earlier case of Bantolino v.
Coca Cola Bottlers, Inc., (403 SCRA 699). Here, the Court re-
iterated previous rulings that the rules of evidence are not
strictly observed in proceedings before administrative bodies
where decisions may be reached on the basis of position pa-
pers only. The Court disregarded the findings of the Court of
Appeals which among others, considered the affidavits of the
petitioners as mere hearsay and thus could not be admitted
in evidence against their employers. The Court unequivocally
ruled that in a labor case, it is not necessary for an affiant to
appear and testify and be cross-examined by counsel for the
adverse party on his affidavit. Administrative bodies are not
bound by the technical niceties of law and procedure and the
rules obtaining in the courts of law.
8. Even if not bound by the technical rules of procedure
"the findings of facts of administrative bodies are however, re-
spected as long as they are supported by substantial evidence,
even if such evidence is not overwhelming or preponderant'
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(Avenido v. Civil Service Commission, G.R. No. 177666, April


30, 2008).
Within the field of administrative law, while strict rules
of evidence are not applicable to quasi-judicial proceedings,
nevertheless, in adducing evidence constitutive of substan-
tial evidence, the basic rule that mere allegation is not evi-
dence cannot be disregarded (Marcelo v. Bungubung, G.R. No.
175201, April 23, 2008).

Application of the Rules on Electronic Evidence


The application of the rules of evidence in the Rules of
Court contrasts with the application of the Rules on Elec-
tronic Evidence. While the definition of "evidence" under the
Rules of Court makes reference only to judicial proceedings,
the provisions of the Rules on Electronic Evidence apply to
all civil actions and proceedings, as well as quasi-judicial and
administrative cases. Sec. 2, Rule 1 of the Rules on Electronic
Evidence provides:

"Sec. 2. Cases covered. These Rules shall apply


to all civil actions and proceedings, as well as quasi-ju-
dicial and administrative cases."

Scope of the Rules of Evidence


The rules of evidence in the Rules of Court are guided by
the principle of uniformity. As a general policy, the rules of
evidence shall be the same in all courts and in all trials and
hearings (Sec. 2, Rule 128, Rules of Court).

"Sec. 2. Scope. The rules of evidence shall be


the same in all courts and in all trials and hearings, ex-
cept as otherwise provided by law or by these rules."

Evidence in Civil Cases Distinguished from Evidence in


Criminal Cases

1. Section 2 of Rule 128 declares that the rules of evi-


dence shall be the same in all trials and hearings, except as
otherwise provided by law or these rules. To declare that the
PRELIMINARY CONSIDERATIONS 9
A. Miscellaneous Basic Principles

rules of evidence shall be the same in all courts and in all tri-
als and hearings, is not to say however, that there are abso-
lutely no distinctions between a civil and a criminal proceed-
ing. Indeed, there are certain evidentiary differences between
these proceedings.

2. In civil cases, the party having the burden of proof


must prove his claim by a preponderance of evidence (Sec. 1,
Rule 133, Rules of Court). In criminal cases, the guilt of the ac-
cused has to be proven beyond reasonable doubt (Sec. 2, Rule
133, Rules of Court).

3. In civil cases, an offer of compromise is not an admis-


sion of any liability, and is not admissible in evidence against
the offeror (Sec. 27, Rule 130, Rules of Court). In criminal cas-
es, ^xcepiDthose involving quasi-offenses (criminal negligence)
or those allowed by law to be compromised, an offer of compro-
miseby the_accused_may be receivejLin evidence as an implied
admission of guilt (Sec. 27, Rule 130, Rules of Court).
4. In civil cases, the concept of presumption of inno-
cence does not apply and generally there is no presumption
for or against a party except in certain cases provided for by
law. Example: A common carrier is presumed to have been at
fault or negligent in case a passenger is injured in the course
of his transportation by the carrier (Art. 1756, Civil Code of
the Philippines).
In criminal cases, the accused enjoys the constitutional
presumption of innocence (Sec. 14, Art. Ill, Constitution of the
Philippines).

Distinction Between Proof and Evidence


1. " P r o o f is not the evidence itself. There is proof only
because of evidence. It is merely the probative effect of evi-
dence and is the conviction or persuasion of the mind result-
ing from a consideration of the evidence (29 Am Jur 2d, Evi-
dence, 2).
2. Evidence is the medium or means by which a fact
is_proved or disproved. Proof is the effect of evidence because
10 EVIDENCE
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without evidence there is no proof (Black's Law Dictionary,


5th Ed., 1094; 1 Jones on Evidence, 4). Bare allegations un-
substantiated by evidence, are not equivalent to proof (Do-
mingo v. Robles, 453 SCRA 812).

Falsus in Uno, Falsus in Omnibus


1. Literally falsus in uno, falsus in omnibus means
"false in one thing, false in everything" (Dawson v. Bertolinin,
70 R.I 325, 38A.2d 765, 768). The doctrine means that if the
testimony of a witness on a material issue is willfully false
and given with an intention to deceive, the jury may disregard
all the witness' testimony (Hargrave v. Stockloss, 127 N.J.L.
262, 21 A.2d 820, 823). It is particularly applied to the testi-
mony of a witness who may be considered unworthy of belief
as to all the rest of his evidence if he is shown to have testified
falsely in one detail.
2. The maxim falsus in uno falsus in omnibus is not
an absolute rule of law and is in fact rarely applied in modern
jurisprudence (People v. Batin, G.R. No. 177223, November
22, 2007). It deals only with the weight of the evidence and is
not a positive rule of law. T h e rule is not an inflexible one of
universal application. Modern trend in jurisprudence favors
more flexibility when the testimony of a witness may be partly
believed and partly disbelieved depending on the corrobora-
tive evidence presented at the trial (People v. Negosa, 456 Phil
861).

3. It is not a positive rule of law and is not strictly ap-


plied in this jurisdiction. Before this maxim can be applied,
the witness must be shown to have wilfully falsified the truth
on one or more material points. T h e principle presupposes the
existence of a positive testimony on a material point contrary
to subsequent declarations in the testimony (Northwest Air-
lines, Inc. v. Chiong, G.R. No. 155550, January 31, 2008).

4. For instance, in People v. Letigio (268 SCRA 227),


the accused alleged that both prosecution witnesses in certain
aspects of their testimony had "deliberately and wantonly lied"
PRELIMINARY CONSIDERATIONS 11
A. Miscellaneous Basic Principles

in inculpating him, and he contends that the maxim "falsus in


uno, falsus in omnibus" should be applied for his exculpation.
Quoting an earlier pronouncement in People v. Mana-
lansan (189 SCRA 619), the Court stressed:

". . . The maxim falsus in unus, falsus in omnibus


does not lay down a categorical test of credibility. While
the witnesses may differ in their recollections of an inci-
dent, it does not necessarily follow from their disagree-
ments that all of them should be disbelieved as liars and
their testimonies completely discarded as worthless."

In People v. Pacapac (248 SCRA 77), the Court added


that the maxim

". . . is not a positive rule of law or of universal ap-


plication. It should not be applied to portions of the testi-
mony corroborated by other evidence, particularly where
the false portions could be innocent mistakes. Moreover,
the rule is not mandatory but merely sanctions a disre-
gard of the testimony of a witness if the circumstances
so warrant. To completely disregard all the testimony of
a witness on this ground, his testimony must have been
false as to a material point, and the witness must have
a conscious and deliberate intention to falsify a material
point."

Alibi; Frame-up; Self-defense


1. As a defense, a h b i i s m h e r e n t l y weak and crumbles
in the light of positive identification by truthful witnesses. It
is evidence negative in nature and self-serving and cannot at-
tain more credibility than the testimonies of prosecution wit-
nesses who testify on clear and positive evidence (People v.
Larranaga, 463 SCRA 652; People v. Torres, G.R. No. 176262,
September 11, 2007; Bank of the Philippine Islands v. Reyes,
G.R. No. 157177, February 11, 2008; Ingal v. People, G.R. No.
173282, March 4, 2008; Malana v. People, G.R. No. 173612,
March 26, 2008; People v. Ranin, Jr., G.R. No. 173023, June
25, 2008; People v. Dela Cruz, G.R. No. 175929, December 16,
2008).
12 EVIDENCE
(The Bar Lectures Series)

2. For alibi to prosper, it is not enough for the accused


to prove that he was somewhere else when the crime was com-
mitted. He must likewise prove that it was physically impos-
sible for him to be present at the crime scene or its immediate
vicinity at the time of its commission (People v. Coja, G.R. No.
179277, June 18, 2008; People v. Guevarra, G.R. No. 182982,
October 29, 2008; People v. Garte. G.R. No. 176152, November
25, 2008; People v. Erquiza, G.R. No. 171348, November 26,
2008; People v. Guerrero, G.R. No. 170360, March 12, 2009).

Alibi may serve as a basis for acquittal if it can really be


shown by clear and convincing evidence that it was indeed
physically impossible for the accused to be at the scene of the
crime at the time (People v. Cacayan, G.R. No. 180499, July 9,
2008; People v. De Leon, G.R. No. 180762, March 4, 2009).
Alibi cannot prevail over the positive identification of
the accused as perpetrator of the crime. In the face of positive
identification of the accused by the prosecution witness, such
alibi crumbles like a sand fortress (People v. Vargas, G.R. No.
122765, October 13, 2003; People v. Adam, 413 SCRA 293;
People v. Enriquez, 465 SCRA 407). Positive identification de-
stroys the defense of alibi and renders it impotent, especially
where such identification is credible and categorical (People v.
De la Cruz, G.R. No. 173308, June 25, 2008).

3. A case of more recent vintage confirms, thus:

"For the appellant's defense of alibi to prosper, he


should have proven that it was physically impossible for
him to have been at the scene of the crime when it was
committed. By physical impossibility we refer to the dis-
tance and the facility of access between the situs criminis
and the place where he says he was when the crime was
committed. The appellant fails this test as he insisted that
he was at the Yellow Submarine working as a bouncer at
the time of the stabbing incident. By his own admission,
the Yellow Submarine is only 30 to 40 meters from the
Great Taste Bakery. This short distance does not render
it physically impossible for the appellant to have been at
the place where the victim was attacked.
PRELIMINARY CONSIDERATIONS 13
A. Miscellaneous Basic Principles

"Aside from being inherently weak, the appellant's


alibi cannot prevail over the positive identification made
by Alfonso that the appellant was one of the victim's as-
sailants. We particularly note that Alfonso categorically
stated that he stabbed the victim from the front, and note
as well that the victim's two fatal wounds were his chest
wounds. Thus, of the three assailants, it was the appel-
lant himself who delivered the fatal blows on the victim.
"In a long line of cases, this Court has held that posi-
tive identification, made categorically and consistently,
almost always prevails over alibi and denial. These de-
fenses, if not substantiated by clear and convincing evi-
dence, are negative and self-serving and are undeserving
of weight in law.
"We see no reason in this case to deviate from these
established rules." (People v. Nueva, G.R. No. 173248, No-
vember 3, 2008)

4. For the defense of alibi to prosper, the following


must be established:
( a ) The_pre&ejrice_pf t.he_AQCuaeii.inanQther place at
the time of the jjommissioii of the offense^and
( b ) T h e physical impossibility for him to be at the
scene of the^rirne^Tt}ie; t h ^ e p f its cornmission (People v.
Larranaga, 463 SCRA 652; People v. Enriquez, 465 SCRA
407; People v. Tumulak, G.R. No. 177299, November 28,
2007; People v. Santos, G.R. No. 176735, June 26, 2008).
It is not enough for the accused to prove that he was
somewhere else when the crime was committed. He must
likewise prove that it was physically impossible for him
to be present at the crime scene or its immediate vicinity
at the time of its commission (People v. Guevarra, G.R.
No. 182982, October 29, 2008). Where there is even the
least chance for the accused to be present at the crime
scene, the defense of alibi will not hold water (People v.
Castro, G.R. No. 172874, December 17, 2008).
(c) In the case of People v. Larranaga (supra), the
Supreme Court gave no credence to the alibi that the
14 EVIDENCE
(The Bar Lectures Series)

accused Larranaga, was in Quezon City on the date and


time the alleged crime was committed because it was not
impossible for him to be in Cebu on said date and time.
The Court ratiocinated, thus:
"During the hearing, it was shown that it takes
only one (1) hour to travel by plane from Manila to
Cebu and that there are four (4) airline companies
plying the route. One of the defense witnesses ad-
mitted that there are several nights from Manila to
Cebu each morning, afternoon and evening . . ."

(d) In a later case, the Supreme Court observed


that the accused should have proven that he was in some
place where it was physically impossible for him to be at
the locus criminis during the commission of the crime.
His contention that he was in his neighbor's house dur-
ing the alleged commission of the rape does not satisfy
such physical impossibility (People v. Abellera, G.R. No.
166617, July 3, 2007).

( e ) Alibi was not likewise recognized as a defense


in a case where the accused-appellant claimed that he
was in a place seven ( 7 ) kilometers away from the locus
criminis. The Court noted that it was not impossible for
him to traverse this distance (People v. Garcia, G.R. No.
172966, February 8, 2007).
Similarly it was declared that when the distance be-
tween the place where the crime was committed and the
place where the accused said he was is only one and a half
kilometers, the accused, who at the time had the use of
a motorized vehicle, has not established the physical im-
possibility required (People v. Agustin, G.R. No. 175325,
February 27, 2008).
5. While the defense of alibi is by nature a weak one, it
assumes significance and strength where the evidence for the
prosecution is also intrinsically weak (People v. Canlas, 372
SCRA 401).

6. Alibi is not always false and without merit (People v.


Cacayan, G.R. No. 180499, July 9, 2008). Contrary to the com-
PRELIMINARY CONSIDERATIONS 15
A. Miscellaneous Basic Principles

mon notion, alibi is not always a weak defense. Sometimes,


the fact that the accused was somewhere else may just be the
plain and unvarnished truth. But to be exonerating, the de-
fense of alibi must be so airtight that it would admit of no ex-
ception. It must be demonstrated that the person charged with
the crime was not only somewhere else when the offense was
committed, but was so far away that it would have been physi-
cally impossible to have been at the place of the crime or its
immediate vicinity at the time of its commission. T h e reason
is that no person can be in two places at the same time (People
v. Baro, 383 SCRA 75; People v. Ubina, G.R. No. 176349, July
10, 2007).

7. L i k e alibi, the defense of frame up is viewed with


disfavor as it can easily be concocted and is commonly used as
a defense in most prosecutions arising from the violations of
the Dangerous Drugs Act. T h e legal presumption that official
duty has been regularly performed exists (People v. Lee Hoi
Ming, 412 SCRA 550; People v. Barita, 325 SCRA 22). It is
generally v i e w e d with caution by the court because it is easy
to contrive and difficult to disprove. For this claim to pros-
per, the defense must adduce clear and convincing evidence to
overcome the presumption that government officials have per-
formed their duties in a regular and proper manner (People v.
Del Monte, G.R. No. 179940, April 23, 2008).

In assessing the defense of frame-up, the court need also


to consider the evidence of the prosecution.
It has been held that . . The rule requiring a claim of
frame-up to be supported by clear and convincing evidence
was never intended to shift to the accused the burden of proof
in a criminal case." The claim of frame-up assumes impor-
tance when faced with the rather shaky nature of the prosecu-
tion evidence (Agustin v. People, G.R. No. 158788, April 30,
2008).
8. Self-defense, like alibi is inherently weak because it
can be easily fabricated (Rugas v. People, 419 SCRA 399).
EVIDENCE
16
(The Bar Lectures Series)

Bar 1994
Al was accused of raping Lourdes. Only Lourdes
testified on how the crime was perpetrated. On the other
hand, the defense presented Al's wife, son, and daughter
to testify that Al was with them when the alleged crime
took place. The prosecution interposed timely objection to
the testimonies on the ground of obvious bias due to the
witness close relationship with the accused.
If you were the judge:
(1) X X X

(2) Will the fact that the version of the defense


is corroborated by three witnesses suffice to acquit Al?
Why?

Suggested answer:
(1) xxx
(2) The corroboration of the version of the defense
by three witnesses is not sufficient for acquittal. Alibi is
one of the weakest defenses due to its being capable of
easy fabrication. It cannot prevail over the positive iden-
tification of the accused as perpetrator of the crime. For
an alibi to prevail, the defense must establish by positive,
clear and satisfactory proof that it was physically impos-
sible for the accused to have been at the scene of the crime
at the time of its commission, and not merely that the
accused was somewhere else. In the face of positive iden-
tification of the accused by the prosecution witness, such
alibi crumbles like a sand fortress (People v. Vargas, G.R.
No. 122765, October 13, 2003; People v. Adam, 413 SCRA
293).

Delay and Initial Reluctance in Reporting a Crime


1. Delayed reporting by witnesses of what they know
about a crime does not render their testimonies false or incred-
ible, for the delay may be explained by the natural reticence of
most people and their abhorrence to get involved in a criminal
case. But more than this, there is always the inherent fear of
reprisal, which is quite understandable, especially if the ac-
PRELIMINARY CONSIDERATIONS 17
A. Miscellaneous Basic Principles

cused is a man of power and influence in the community. The


natural reluctance of a witness to get involved in a criminal
case, as well as to g i v e information to the authorities is a mat-
ter of judicial notice (People v. Navarro, 297 SCRA 331).
2. Different people react differently to a given stimulus
or type of situation, and there is no standard form of behavior-
al response when one is confronted with a strange, startling
or frightful experience. A witness' delay in reporting what he
knew about a crime does not render his testimony false or
incredible, for the delay may be explained by the natural reti-
cence of most people to get involved in a criminal case (People
v. Manalad, 387 SCRA 263).

Delay in reporting an incident of rape for instance, is not


necessarily an indication that the charge is fabricated; it is
entirely possible for a rape victim to go through what psy-
chologists describe as a "state of denial" which is a way of cop-
ing with the overwhelming emotional stress of an extremely
shocking event (People v. Maglente, G.R. No. 179712, June
27, 2008; People v. Mahinay, G.R. No. 179190, January 20,
2009).
It is also not uncommon that a rape victim will conceal
for some time the assault against her person on account of
fear of the threats posed by her assailant (People v. Domin-
go, G.R. No. 177136, June 30, 2008) and must not be taken
against the victim because the effect of fear and intimidation
instilled in the victim's mind cannot be measured against any
given hard-and-fast rule such that it is viewed in the context
of the victim's perception and judgment not only at the time of
the commission of the crime but also at the time immediately
thereafter (People v. Lantano, G.R. No. 176734, January 28,
2008). A rape victim is sometimes overwhelmed by fear rather
than by reason (People v. Montesa, G.R. No. 181899, Novem-
ber 27, 2008).
3. In Ingal v. People (G.R. No. 173282, March 4, 2008),
a murder case, accused-petitioner faults the witness for hav-
ing waited for the apprehension of the assailant after more
than seven years from the commission of the crime to divulge
18 EVIDENCE
(The Bar Lectures Series)

to the policemen the alleged crime by signing a written state-


ment. The accused argues that if the witness truly witnessed
the crime, the fact that she revealed what she saw only after
seven years was contrary to ordinary human experience and
conduct, thereby rendering her testimony unworthy of cre-
dence.
The Court found that the witness did not immediately
give to the police a signed written statement under oath be-
cause she was fearful that "something bad might happen to
her" because the suspect was still at large. She explained to
the authorities that she would only give her written state-
ment when the suspect was apprehended, because the crime
was a grave offense. True to her word, once the accused was
arrested she executed a statement under oath.
The Court categorically declared that the witness can-
not be faulted for doing what she did. Fear of reprisal and
the natural reluctance of a witness to get involved in a crim-
inal case are sufficient explanations for a witness' delay in
reporting a crime to the authorities. Initial reluctance to vol-
unteer information regarding a crime due to fear of reprisal
is common enough that it has been judicially declared as not
affecting a witness' credibility. T h e reluctance of the witness
to right away submit a written statement to the police was
natural and within the bounds of expected human behavior.
Her action revealed a spontaneous and natural reaction of a
person who had yet to fully comprehend a shocking and trau-
matic event. Besides, the Court added, the workings of the hu-
man mind are unpredictable. People react differently to emo-
tional stress. There is simply no standard form of behavioral
response that can be expected from anyone when confronted
with a strange, startling or frightful occurrence. In her case,
the witness said she was shocked and lost her composure be-
cause that was the first time she saw someone being killed in
front of her.

4. The celebrated double murder and frustrated murder


cases of People v. Teehankee, Jr. (249 SCRA 54) illustrate the
willingness of the Court to take judicial notice of the natural
reticence of witnesses to get involved in the solution of crimes.
PRELIMINARY CONSIDERATIONS 19
A. Miscellaneous Basic Principles

T h e witness who actually saw the shooting of the victims by


the accused and had a clear and positive identification of the
plate number of the assailant's car, denied having witnessed
the crime during the investigation by the police and the N B I .
He refused to volunteer information to anyone as to what he
supposedly witnessed. It was only after consistent prodding
and assurance of protection from N B I officials that he agreed
to cooperate with the authorities. T h e Court recognized that
the initial reluctance of the fear-gripped witness to reveal to
the authorities what he supposedly witnessed was sufficiently
explained during the trial. His fear was not imaginary. He
saw with his own eyes the senseless violence perpetrated by
the accused. He knew that the accused belonged to an influen-
tial family. In his own words, he testified that his reluctance
was due to his fear for his and his family's safety.

5. People v. Sanidad (402 SCRA 381), is also illustra-


tive. H e r e , the complaining witnesses were victims and sur-
vivors of an ambush allegedly perpetrated by the accused but
they reported the incident to the authorities only after several
weeks. T h e delay was put in issue by all the accused as part
of their defense. T h e Court stressed that delay in reporting
a crime to the authorities is not an uncommon phenomenon.
The rule is that delay by a witness in divulging what he or
she knows about a crime is not by itself a setback to the evi-
dentiary value of such witness' testimony, where the delay
is sufficiently justified by any acceptable explanation. Thus,
a well-founded fear of reprisal or the individual manner by
which individuals react when confronted by a gruesome event
as to place the viewer in a state of shock for sometime, is a
valid excuse for the temporary silence of witnesses. The Court
adopted the argument of the Solicitor General, as follows:

. . the victims in the instant case were survivors


of an extremely violent incident which inflicts severe con-
comitant psychological stress on them. Considering also
that the survivors were being investigated by the police
from another municipality where the perpetrators not
only reside but one of them was even a member of the
CAFGU, it is a natural reaction for the victims not to re-
20 EVIDENCE
(The Bar Lectures Series)

veal that they know the identities of the perpetrators and


induce them to take action to prevent the victims from
testifying x x x x Furthermore, Marlon Tugadi insisted
to the police during the investigation that he knew who
ambushed them but that he would talk only after his
brother's interment. This hardly qualifies as an unusual
behavior."

6. People v. Ortoa (G.R. No. 176266, August 8, 2007),


exemplifies another case in which the court recognized a justi-
fication by a victim for a delay in reporting a crime committed
by her father against her. Anent the claim that the truthful-
ness of the accusation is affected by the victim's failure to re-
port the purported previous incidents of rape, the Court ruled
against the accused-appellant. Here, the Court had another
occasion to declare that there is no uniform behavior that can
be expected from those who had the misfortune of being sexu-
ally molested. Accordingly, some may have found the cour-
age early on to reveal the abuse they experienced; there are
those who have opted to initially keep the harrowing ordeal to
themselves and tried to move on with their lives. In a crimi-
nal action for rape for instance, a rape victim's actions are
oftentimes overwhelmed by fear rather than by reason. It is
this fear, springing from the initial rape, that the perpetra-
tor hopes to build a climate of extreme psychological terror,
which would, he hopes, numb his victim into silence and sub-
missiveness. Incestuous rape magnifies this terror, because
the perpetrator is a person normally expected to give solace
and protection to the victim. Furthermore, in incest, access to
the victim is guaranteed by the blood relationship, proximity
magnifying the sense of helplessness and the degree of fear.

In this case, the Court found that the delay was suffi-
ciently explained by the victim. T h e Court likewise found that
when the victim was still a young child and already subjected
to the revolting behavior of the accused, the latter threatened
her with physical harm should she divulge his misdeeds to
anyone else. W h e n she became pregnant, the accused resorted
to emotional blackmail by telling her that he would be impris-
PRELIMINARY CONSIDERATIONS 21
A. Miscellaneous Basic Principles

oned should she tell anyone about what he had been doing
to her. A n d when the wife of the accused wanted the latter
to move out of their house because of his appalling conduct,
the accused had the audacity to confront the victim and her
mother with the fact that he was the sole breadwinner of their
family. It is therefore clear, according to the Court, that the
accused used every scheme he could think of to dissuade the
family from going to the proper authorities. But more than
the appellant's actuations, the victim in her own words testi-
fied that she was discouraged by the public ridicule that she
expected to come her way. In her words:

"Nalaman na noon ng aking Mama ang ginagawa


ng aking Papa sa akin at tinanong ako kung anong gusto
kong mangyari, ang sabi ko ayoko pa dahil hindi ko pa
kaya na humarap sa ibang tao."

7. In People v. Satioquia (414 SCRA 60), the victim of


rape by her stepfather was the chairperson of the Sangguni-
ang Kabataan in their area. She claimed in her sworn com-
plaint in August 1994, that her stepfather had been raping
her since 1992, but she failed to report any of the incidents to
the police authorities because of the constant threats by the
accused. T h e accused in his defense averred that the victim's
testimony is incredible and is barren of probative weight for
her having failed to report to the police authorities that the
accused had raped her as early as M a y 1992. The accused ar-
gued that she could have accordingly easily reported the inci-
dent to the police authorities considering that she was a Sang-
guniang Kabataan chairperson.

In affirming the conviction, the Court gave no merit to the


argument of the accused. It held that delay or vacillation by
the victims in reporting sexual assaults on them does not nec-
essarily impair their credibility if such delay is satisfactorily
explained. Fear of reprisal or social humiliation are sufficient
explanations. Moreover, Filipinas, especially those in the ru-
ral areas, are by nature shy and coy, and rape stigmatizes
the victim, not the perpetrator. A victim of rape cannot be
expected to have the courage to immediately report a sexual
22 EVIDENCE
(The Bar Lectures Series)

assault committed against her especially when accompanied


by a death threat. Delay is not a sign of fabrication. It is not
uncommon for a young girl at the tender age to be intimidated
and cowed into silence and conceal, for some time, the viola-
tion of her honor, even by the mildest threat against her life.
The Court further explained that the credibility of the
victim and her testimony cannot be discredited merely be-
cause she failed to immediately divulge to her mother, to her
brother and to the police authorities the bestial acts of the ac-
cused. It bears stressing that when the appellant first raped
her, she was barely fifteen years old.

Positive and Negative Defenses


1. In Philippine jurisprudence, a positive testimony
normally enjoys more weight than a negative testimony. In
short, a testimony that a fact exists enjoys more weight than
a testimony that asserts that the same fact does not exist. A
denial evidence is merely a negative evidence.
2. Positive evidence is, as a general rule, more credible
than negative evidence. However, the reason for this rule is
that the witness who testifies to a negative may have forgot-
ten what actually occurred, while it is impossible to remem-
ber what never existed (Gomez v. Gomez-Samson, G.R. No.
156284, February 6, 2007).

3. A denial evidence is the weakest defense and can nev-


er overcome a positive testimony particularly when it comes
from the mouth of a credible witness (People v. Mendoza, 450
SCRA 328). Evidence that is negative is self-serving in na-
ture and cannot attain more credibility than the testimonies
of witnesses who testify on clear and positive evidence (People
v. Larranaga, supra). Denial, like alibi is an inherently weak
defense vis-a-vis positive identification (People v. Guambor,
420 SCRA 677; People v. Guevarra, G.R. No. 182192, October
29, 2008; People v. Montesa, G.R. No. 181899, November 27,
2008).
PRELIMINARY CONSIDERATIONS 23
A. Miscellaneous Basic Principles

Factum Probans and Factum Probandum

1. Evidence signifies a relationship between two facts,


namely:
ultimate fact
( a ) the fact or proposition to be established (factum
probandum); and

( b ) the facts or material evidencing the fact or


proposition to be established (factum probans) (Wigmore,
Principles of Judicial Proof, 5). evidentiary fact

2. Stated in another way, the factum probandum is the


fact to be proved; the fact which is in issue and to which the
evidence is directed. On the other hand, factumjprobans is the
probative or evidentiary fart tending to prove the fact in issue
(Black's Law Dictionary, 5th Ed., 533).

Thus, if P claims to have been injured by the negligence


of D who denies having been negligent, the negligence of D
and the causal connection between such negligence, and the
injuries of P taken as a whole, constitute the factum proban-
dum of the suit. T h e evidence offered by P, whether it be ob-
ject, documentary or testimonial, constitute the materials to
prove the liability of D. T h e totality of the evidence to prove
the liability refers to the factum probans.

3. T h e factum probandum in a certain case may be af-


fected by the judicial admissions of a party. For instance, if
the defendant in a suit based on a culpa aquiliana theory ad-
mits his negligence in his answer to the complaint, there is no
more need to prove negligence. Hence, negligence ceases to be
a factum probandum in the case.
If the factum probandum "signifies the fact or proposition
to be established," then matters of judicial notice, conclusive
presumptions and judicial admissions cannot qualify as parts
of the factum probandum of a particular case, because such
matters need not be established or proven.
4. In practical terms, the factum probandum in a civil
case refers to the elements of a cause of action from the point
24 EVIDENCE
(The Bar Lectures Series)

of view of the plaintiff and the elements of the defense from


the standpoint of the defendant.
In a suit for instance, for collection of a sum of money,
in the absence of any admission by the defendant, the factum
probandum of the plaintiff would be:
(i) the existence of the debt of the defendant;
( i i ) the maturity of the debt;
( i i i ) the demand made by the plaintiff upon the de-
fendant to pay; and
( i v ) the failure to pay despite the demand.
From the side of the defendant, the fact of payment of
the obligation or the prescription of the debt or the elements
of any defense he may interpose would constitute the factum
probandum.
In every tort case filed under A r t . 2176 of the Civil Code,
plaintiff has to prove ( a ) the damages suffered by the plain-
tiff; ( b ) the fault or negligence of the defendant or some other
person for whose act he must respond; and (c) the connection
of cause and effect between the fault or negligence and the
damages incurred (Corinthian Gardens Association, Inc. v.
Tanjangco, G.R. No. 160795, June 27, 2008).

5. In a criminal case, the factum probandum includes


all matters that the prosecution must prove beyond reason-
able doubt in order to justify a conviction.

( a ) Thus, in a prosecution for robbery, the prosecu-


tion has the burden to prove the following matters be-
yond reasonable doubt:

( i ) that there be personal property belonging


to another;
( i i ) that there is unlawful taking of that prop-
erty;
( i i i ) that the taking is with intent to gain; and
( i v ) that there is violence against or intimida-
tion of persons or force upon things (Art. 293, Re-
PRELIMINARY CONSIDERATIONS 25
A. Miscellaneous Basic Principles

vised Penal Code; People v. Sandoval, 254 SCRA


436).

( b ) To convict an accused for illegal possession of


firearms and explosives, the factum probandum would be
the two ( 2 ) essential elements which must be indubitably
established, viz:

( i ) the existence of the subject firearm or ex-


plosive which may be proved by the presentation of
the subject firearm or explosive or by the testimony
of witnesses who saw accused in possession of the
same, and;

( i i ) the negative fact that the accused had no


license or permit to own or possess the firearm or
explosive which fact may be established by the testi-
mony or certification of a representative of the P N P
Firearms and Explosives U n i t that the accused has
no license or permit to possess the subject firearm or
explosive.
E v e n if the firearm or explosive is presented in
court, the failure of the prosecution to prove the absence
of a permit to own or possess the firearm or explosive is
fatal to its cause. T h e essence of the crime penalized is
primarily the lack of license or permit to carry or possess
the firearm, ammunition or explosive as possession by it-
self is not prohibited by law (People v. Cortez, 324 SCRA
335).
(c) In a prosecution for illegal sale of prohibited or
dangerous drugs, what determines if there was a sale of
dangerous drugs is proof of the concurrence of all the ele-
ments of the offense. Conviction is proper if the following
elements concur:
( i ) the identity of the buyer and the seller, the
object, and the consideration; and
( i i ) the delivery of the thing sold and the pay-
ment therefor (People v. Rivera, G.R. No. 182347,
October 17,2008).
26 EVIDENCE
(The Bar Lectures Series)
animus possidendi - The intent to possess a thing.
What is material to the prosecution for the sale of illegal
drugs is the proof that the sale actually took place, coupled
with the presentation in court of evidence of corpus delicti
(People v. Del Monte, G.R. No. 179940, April 23, 2008).
In criminal cases involving prohibited drugs, there can be
no conviction unless the prosecution shows that the accused
knowingly possessed the prohibited articles in his person, or
that animus possidendi is shown to be present together with
his possession or control of such article; animus possidendi is
only prima facie it is subject to contrary proof and may be
rebutted by evidence that the accused did not in fact exercise
power and control over the thing in question, and did not in-
tend to do so (People v. Penaflorida, Jr., ibid.).

The presentation of the informant in illegal drug cases


is not indispensable for a successful prosecution because his
testimony would merely be corroborative and cumulative. In-
formants are generally not presented in court because of the
need to hide their identity and preserve their invaluable ser-
vice to the police (Ibid.). res gestae - n. pl. [Latin "things
done"] The events at issue, or other
events contemporaneous with them.
Multiple Admissibility
1. There are times when a proffered e v i d e n c e i s ad-
missible for two or more purposes. Thus, depending upon the
circumstances, the declaration of a dying person may be ad-
missible for several purposes. It may be offered as a dying
declaration (Sec. 37, Rule 130, Rules of Court), as part of the
res gestae (Sec. 42, Rule 130, Rules of Court) or as a declara-
tion against interest (Sec. 38, Rule 130, Rules of Court). T h e
statement by a bus driver immediately after the collision that
he dozed off in the wheel while driving may be admissible as
an admission under Sec. 26 of Rule 130 or as part of the res
gestae pursuant to Sec. 42 of Rule 130.

2. Sometimes it is inadmissible for one purpose but ad-


missible for another or vice versa. For instance, evidence of a
person's bad general reputation for truth, honesty, or integrity
is objectionable if offered to prove that he committed the crime
PRELIMINARY CONSIDERATIONS 27
A. Miscellaneous Basic Principles

charged but it may be admissible to impeach the credibility of


a witness under the authority of Sec. 11 of Rule 132.

3. Evidence may also be admissible against one party


but not against another. An extrajudicial statement of a rob-
bery suspect is not admissible against his co-accused under
the res inter alios acta rule but may be admissible against the
declarant himself as an admission pursuant to Sec. 26 of Rule
130.

T h e various situations abovementioned illustrate the


concept of multiple admissibility.

4. If testimony is offered to prove that the project was


completed pursuant to the contract, it cannot be offered to
prove that the project was delayed. It must be remembered
that the purpose for which evidence is offered must be speci-
fied because such evidence may be admissible for several pur-
poses under the doctrine of multiple admissibility, or may be
admissible for one purpose and not for another, otherwise the
adverse party cannot interpose the proper objection (Uniwide
Sales Realty and Resources Corporation v. Titan-Ikeda Con-
struction and Development Corporation, G.R. No. 126619, De-
cember 20, 2006).

B a r 2005
(a) xxx
(b) xxx
Sic) May a private document be offered and admit-
ted in evidence both as documentary evidence and as ob-
ject evidence?
(d) xxx
(e) xxx

Suggested answer:
(a) xxx
(b) xxx
EVIDENCE
(The Bar Lectures Series)

(c) A private document may be offered and ad-


mitted in evidence both as documentary evidence and
as object evidence depending on the purpose for which
the document is offered. If offered to prove its existence,
condition or for any purpose other than the contents of a
document, the same is considered as an'^bject^gvidence.
When the private document is offered as proof of its con-
tents, the same is considered as a 3ocumentary>vidence
(Sec. 2, Rule 130, Rules of Court). ^
(a) xxx
(b) xxx

Bar 1991

Two (2) hours after Lt. Yap of the 2nd Air Division,
PAF, at the Mactan Air Base in Lapu-Lapu City, was shot
with a .45 caliber pistol, his Division commander, Brig.
Gen. A, visited him at the Cebu Doctor's Hospital in Cebu
City where he was immediately brought before treatment
of the gunshot wound. Lt. Yap told A that it was Jose Co-
men who shot him. Forthwith, A, who is a law graduate,
took the initiative of taking down in long hand the state-
ment of Lt. Yap. The latter narrated the events surround-
ing and categorically stated that it was Jose Comen who
shot him. Lt. Yap signed the statement in the presence of
A and the attending nurse. Ten (10) days later, Lt. Yap
died as a consequence of the gunshot wound. An informa-
tion for murder was filed against Jose Comen.
At the trial, the above statement of Lt. Yap marked
as Exh. "X" was presented and identified by A who did not,
however, testify that Lt. Yap read it, or that it was read
to him before he (Yap) signed it. A, nevertheless, testified
that it was Jose Comen who shot him. The defense ob-
jected to the testimony of A and to the admission of Exh.
"X" on the ground that they are hearsay. The prosecution
contended that both are exceptions to the hearsay rule as
they are part of res gestae.
(a) Is the prosecution correct?
(b) If the statement cannot be admitted as part of
the res gestae, may it be considered as a dying declara-
tion?
PRELIMINARY CONSIDERATIONS 29
A. Miscellaneous Basic Principles

Suggested answers:
(a) The prosecution is not correct. The statement
of Lt. Yap is not part of the res gestae. To be part of the res
gestae, the statement should have been made by a person
while a startling occurrence is taking place or immedi-
ately prior to or subsequent to such startling occurrence
(Sec. 42, Rule 130, Rules of Court). The statement of Lt.
Yap was made two (2) hours after he was allegedly shot,
not neither while he was being shot nor immediately prior
to or immediately after being shot.

(b) The statement cannot be admitted as a dying


declaration. To be admissible as a dying declaration, the
statement should have been made while the declarant
was conscious of an impending death. The facts of the
case do not clearly show that this essential element of a
dying declaration was met.

B a r 1984

When A was stabbed on the chest during a street


brawl, he instinctively shouted for help. B, who was near-
by, heard the shout and immediately ran towards A who,
upon inquiry by B, stated that C had stabbed him.
If A should die on account of the stab wound, upon
what rule or rules of evidence could B's testimony be re-
ceived? Explain.

Suggested answer:
The testimony could be admitted either as a dying
declaration or as part of the res gestae.
Assuming that A was under the consciousness of
an impending death when he stated that C had stabbed
him, the declaration may be admitted as a dying declara-
tion pursuant to Sec. 37 of Rule 130. If the statement was
made without such consciousness, it could be admissible
as part of the res gestae under Sec. 42 of Rule 130, since
the same was made immediately after a startling event,
i.e. the stabbing.
30 EVIDENCE
(The Bar Lectures Series)

Conditional Admissibility
It happens frequently enough that the relevance of a
piece of evidence is not apparent at the time it is offered, but
the relevance of which will readily be seen when connected to
o^her pieces of evidence not yet offered. The proponent of the
evidence may ask that the evidence be conditionally admit-
ted in the meantime subject to the condition that he is going
to establish its relevancy and competency at a later time. If
the connection is not shown as promised, the court may, upon
motion of the adverse party, strike out from the record the
evidence that was previously conditionally admitted.
For instance, M r . P files an action for recovery of owner-
ship of a parcel of land against M r . D. The complaint alleges
that Mr. P is the owner of the property. During the trial, M r .
P testifies and adduces evidence that sometime in 1995, the
property subject of the action was bought by M r . O from a cer-
tain Mr. M. The defendant, M r . D, objects on the ground that
the evidence is irrelevant to support the claim of ownership of
Mr. P. The problem presented in such a situation is whether or
not to interrupt the examination of the witness to first present
the connecting evidence or to admit the testimony condition-
ally, subject to presentation of the said connecting evidence
later in the trial. M r . P may ask the court to conditionally
allow the testimony with the undertaking to show later that
he bought the property from M r . O who in turn bought it from
Mr. M .

Curative Admissibility
1. The doctrine of curative admissibility allows a party
to introduce otherwise inadmissible evidence to answer the op-
posing party's previous introduction of inadmissible evidence if
it would remove any unfair prejudice caused by the admission
of the earlier inadmissible evidence (Adams v. Burlington N.
R.R. Co., 865 S.W.2d 748, 751 [Mo. App. 1993]). Thus, a party
who first introduces either irrelevant or incompetent evidence
into the trial cannot complain of the subsequent admission of
similar evidence from the adverse party relating to the same
PRELIMINARY CONSIDERATIONS 31
A. Miscellaneous Basic Principles

subject matter (Commonwealth v. Alexander, Ky., 5 S.W.3d


104, 105 [1999] quoting Dunaway v. Commonwealth, 239 Ky
166, 39 S.W.2d 242, 243 [1931]; Smith v. Commonwealth, Ky.,
904 S.W.2d 220, 222 [1995]). Conversely, the doctrine should
not be invoked where evidence was properly admitted.

2. For example, in an action for damages arising from a


car accident, the plaintiff, despite objection by the defendant,
introduced evidence to show that on several occasions the
defendant in the past had injured pedestrians because of his
negligence. T h e evidence was offered to prove the defendant's
propensity for negligence. Of course, under the rules, this kind
of evidence is inadmissible because evidence that a person did
a certain thing at one time is not admissible to prove that he
did the same or a similar thing (Sec. 34, Rule 130, Rules of Ev-
idence). If we were to follow the concept of curative admissibil-
ity, the court may be asked to give the party against whom the
evidence was admitted the chance to contradict or explain the
alleged past acts he committed and to show evidence of past
acts of diligence of the defendant to counteract the prejudice
which the improperly admitted evidence may have caused.

Also, if hearsay evidence prejudicial to the defendant is


erroneously admitted despite objection, under the principle
of curative admissibility, the court should allow hearsay evi-
dence favorable to the same defendant.
3. Does the concept of curative admissibility refer to
a situation where incompetent evidence was erroneously re-
ceived by the court despite objection from the other party?
Local case law does not extensively address the matter but
some American cases like Adams v. Burlington N.R.R. Co.
(865 S.W.2d 748, 751[Mo. App. 1993]), hold that the principle
applies where inadmissible evidence was admitted without
objection. It has been held that curative admissibility in its
broadest form, allows a party to introduce otherwise inadmis-
sible evidence when necessary to counter the effect of improp-
er evidence previously admitted by the other party without
objection (Clark v. State, 629 A.2d 1239, 1244-45 [Md. 1993];
See also Wigmore on Evidence, 15 [Rev. Ed. 1983]). Another
EVIDENCE
32
(The Bar Lectures Series)

case also allowed curative evidence even if there was failure


to object to the objectionable evidence (Nguyen v. Southwest
Leasing and Rental, Inc., 282 F3d 1061, 1068 [9th Circuit,
2002]).
It is submitted that in our jurisdiction, the principle of
curative admissibility should not be made to apply where the
evidence was admitted without objection because the failure
to object constitutes a waiver of the inadmissibility of the evi-
dence. In our jurisdiction, inadmissible evidence not objected
to becomes admissible.
For instance, where a party failed to object to hearsay
evidence, then the same is admissible (See SSS Chemicals
Corporation v. Court of Appeals, G.R. No. 128538, February
28, 2001).
An objection to an otherwise inadmissible evidence is not
merely suggested but required by the Rules of Court. T h e tenor
of the rule is clear: Objections to evidence offered orally must
be made immediately after the offer is made and objections to
questions propounded in the course of the oral examination
of the witness shall be made as soon as the grounds therefor
shall become apparent (Sec. 36, Rule 130, Rules of Court).

It is likewise submitted that it is only where the objec-


tion was incorrectly overruled, that the court should allow the
other party to introduce evidence to contradict the evidence
improperly admitted in order to cure the prejudice caused to
the other party against whom the offered evidence was erro-
neously admitted. Common reason suggests that where there
is a waiver, there is no defect to cure.

While a trial court generally has discretion in ruling on


the admissibility of evidence, it is opined that a trial court
should be without discretion to apply the doctrine of curative
admissibility if it appears that the party seeking to invoke it
intentionally or negligently failed to object to the inadmissible
evidence in order to gain admission later of his inadmissible
evidence. If no limitations are placed on the doctrine of cu-
rative admissibility, the doctrine will predictably be open to
abuse and will encourage counsel not to object to inadmissible
PRELIMINARY CONSIDERATIONS 33
A. Miscellaneous Basic Principles

evidence to "open the door" for him to introduce inadmissible


evidence. T h e more logical rule should be one which will not
allow a party to be heard through the offering of inadmissible
evidence if he declines or fails to timely object to the other
party's inadmissible evidence.

One American case puts it: "A breach of the rules of evi-
dence by one party does not suspend those rules with respect
to the other party" (See United States v. Young, 470 U.S. 1
[1985]).

[^Eecland^CinxumstariliaLEyid^nce

1. Direct evidence means evidence which if believed,


proves the existence of a fact in isue_wjthpjitinference or pre-
sumption (State v. Mclure, Mo. App. 504 S.W. 2d 664, 668 as
cited in Black's Law Dictionary, 5th Ed. p.413-414). In short,
direct evidence proves a fact without the need to make an in-
ference from another fact. Thus, the testimony of the prosecu-
tion witness claiming that he personally witnessed the attack
by the accused on the victim without the latter's provocation
is ajdirecJ,..tstirnonial^videne.

2. JCircumstantial evidence is that evidence that indi-


rectly proves a fact in issue through an inference which the
fact finder draws from the evidence established (People v.
Matito, 423 SCRA 617).
3. JCircumstantial or indirect evidence is the exact op-
posite of direct evidence. W h e n the evidence is circumstantial,
a fact is established by making an inference from a previously
established fact. In other words, in this type of evidence, the
court uses a fact from which an assumption is drawn. When
the court does not have to make an inference from one fact to
arrive at a conclusion, the evidence is direct. For instance, the
testimony of the victim that he dreads the mere presence of
the accused is direct evidence that the statement was made.
However, it is also circumstantial evidence to show that this
fear prevented the victim from attacking the accused without
provocation.
34 EVIDENCE
(The Bar Lectures Series)

Conviction by Circumstantial Evidence


1. In a criminal case, circumstantial evidence may be
sufficient for conviction provided the^follQwJLD^eiauisites con-
cur:
(a) There is rnoreJJhajLPnje circumstance;
(b) The facts from which the inferences are derived
are proven; and
(c) The combination of all the circumstances is
such as to produce a conviction, beyond reasonable doubt
(Sec. 4, Rule 133, Rules of Court; People v. Sevilleno, 425
SCRA 247; People v. Garcia, G.R. No. 174479, June 17,
2008).
2. A l l the circumstances proved must be consistent
with each other, and they are to be taken together as proved.
Being consistent with each other, and, taken together, they
must point unerringly to the direction of guilt and mere sus-
picions, probabilities, or suppositions do not warrant a con-
viction (Underhill, Criminal Evidence, 4th Ed., 18; People v.
Pascual, G.R. No. 172326, January 19, 2009).

Bar_199g
A was accused of having raped X. Rule on the admis-
sibility of the following pieces of evidence:
1. xxx
2. A pair of short pant&allegedly left by A at the
cdTne_scene x x x .

Suggested answer:
The evidence may be admissible as a circumstantial
evidence of his liability although not sufficient in itself to
support a conviction.

3. A conviction based on circumstantial evidence must


exclude each and every hypothesis consistent with innocence.
Hence if the totality of the circumstances eliminates beyond
reasonable doubt the possibility of innocence, conviction is
proper (Mallari v. People, 446 SCRA 74).
PRELIMINARY CONSIDERATIONS 35
A. Miscellaneous Basic Principles

Circumstantial evidence may be a basis for conviction


and such conviction can be upheld provided the circumstances
proven constitute an unbroken chain which leads to one fair
and reasonable conclusion that points to the accused to the
exclusion of all others as the guilty person. Direct evidence is
not the only matrix from which the trial court may draw the
conclusions and findings of fact (People v. Bernal, 388 SCRA
211).

4. Circumstantial evidence is not a weaker defense vis-


a-vis direct evidence (People v. Matito, 423 SCRA 617). As to
probative value, the Court considers circumstantial evidence
of a nature identical to direct evidence because no greater de-
gree of certainty is required when the evidence is circumstan-
tial than when it is direct. In both types of evidence what is
required is proof beyond reasonable doubt (People v. Bernal,
388 SCRA 211).

5. Even carnal knowledge may be proven by circum-


stantial evidence. Jurisprudence is replete with cases where
the victim was unconscious and the accused was found guilty
on the basis of circumstantial evidence (People v. Coja, G.R.
No. 179277, June 18, 2008).
6. Direct evidence is not indispensable to prove a crime
charged. It may be proved by circumstantial evidence (People
v. Darilay, 421 SCRA 45).
Direct evidence of the commission of a crime is not the
only basis on which a court draws its findings of guilt. Es-
tablished facts that form a chain of circumstances can lead
the mind intuitively or impel a conscious process of reasoning
towards a conviction (Bastian v. Court of Appeals, G.R. No.
160811, April 18, 2008).
In the absence of direct evidence, the prosecution may re-
sort to adducing circumstantial evidence. Crimes are usually
committed in secret and under conditions where concealment
is highly probable. If direct evidence is insisted on under all
circumstances, the prosecution of vicious felons who commit
heinous crimes in secret or secluded places will be impossible
to prove (People v. Sevilleno, 425 SCRA 247).
36 EVIDENCE
(The Bar Lectures Series)

7. When the prosecution's evidence rests on circum-


stantial evidence alone, it is imperative that the chain of cir-
cumstances establish the guilt of the accused beyond reason-
able doubt. This means that the circumstances would allow
no other conclusion other than the guilt of the accused. If from
the same set of facts relied upon by the prosecution to show
the guilt of the accused, an opposing inference consistent with
the innocence of the accused can be drawn, the evidence would
be inconsistent with guilt. Thus, the Supreme Court in People
v. Corpuz, held that where the evidence admits of two inter-
pretations one of which is consistent with guilt and the other
with innocence, the accused must be acquitted (People v. Cor-
puz, 412 SCRA 479).

8. One caseYAmora v. People (G.R. No. 154466, Janu-


ary 28, 2008), demonstrates the application of the rule on cir-
cumstantial evidence.
The petitioner was adjudged guilty of the crime of De-
structive Arson defined and penalized under Presidential De-
cree ( P . D . ) N o . 1613. T h e records of the case show that the
petitioner owned a building constructed in a rented lot un-
der a twenty-year contract. T h e contract provided that upon
the expiration of the lease, ownership of the building shall be
transferred to the lessor. Six months before the expiration of
the lease, petitioner was notified by the lessor that the lease
would no longer be renewed. A few days after the notice, peti-
tioner secured a fire insurance from two insurers each with a
coverage that was substantially higher than the market value
of the building. Less than a month before the expiration of
the lease contract, a fire broke out in the building which was
also used by petitioner as residence and as a bakery. T h e fire
also gutted nearby houses. Evidence offered in the trial indi-
cated that during the actual fire, petitioner was within the
premises. Calls and shouts from his neighbors of a fire in his
building went initially unheeded by the petitioner. It was only
later on that he finally did look to check what was going on.
The authorities who conducted an investigation submitted an
investigation report which concluded that the fire was inten-
PRELIMINARY CONSIDERATIONS 37
A. Miscellaneous Basic Principles

tionally caused and which pointed to the petitioner as the pos-


sible perpetrator.

T h e Regional T r i a l Court, later affirmed by the Court of


Appeals, relied on the following circumstances as adequate
proof of petitioner's guilt:

"First, there is motive on the part of [petitioner] to


commit arson, as the contract of lease over the building
would soon be terminated by owner . . . against his will.
"Second, [petitioner] insured the property despite
the fact that the lease would soon be terminated and in
fact, he had already been advised to vacate the place.
"Third, the amount covering the fire insurance
was substantially more than its market and assessed
value. . . .
"Fourth, [petitioner] was seen in his residence im-
mediately before the fire and subsequently in a neighbor's
shop during the fire.
"Fifth, the Fire Investigators concluded in their re-
port that the fire was intentionally done. In the absence of
any showing that these investigators were ill-motivated
in testifying against [petitioner], their testimonies are
given weight and credit. . ."

Aggrieved, petitioner filed a Petition for Review on Cer-


tiorari under Rule 45 of the Rules of Court, raising the sole
question of whether the guilt was proven beyond reasonable
doubt because of the absence of direct evidence to prove his
culpability.
Sustaining the applicability of P . D . 613 to the case, as
well as the presumption of arson under Sec. 6 of the Decree
against the petitioner, and meeting head on the contention
that an accused could not be convicted in the absence of direct
evidence of guilt, the Supreme Court ruled:

"At the outset, it may be well to emphasize that di-


rect evidence is not the sole means of establishing guilt
beyond reasonable doubt. Established facts that form a
38 EVIDENCE
(The Bar Lectures Series)

chain of circumstances can lead the mind intuitively or


impel a conscious process of reasoning towards a convic-
tion. Indeed, rules on evidence and principles in jurispru-
dence have long recognized that the accused may be con-
victed through circumstantial evidence.
"Circumstantial evidence has been denned as such
evidence which goes to prove a fact or series of facts, oth-
er than the facts in issue, which, if proved, may tend by
inference to establish the fact in issue. Circumstantial
evidence may be resorted to when to insist on direct tes-
timony would ultimately lead to setting felons free. But
for circumstantial evidence to be sufficient for a convic-
tion, the following requisites must be present, namely: (a)
there is more than one circumstance; (b) the facts from
which the inferences are derived have been proven; and
(c) the combination of all the circumstances results in a
moral certainty that the accused, to the exclusion of all
others, is the one who has committed the crime.
"These requisites obtain in the instant case. The trial
court found that the circumstances enumerated above suf-
ficiently point to the petitioner as the author of the crime.
Indeed, all these circumstances, taken together, are con-
sistent with the hypothesis that petitioner is guilty, and
at the same time inconsistent with the hypothesis that he
is innocent.
"We find no cogent reason to disturb the findings of
the trial court as affirmed by the appellate court. Case law
states that findings of facts of the trial court, especially if
affirmed by the appellate court, are given great respect, if
not conclusive effect, by this Court unless the trial court
ignored, misunderstood or misinterpreted facts and cir-
cumstances of substance which, if considered, would al-
ter the outcome of the case. Having had the unique ad-
vantage of observing and monitoring at close range the
demeanor and conduct of witnesses, the trial court is in
a better position to pass judgment on the credibility of
witnesses and the probative weight of their testimonies"
(Amora v. People, G.R. No. 154466, January 28, 2008).

^9- People v. Ochate (385 SCRA 353) on the other hand,


illustrates tKe refusal of the Court to appreciate circumstan-
PRELIMINARY CONSIDERATIONS 39
A. Miscellaneous Basic Principles

tial evidence. R e v i e w e d by the Supreme Court in this case is


the decision of the Regional Trial Court finding the accused
guilty beyond reasonable doubt of rape with homicide.

T h e facts of the case as gleaned from the records indicate


that one afternoon at around 5:15, the victim and her older
brother were walking together on their w a y home from school.
On the way, the victim stopped and went to the communal
water pump to wash her food container and her slippers while
her brother proceeded to go home ahead of her sister. On his
way home, he passed by the hut of the accused where he saw
the latter in the yard tucking a scythe on his waist. W h e n the
victim did not arrive home after a few hours, a search was
conducted the whole evening to no avail. It was only around
eight o'clock the following morning that the victim was found
dead in a rice field about fifty meters from the house of the
accused. T h e medico-legal officer who later examined the ca-
daver reported that the cause of death was hemorrhagic shock
due to deep and penetrating incised wounds in the neck and
abdomen. Suspecting that the accused was the culprit, police
officers, as well as other members of the barangay, went to
see him at his house but they were not able to find him. It was
only after two days from the discovery of the crime that the
accused was located and taken into custody.

Prosecution evidence established the following circum-


stances: ( 1 ) in the afternoon of the date when the victim was
last seen alive by her brother, the accused was seen near his
house located along the road where the victim and her el-
der brother passed on their way home; ( 2 ) the road passing
through the house of the accused is the only path coming from
the school going to the house of the victim's family; (3) appel-
lant was the only person seen by the brother on his way home;
(4) appellant, who was alone at that time, appeared to the
brother as if he was waiting for somebody; (5) upon waking
up in the morning and noticing that people in their barangay
were gathering and looking for somebody, appellant did not
bother to inquire about the reason for such activity; (6) he did
not participate in the search for the missing girl; (7) the vic-
tim's cadaver was found about 50 meters from appellant's hut;
40 EVIDENCE
(The Bar Lectures Series)

(8) when he was informed by his wife that the victim's cadaver
was found near their house, he showed no surprise and he did
nothing; and (9) on two occasions, when he was informed by
the police that someone was killed in their barangay and that
he is a suspect in the killing, he did not bother to ask who the
victim was.
The Supreme Court agreed with accused that the trial
court erred in convicting him based on circumstantial evi-
dence. Declared by the Court:

"The requisites to sustain a conviction of an accused


based on circumstantial evidence are: (1) there must
be more than one circumstance; (2) the inference must
be based on proven facts; and (3) the combination of all
circumstances produces a conviction beyond reasonable
doubt of the guilt of the accused. And in the appreciation
of circumstantial evidence, there are four basic guidelines:
(1) it should be acted upon with caution; (2) all the essen-
tial facts must be consistent with the hypothesis of guilt;
(3) the facts must exclude every other theory but that of
guilt; and (4) the facts must establish such a certainty of
guilt of the accused as to convince the judgment beyond a
reasonable doubt that the accused is the one who commit-
ted the offense.
"After a careful review of the entire evidence pre-
sented, we find that a combination of the foregoing cir-
cumstances is insufficient to convict appellant of rape
with homicide. Said circumstances do not lead to a fair
and reasonable conclusion that accused-appellant, to the
exclusion of all others, is the person guilty of the offense
charged. Appellant's indifference to the events that hap-
pened in their barangay x x x may lend support to the
suspicion of the barangay and police authorities that he
is the author of the crime. But then, mere suspicion, no
matter how strong it may be, is not sufficient to sustain
conviction. Law and jurisprudence demand proof beyond
reasonable doubt before any person may be deprived of
his life, liberty, or even property. Enshrined in the Bill
of Rights is the right of the accused to be presumed in-
nocent until the contrary is proved, and to overcome the
PRELIMINARY CONSIDERATIONS 41
A. Miscellaneous Basic Principles

presumption that nothing but proof beyond reasonable


doubt must be established by the prosecution. The consti-
tutional presumption of innocence requires courts to take
"a more than casual consideration" of every circumstances
or doubt proving the innocence of the accused.
"In his testimony, . . . [a witness] admitted that ac-
cused-appellant was considered a suspect because he did
not join the search for the missing girl. Appellant testi-
fied that he did not participate in the search because he
was busy drying copra. It cannot be contradicted that
such passive reaction is susceptible to different interpre-
tations. Indeed, it may be construed as an indication of
guilt; but, it may also be interpreted as mere indifference
or even downright insensibility.
"Moreover, there was no evidence presented to show
that after . . . [the brother] left his sister to wash her food
container and slippers at the communal water pump, ap-
pellant was seen with her. Furthermore, the testimony of
. . . that he saw appellant along the road on his way home
is not sufficient to support the conclusion that it was ap-
pellant who committed the crime. At best, it is mere con-
jecture or speculation which the Court will not subscribe
to.
"Jurisprudence instructs that where the circum-
stances obtaining m^liasielErF"capable of two inferences,
one of which is consistent with the presumption of inno-
cence while the other may be compatible with the finding
of guilt, the court must acquit the accused because the
evidence does not fulfill the test of moral certainty and,
therefore, is insufficient to support a judgment of convic-
tion .

Flight or Non-flight of the Accused


1. The fact that appellants never fled the locality where
the crime was committed i^JiatbyJtself a valid defense against
tijejpjrosecution's allegations because non-flight does not sig-
nify innocence. Non-flight is simply inaction, which may be
due~to~several factors. It cannot be singularly considered as
evidence or as a manifestation determinative of innocence
42 EVIDENCE
(The Bar Lectures Series)

(People v. Amodia, G.R. No. 177356, November 20, 2008). It


is established in this jurisdiction that while flight indicates
guilt, non-flight does not mean innocence (Gulmatico v. Peo-
ple, G.R. No. 146296, October 15, 2007).
2. There is no law or principle holding that non-flight
per se is proof, let alone conclusive proof, of innocence. Much
like the defense of alibi, the defense of non-flight cannot pre-
vail against the weight of positive identification of the appel-
lants (People v. Dacibar, 325 SCRA 725). On the other hand,
flight per se is not synonymous with guilt and must not always
be attributed to one's consciousness of guilt. Flight alone is
not a reliable indicator of guilt without other circumstances
because flight alone is inherently ambiguous (Valdez v. Peo-
ple, G.R. No. 170180, November 23, 2007). However, in a case
where the accused escaped from detention during the penden-
cy of the case, flight was considered as an indication of guilt
or of his guilty mind: "x x x the wicked flee even when no man
pursues, but the righteous stand fast as bold as a lion" (People
v. Isang, G.R. No. 18307, December 4, 2008).

Cumulative Evidence and Corroborative Evidence


1. Cumulative evidence refers to evidence of the same
kind and character as that already given and that tends to
prove the same proposition (Wyne v. Newman, 75 Va., 811,
817 as cited in Moran, Comments on the Rules of Court, Vol. 5,
1980, p. 3). For example, when a witness testifies that he saw
the event testified to and two other witnesses testify having
seen the same event which the first witness claimed he saw,
the subsequent testimonies constitute cumulative evidence.

2. Corroborative evidence is one that is supplementary


tothat already given tending to strengthen or confirm itTlt is
additional evidence of a different character to the same point
(Edwards v. Edwards, Tenn. App., 501 S.W. 2d 283. 289 as
cited in Black's Law Dictionary, 5th Ed., p. 311). As commonly
used, the term connotes evidence which tends to confirm, vali-
date, or strengthen evidence already presented. Thus, if W
testifies that the gun marked as Exhibit " A " was the weapon
PRELIMINARY CONSIDERATIONS 43
A. Miscellaneous Basic Principles

used in the shooting of the victim, the findings of the crime


laboratory that the gun bears only the fingerprints of the ac-
cused corroborates the testimony of W.

Corroborative evidence is usuallyjqf a different type from


that previously offered but which tends to prove the same fact.
For instance, a witness claims that he saw M r . X sign the
document subject of the action. M r . X denies the authenticity
of his signature. Evidence by a handwriting expert that the
signature is indeed that of M r . X is corroborative evidence.
H e r e , we have a testimonial evidence from an eyewitness, and
a testimony from an expert who did not personally witness the
signing of the document.

Although traditionally, this type of evidence is of a differ-


ent type from the one it corroborates, the meaning of corrobo-
rative evidence has been loosely used in local courts so as to
cover also evidence of the same kind as that already proferred
as long as it affirms the previous evidence. For instance, the
testimony of X that he saw Y hack the victim with a bolo cor-
roborates the previous testimony of Z that indeed he saw Y
strike the victim w i t h a bladed weapon. Here, the previous
testimony is corroborated by evidence of the same kind, i.e.,
testimonial evidence from eyewitnesses. In this sense, the cor-
roborating evidence is also cumulative since the evidences are
of the same kind and character.

3. Corroborative testimony is not always required. For


example, in a case, the accused avers that his conviction for
estafa is without legal basis because there was no other evi-
dence, documentary or testimonial, establishing his alleged
crime except for the uncorroborated testimony of the prosecu-
tion witness.
In clear terms, the Supreme Court, speaking through
Justice Regalado held:

" . . . it also bears mention that the testimony of a


single prosecution witness, where credible and positive,
is sufficient to prove beyond reasonable doubt the guilt of
the accused. There is no law which requires that the tes-
44 EVIDENCE
(The Bar Lectures Series)

timony of a single witness has to be corroborated, except


where expressly mandated in determining the value and
credibility of evidence. Witnesses are to be weighed, not
numbered" (People v. Pabalan, G.R. No. 115350 and G.R.
Nos. 117819-21, September 30, 1996).

4. In People u. Rama (350 SCRA 266), the defense faults


the trial court for relying on a single eyewitness account in
convicting the accused Rama. The Court dismissed the argu-
ment declaring that it has long been held that the testimony
of a sole eyewitness is sufficient to support a conviction so long
as it is clear, straightforward and worthy of credence by the
trial court.
Corroborative evidence is necessary only when there are
reasons to suspect that the witness falsified the truth or that
his observations are inaccurate (Mangangey u. Sandiganbay-
an, G.R. Nos. 147773-74, February 18, 2008).

Corroboration of the Testimony of a Child Witness


Under the Rule on Examination of a Child Witness, cor-
roboration 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,
Rule on Examination of a Child Witness; People v. Rama, su-
pra).

Positive and Negative Evidence


1. These categories of evidence have been normally as-
sociated with testimonial evidence but there is no rule which
precludes their application to other forms of evidence. Thus,
evidence is said to be positive when a witness.affirms j n the
stand that a certain state of facts does exist or that a certain
event happjened. It is negative when the witness states that
an event did not occur or that the state of facts alleged to exist
does not actually exist. Thus, the testimony of W that he saw
P fire a gun at the victim is a positive evidence. T h e testimony
PRELIMINARY CONSIDERATIONS 45
A. Miscellaneous Basic Principles

of W that he could not have fired the gun because he was not
armed during the incident, is a negative evidence.
Positive and negative evidence may likewise refer to the
presence or absence of something. Thus, the presence of fin-
gerprints of a person in a particular place is positive evidence
of his having been in said place although absence of his fin-
gerprints does not necessarily mean he was not in the same
place.

A negative finding on a paraffin test is not a conclusive


evidence that one has not fired a gun because it is possible for
a person to fire a gun and yet bear no traces of nitrates or gun-
powder, as when the culprit washes his hands or wears gloves
(People v. Cerilla, G.R. No. 177147, November 28, 2007).
2. A denial is a negative evidence. It is considered by
the Court to be a very weak form of defense and can never
overcome an affirmative or positive testimony particularly
when the latter comes from the mouth of a credible witness
(People v. Mendoza, 450 SCRA 328). It is negative and self-
serving which cannot be given greater weight than the testi-
mony of credible witnesses who testified on affirmative mat-
ters (People v. Malicsi, G.R. No. 175833, January 29, 2008).
A l r e a d y beyond cavil is the evidentiary rule that mere
denial does not overturn the relative weight and probative
value of an affirmative assertion. Denial is inherently a weak
defense. To be believed, it must be buttressed by strong evi-
dence of non-culpability; otherwise, such denial is purely self-
serving and is with no evidentiary value. Like the defense of
alibi, denial crumbles in the light of positive declarations. De-
nial cannot prevail over the positive identification of the ac-
cused by the witnesses who had no ill motive to testify falsely
(Tan v. Pacuribot, A.M. No. RTJ-06-1982, December 14, 2007;
Villafranca v. Pacuribot, A.M. No. RTJ-06-1983, December 14,
2007).
A mere denial, without any strong evidence to support
it, can scarcely overcome the positive declaration by the other
victim of the identity and involvement of the accused in the
crime attributed to him (People v. Nieto, 547 SCRA 511). De-
46 EVIDENCE
(The Bar Lectures Series)

nial, when unsubstantiated by clear and convincing evidence,


is negative and self-serving, which deserves no greater evi-
dentiary value than the testimony of credible witnesses who
testify on affirmative matters (People v. Maglente, G.R. No.
179712, June 27, 2008; People v. Montesa, G.R. No. 181899,
November 27, 2008).
3. Greater probative value is given to evidence that is
positive in nature than that which is accorded to evidence that
is negative in character. Denial is a self-serving negative evi-
dence that cannot be given greater weight than the declara-
tion of credible witness who testified on affirmative matters
(Republic v. Bautista, G.R. No. 169801, September 11, 2007;
People v. Malicsi, G.R. No. 175833, January 29, 2008).
4. Mere denial by an accused, particularly when not
properly corroborated or substantiated by clear and convinc-
ing evidence, cannot prevail over the testimony of credible
witnesses who testify on affirmative matters. Denial partakes
of the nature of negative and self-serving evidence and is sel-
dom given weight in law. Positive and forthright declarations
of witnesses are often held to be worthier of credence than the
self-serving denial of an accused (Anilao v. People, G.R. No.
149681, October 15, 2007).

5. In case of contradictory declarations and statements,


greater weight is generally given to positive testimonies than
to mere denials (Marcelo v. Bungubung, G.R. No. 175201,
April 23, 2008).

Liberal Construction of the Rules of Evidence


1. Like all other provisions under the Rules of Court,
the rules of evidence must be liberally construed (Sec. 6, Rule
1, Rules of Court). 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 es-
chewed if it would subvert their primary objective of enhanc-
ing substantial justice.

Procedural rules must be liberally interpreted and ap-


plied so as not to frustrate substantial justice (Quiambao v.
PRELIMINARY CONSIDERATIONS 47
A. Miscellaneous Basic Principles

Court of Appeals, 454 SCRA 17). However, to justify relax-


ation of the rules, a satisfactory explanation and a subsequent
fulfillment of the requirements have always been required
(Barcenas v. Tomas, 454 SCRA 593).

2. T h e Rules on Electronic Evidence shall likewise be


construed liberally (Sec. 2, Rule 2, Rules on Electronic Evi-
dence).

Absence of a Vested Right in the Rules of Evidence


There is no vested right in the rules of evidence (Ayala de
Roxas v. Case, 8 Phil. 197) because the rules of evidence are
subject to change by the Supreme Court pursuant to its powers
to promulgate rules concerning pleading, practice and proce-
dure (Sec. 5[5], Constitution of the Philippines). The change in
the rules of evidence is however, subject to the constitutional
limitation on the enactment of ex post facto laws (Art. Ill, Sec.
22, Bill of Rights, Constitution of the Philippines). An ex post
facto law includes that which alters the rules of evidence and
receives less or different testimony than that required at the
time of the commission of the offense in order to convict the
accused (Mekin v. Wolfe, 2 Phil. 74).

Waiver of the Rules of Evidence


1. The rules of evidence may be waived. When an oth-
erwise objectionable evidence is not objected to, the evidence
becomes admissible because of waiver.
For instance, while as a rule hearsay evidence is exclud-
ed and carries no probative value, the rule admits of an excep-
tion. Where a party failed to object to hearsay evidence, then
the same is admissible (SSS Chemicals Corporation v. Court
of Appeals, G.R. No. 128538, February 28, 2001).
2. M a y the parties stipulate waiving the rules of evi-
dence?
The Civil Code of the Philippines (Art. 6) provides that
"rights may be waived, unless the waiver is contrary to law,
48 E V I D E N C material
E = to prove a particular
(The Bar Lectures fact,
Series)factum probandum
relevant = to prove factum probans

public order, public policy, morals, or good customs or prejudi-


cial to a third person with a right recognized by law." As long
as no law or principles of morality, good customs and pub-
lic policy are transgressed or no rights of third persons are
violated, the rules of evidence may be waived by the parties.
However, it is submitted that a failure to object with respect
to a privileged communication involving state secrets commu-
nicated to a public officer in official confidence should not be
construed as a waiver of the privileged character of the com-
munication because of public policy considerations as when
the state secret is one involving national defense and secu-
rity. exclusionary rule - evidence gathered in violation of the bill
of rights is inadmissible. fruit of the poisonous tree.

B. Admissibility of Evidence

Requisites for the Admissibility of Evidence


1. Section 3 of Rule 128 provides:

"SECTION 3. Admissibility of evidence. Evi-


dence is admissible when it is relevant to the issue and
is not excluded by the law or these rules."

Thus, for evidence to be admissible, two elements must


concur, namely: , i. < <\ _

(a) the evidence isjngleirore^anci ) ?r$<$'-


(b) the evidence is not excluded byjbhe rules (com-
JJetent).

These two elements correspond to Wigmore's two axioms


of admissibility, namely: ( a ) T h a t none but facts having ra-
tional probative value are admissible; and ( b ) T h a t all facts
having rational probative value are admissible unless some
specific rule forbids them (I Wigmore, 9-10, 289-295). T h e
first axiom is, in substance, the axiom of relevance while the
second is the axiom of competence.

2. No evidence is admissible unless it is relevant. H o w -


ever, relevancy alone does not make the evidence admissible.
PRELIMINARY CONSIDERATIONS 49
B. Admissibility of Evidence

An item of evidence may be relevant but not admissible. It is


not admissible because although relevant, it may be incom-
petent, i.e., it is excluded by l a w or by a particular rule or by
both. N e i t h e r is evidence admissible merely because it is com-
petent. Although evidence is competent, it is still inadmissible
if it is not relevant. T h e formula for admissibility is a simple
one. To be admissible, the evidence must be both relevant and
competent.

Illustrations of the Requisites for Admissibility


( 1 ) In a prosecution for homicide, the witness swears
that the accused killed the victim because his ever truthful
boyhood friend fold him so. T h e testimony, although relevant,
is^hoTadmissible because i h e witness was not testifying based
o j i h ^ p e r s o n a l knowledge of the event. T h e testimonyjsjjgar-
say and this type of evidence is, as a rule, excluded by the
rules/Sec. 36, Rule 130, Rules of Court). In short, the testi-
mony offered is relevant but incompetent.

( 2 ) In a prosecution for robbery, the wife of the accused


testified that the husband admitted to her in confidence that it
was he who killed their neighbor. If the testimony is offered as
evidence against the husband and Is objected to by the latter,
the testimonial evidence will be inadmissible by virtue of a
particular provision of the Rules of Court which excludes it as
a specie of evidence notwithstanding its obvious relevance to
the issue of guilt (Sec. 24[a], Rule 130, Rules of Court). Here,
the testimony j g also relevant but incompetent.
(3) In a civil case for collection of a sum of money, the tes-
timony of an eyewitness to the transaction between the credi-
tor and the debtor is competent evidence because the witness
would be testifying on the basis of his personal knowledge.
However, if the subject of the testimony includes the alleged
frequent bouts of dizziness of the debtor, that portion of the
testimony is made inadmissible by the fact that the matters
testified to are irrelevant to the issue of whether or not a debt
exists. In this case the testimony becomes irrelevant.
50 EVIDENCE
(The Bar Lectures Series)

(4) A defense witness testifies having actually seen the


alleged victim fire a gun at the accused without the tatter's
provocation. The testimony of the eyewitness is competent and
the matters testified to are relevant to the plea of self-defense.
The testimony is thus, admissible. It is not only relevant but
competent as well.
(5) Upon a timely objection, oral evidence will be ex-
cluded to prove a contract of a sale of a parcel of land which
does not conform to the statute of frauds (Art. 1403[2], Civil
Code of the Philippines). Even if the evidence is relevant to the
issue of existence or non-existence of the contract, it is inad-
missible because it is excluded by law hence, incompetent.
(6) Documents obtained in violation of constitutional
guarantees although containing relevant matters are inad-
missible because they are illegally obtained as when evidence
is illegally seized (Sec. 3[2], Art. Ill, Constitution of the Philip-
pines).

Inadmissible Evidence Under the Anti-Wiretapping Law (R.A.


No. 4200)
1. Evidence obtained in violation of R . A . 4200 shall not
be admissible in evidence in the following proceedings: ( a ) ju-
dicial, (b) quasi-judicial, (c) legislative, or ( d ) administrative
hearing or investigation (Sec. 4, R.A. 4200).

Whether or not illegally wire-tapped recordings are ad-


missible in impeachment proceedings is not well-settled. It is
however, of interest to note how Chief Justice Puno described
an impeachment proceeding in his Concurring and Dissenting
Opinion in the case of Francisco v. House of Representatives
(G.R. No. 160261, November 10, 2003).

After tracing the history of impeachment from England


to the United States and finally to the Philippines, the then
Associate Justice Puno declared:

"I therefore respectfully submit that there is now a


commixture of political and judicial components in our re-
engineered concept of impeachment. It is for this reason
PRELIMINARY CONSIDERATIONS 51
B. Admissibility of Evidence

and more that impeachment proceedings are classified as


sui generis. To be sure, our impeachment proceedings
are indigenous, a kind of its own. They have been shaped
by our distinct political experience especially in the last
fifty years . . ." (Emphasis supplied)

Sui generis means "of its own kind or class, i.e., the only
one of its own kind; peculiar" (Black's Law Dictionary, 5th
Ed., 1286). If an impeachment proceeding in the Philippines
is a class of its own, it is certainly not a judicial, quasi-judicial,
legislative or administrative hearing or investigation. If the
nature of impeachment proceedings as described by Chief Jus-
tice Puno is to be adopted by the Supreme Court, there would
seem to be no reason therefore, to prevent the admissibility of
illegally procured recordings in an impeachment case.
2. T h e evidences considered inadmissible if obtained in
violation of R . A . N o . 4200 are spelled out clearly in the law,
thus: ( a ) any communication or spoken word, ( b ) the existence,
contents, substance, purport, effect, or meaning of the commu-
nication or spoken word or any part thereof (Sec. 4, R.A. No.
4200). N o t e that even the "existence" of the communication is
inadmissible.

3. T h e provisions of Sec. 1 of R . A . N o . 4200, does not


consider it unlawful to record open and public communica-
tions. W h a t the l a w protects are private conversations and
communications. It is considered unlawful to ( a ) secretly
overhear, (b) intercept, or (c) record private communication
or spoken word when doing so is without the authority of all
the parties to such private communication. If only one party
authorizes the recording and the other does not, there is a
violation of the law.
According to the Court: "Absent a clear showing that both
parties to the telephone conversations allowed the recording
of the same, the inadmissibility of the subject tapes is manda-
tory under Republic Act 4200" (Salcedo-Ortanez v. Court of
Appeals, G.R. No. 110662, August 4, 1994).
In Ramirez v. Court of Appeals (G.R. No. 93833, Sep-
tember 28, 1995), the plaintiff filed a civil case for damages
52 EVIDENCE
(The Bar Lectures Series)

against the defendant. In support of her claim, the plaintiff


presented in evidence a verbatim transcript of a recording
made by the plaintiff herself of the conversation between her
and the defendant. In a subsequent criminal case for violation
of R.A. 4200, the accused who was the plaintiff in the civil
case, argued that R . A . 4200 does not apply to the taping of the
parties to the conversation. The Court disagreed with the ac-
cused holding that the tape recorded conversation violates the
law.
In People v. Navarro (G.R. No. 121087, August 26,1999),
a radio reporter was killed by the accused, a police officer. T h e
killing was preceded by a heated altercation between the ac-
cused and the victim in front of several people in a police sta-
tion. The altercation was captured in a tape recording made
by a fellow reporter. The Supreme Court ruled that the tape
recording is admissible and is not a transgression of the pro-
visions of R . A . 4200 because the recorded altercation is not a
private communication. While the Supreme Court did not ex-
plain why the recordings did not involve a private communica-
tion, it is apparent that since the heated discussion occurred
in the presence of other persons, it could not be private.

4. Sec. 1 of the same law mentions certain modes of re-


cording the private conversations, such as: ( a ) to tap any wire
or cable, (b) to use a dictaphone, dictagraph or detectaphone
(c) to use a walkie-talkie, ( d ) to use a tape recorder, or ( e ) to
use any device otherwise described.

In Ganaan v. Intermediate Appellate Court (G.R. No.


L -69809, October 16, 1986), the Court was confronted with
the issue of whether a person should be liable under R . A . N o .
4200 for listening to a conversation which he was not autho-
rized to listen to using a telephone extension line. T h e accused
contended that a telephone extension line is not embraced by
the words "any devise otherwise described." T h e Court agreed.
The Court explained that although whether or not listening
over a telephone party line would be punishable under the law
was discussed on the floor of the Senate, telephone party lines
were deleted from the final provisions of the law. It was held
PRELIMINARY CONSIDERATIONS 53
B. Admissibility of Evidence

that an extension telephone line cannot be placed under the


category of the enumerated devices.

5. A person who did not participate in the acts men-


tioned in the immediately preceding paragraph may be liable
under Sec. 1 of R . A . N o . 4200. This is because the law also
considers it unlawful to knowingly possess any tape record,
w i r e record, disc record, or any such record, or copies thereof
of any communication or spoken word secured or obtained in
a manner violative of the law. It is also unlawful to replay the
same to any other person or persons. It is even also unlaw-
ful to communicate the contents thereof either verbally or in
writing to another. T h e l a w also prohibits the furnishing of
transcriptions of the recorded communication, whether com-
plete or partial to any other person.

Sec. 2 of R . A . N o . 4200 also imposes a penalty to persons


"who willfully or knowingly aid, permit or cause to be done"
the acts described above.

6. T h e acts mentioned as punishable would not consti-


tute a violation of the l a w if done by a peace officer authorized
by a written order of the court in cases involving ( a ) treason,
( b ) espionage, (c) provoking war and disloyalty in case of war,
( d ) piracy, ( e ) mutiny in the high seas, (f) rebellion, ( g ) conspir-
acy and proposal to commit rebellion, ( h ) inciting to rebellion,
( i ) sedition, ( j ) conspiracy to commit sedition, ( k ) inciting to
sedition, and ( k ) kidnapping as defined by the Revised Penal
Code and violations of Commonwealth Act N o . 616 punishing
espionage, and other offenses against national security. It is
important for the court order to be issued in accordance with
the guidelines set forth in Sec. 3 of R . A . N o . 4200.

'Surveillance of Suspects and Interception and Recording


of Communications Under the Human Security Act of 2007
(R.A. No. 9372)
1. Under Sec. 7 of the Human Security Act of 2007, the
provisions of R . A . N o . 4200 notwithstanding, a police or law
enforcement official may listen to, intercept and record, any
54 EVIDENCE
(The Bar Lectures Series)

communication, message, conversation, discussion, or written


or spoken words between the following:
( a ) members of a judicially declared and outlawed
terrorist organization, association, or
(b) group of persons or of any person charged with
or suspected of the crime of terrorism or conspiracy to
commit terrorism.
2. In the interception and recording of communications,
the officer may do so with the use of any mode, form, kind or
type of electronic or other surveillance equipment or intercep-
tion and tracking devices or with the use of any other suitable
ways and means for that purpose (Sec. 7, R.A. No. 9372).
3. A n y of the above acts may not however, be done
without a written order of the Court of Appeals (Sec. 7, R.A.
No. 9372). Such written order of a division of the Court of A p -
peals shall be granted only upon a written application by a
police or law enforcement official. This official must be one
who is authorized by the Anti-Terrorism Council to file such
application. N o t e that Sec. 8 of R . A . N o . 9372 requires only an
ex parte application.
Before the written order is issued, the applicant and the
witnesses he may produce shall be examined under oath or
affirmation to establish the following matters:
( a ) There is a probable cause to believe that the
crime of terrorism or conspiracy to commit terrorism has
been committed, or is being committed, or is about to be
committed. T h e finding of probable cause must be shown
based upon the personal knowledge of the applicant of
facts and circumstances indicating the same.
(b) There is probable cause to believe based on per-
sonal knowledge of facts and circumstances that evidence
essential to the conviction of the charged or suspected
person, or evidence that would solve or prevent the crime,
will be obtained; and

(c) There is no other effective means readily avail-


able for acquiring such evidence (Sec. 8, R.A. No. 9372).
PRELIMINARY CONSIDERATIONS 55
B. Admissibility of Evidence

4. T h e authorization granted by the authorizing divi-


sion of the Court of Appeals shall be effective for the length
of time specified in the written order which shall not exceed
thirty (30) days from the date of receipt of the written order by
the applicant. T h e period may be renewed for a non-extend-
ible period of thirty (30) days upon proper application under
the conditions set forth in Sec. 10 of R . A . N o . 9372.
5. T h e authorization, the order of extension or renew-
al, and the applications filed, including authorizations of the
Anti-Terrorism Council are considered as classified informa-
tion. T h e person under surveillance or whose communications
are intercepted has the right to be informed of the acts done
by the law enforcement authorities or to challenge the legality
of the interception before the Court of Appeals which issued
the written order (Sec. 9, R.A. No. 9372).

Inadmissible Evidence in Connection with Arrests, Searches


and Seizures
M a n y cases decided by the courts raising the issue of ad-
missibility of evidence have been those connected to searches
as consequences of warrantless arrests by law enforcement
authorities.
1. A landmark 1988 case, Peopley. Aminnudin (163
SCRA 402), demonstrates the inadmissibility of evidence due
to the legal infirmity of an arrest forjQoncomplianfie with the
requisites of the flagrante delicto exception. Here, two days
before the arrest, constabulary officers received a tip from an
informer that the accused was on board an identified vessel
on a particular date and time and was carrying marijuana.
Acting on the information, they waited for the accused and ap-
proached him as he descended the gangplank of the ship and
arrested him. A subsequent inspection of his bag disclosed
the presence of three kilos of marijuana leaveajffie Court de-
clared as inadmissible in evidence the marijuana found in the
possession of the accused as a product of an illegal search and
not being an incident to a lawful arrest. Emphatically, the Su-
preme Court ruled that the accused was not, at the moment of
56 EVIDENCE
(The Bar Lectures Series)

his arrest, committing a crime nor was it shown that he was


about to do so or that he had just done so. He was merely de-
scending the gangplank of the ship and there was no outward
indication that called for his arrest. To all appearances, he
was like any of the other passengers innocently disembarking
from the vessel. It was only when the informer pointed to him
as the carrier of the marijuana that he suddenly became a
suspect and so subject to apprehension. The court added that
from the information received by the officers, they could have
obtained a warrant since they had at least two days to apply
for the same but the officers made no efforts to comply with
the bill of rights. They chose to ignore the law. The marijuana
is incompetent evidence because its seizure was illegal. T h e
seizure was not incident to a valid arrest.
2. In People v. Molina (352 SCRA 174), the conviction
by the trial court was reversed and set aside when the Su-
preme Court declared as invalid an arrest made merely on the
basis of reliable information that the persons arrested were
carrying marijuana. The accused were arrested while inside
a pedicab despite the absence of any outward indications of
a crime being committed. Similarly, in Malacat v. Court of
Appeals (283 SCRA 159), the Supreme Court declared that a
warrantless arrest cannot be justified where no crime is be-
ing committed at the time of the arrest because no crime may
be inferred from the fact that the eyes of the person arrested
were "moving fast" and "looking at every person" passing by.

3. y Another classic case that illustrates an invalid ar-


rest and a subsequent illegal search and seizure is People v.
Mengote (210 SCRA 174). T h e issue on the legality of the ar-
rest, search and seizure stemmed from a telephone call to the
police from an alleged informer that suspicious looking men
were at a street corner in Tondo shortly before noon. T h e po-
lice operatives dispatched to the place saw three men one of
whom turned out to be Mengote, who was "looking from side"
clutching his abdomen. The operatives approached the three
men and introduced themselves as policemen. T w o of them
accordingly tried to run away but the attempt was foiled. T h e
search yielded a revolver in the possession of Mengote and a
PRELIMINARY CONSIDERATIONS 57
B. Admissibility of Evidence

fan knife in the pocket of another. Mengote contends that the


revolver should not have been admitted in evidence because
its seizure was a product of an illegal search and not made as
an incident to a lawful arrest.

T h e Court ruled that the requirements of a warrantless


arrest were not complied with. There was no offense which
could have been suggested by the acts of Mengote of looking
from side to side while holding his abdomen. Observed the
Court:

"These are certainly not sinister acts. * * * He was


not skulking in the shadows but walking in the clear light
of day. There was nothing clandestine about his being on
that street at that busy hour in the blaze of the noonday
sun. * * * By no stretch of the imagination could it have
been inferred from these acts that an offense had just
been committed, or was at least being attempted in their
presence."

4. One relatively recent case (People v. Laguio, Jr.,


G.R. No. 128587, March 16,2007), and which drew much from
the ruling in Aminnudin likewise aptly illustrates the appli-
cation of the doctrine. In this case, two men were arrested
while they were about to hand over a bag of shabu to a police
officer. Questioned, the arrested men told police operatives
working for a modelling agency owned by a certain Wang that
they knew of a scheduled delivery of shabu early the follow-
ing morning and that their employer, W a n g could be found at
a certain apartment building in Malate, Manila. The police
operatives decided to look for W a n g to shed light on the illegal
drug activities of his alleged employees and proceeded to the
location of the apartment and placed the same under surveil-
lance.
When W a n g came out of the apartment towards a parked
car, two other police officers approached Wang, introduced
themselves to him as police officers, asked his name and,
upon hearing that he was Wang, immediately frisked him and
asked him to open the back compartment of the car. When
frisked, there was found inside the front right pocket of Wang
58 EVIDENCE
(The Bar Lectures Series)

a pistol with live ammunition which was later verified to be


unlicensed. At the same time, the other members of the opera-
tives searched the car and found inside it were transparent
plastic bags with shabu, cash in the amount of P650.000.00,
electronic and mechanical scales, and another unlicensed pis-
tol with magazine. Then and there, W a n g objected to the war-
rantless arrest and search.
The Supreme Court, in no uncertain terms declared that
the facts and circumstances surrounding the case did not
manifest any suspicious behavior on the part of W a n g that
would reasonably invite the attention of the police. He was
merely walking from the apartment and was about to enter
a parked car when the police operatives arrested him, frisked
and searched his person and commanded him to open the
compartment of the car. He was not committing any visible
offense then. Therefore, there can be no valid warrantless ar-
rest in flagrante delicto under paragraph ( a ) of Section 5, Rule
113. It is settled, said the Court, that reliable information
alone, absent any overt act indicative of a felonious enterprise
in the presence and within the v i e w of the arresting officers,
is not sufficient to constitute probable cause that would justify
an in flagrante delicto arrest (Citing People v. Binad Sy Chua,
444 Phil. 757 and People v. Molina, 352 SCRA 174).

In Laguio, Jr., what is clearly established from the


testimonies of the arresting officers said the Court, is that
Wang was arrested mainly on the information that he was
the employer of the two men who w e r e previously arrested
and charged for illegal transport of shabu. T h e y did not in
fact identify W a n g to be their source of the shabu when they
were caught in flagrante delicto. Upon their declaration that
there will be a delivery of shabu on the early morning of the
following day and that W a n g may be found in an apartment
building in Malate, the arresting officers conducted what they
termed was a "surveillance" operation in front of said apart-
ment, hoping to find a person who w i l l match the description
of Wang, the employer of the arrested men.

The conclusion of the trial court that the warrantless ar-


rest was illegal and that ipso jure, the warrantless search inci-
PRELIMINARY CONSIDERATIONS 59
B. Admissibility of Evidence

dental to the illegal arrest is likewise unlawful was sustained


by the Supreme Court.

5. In Valdez v. People (G.R. No. 170180, November 23,


2007), the prosecution's evidence indicated that petitioner was
arrested without a warrant. W h e n he alighted from a mini-
bus at around 8:30 in the evening, he was accordingly looking
around seemingly searching for something and appeared sus-
picious. Besides, he allegedly ran when the tanods approached
him. After his arrest following a chase, dried marijuana leaves
w e r e found inside his bag according to the barangay tanods.
H i s conviction by the Regional Trial Court was affirmed by
the Court of Appeals. T h e accused prayed for his acquittal on
appeal to the Supreme Court alleging among other defenses,
that this warrantless arrest was illegal and that the warrant-
less search of his bag was likewise contrary to law.

T h e Supreme Court observed that the records do not


show that petitioner objected to the illegality of his arrest and
instead actively participated in the trial of the case and if ju-
risprudence w e r e to be followed, petitioner is to be deemed to
have submitted to the jurisdiction of the court, thus curing
any defect in his arrest. Warrantless arrests, said the Court,
affects only the jurisdiction of the court over his person and is
not in itself, a basis for acquittal.
H o w e v e r , ruled the Court, in order to determine the ad-
missibility of the seized items in evidence, it is indispensable
to ascertain whether or not the search which yielded the al-
leged contraband was lawful. The warrantless search is justi-
fied only if it were incidental to a lawful arrest.
The Court found that even casting aside the petitioner's
version of the facts including his vehement denial of ownership
and possession of the seized items, the petitioner's unlawful
arrest stands out just the same. N o t one of the circumstances
prevailing under Sec. 5 of Rule 113 authorizing warrantless ar-
rests applies to the arrest of the petitioner. Petitioner was not
committing a crime at the time he alighted from the bus, nor
did he appear to be committing a crime. The act of petitioner
60 EVIDENCE
(The Bar Lectures Series)

of looking around after getting off the bus was but natural as
he was finding his way to his destination. That he purportedly
attempted to run away as he was approached is irrelevant and
cannot by itself be construed as adequate for a tanod to have
personal knowledge that petitioner had just engaged in, was
actually engaging in or was attempting to engage in criminal
activity. It is not unreasonable to expect the petitioner, after
being approached by unknown persons at night to attempt to
flee at their approach. Flight is not a reliable indicator of guilt.
When petitioner was arrested without a warrant, he was nei-
ther caught in flagrante delicto committing a crime nor was
the arrest effected in hot pursuit. The Court in effect ruled on
the inadmissibility of the seized evidence.

6. In People v. Dela Cruz (G.R. No. 182348, November


20, 2008), officers engaged in a buy-bust operation was en-
gaged by the suspect in a firelight that resulted in the latter's
death. The prosecution established that the accused was at
that time in the nipa hut of the deceased. T h e accused claimed
that he was there to fix the motorcycle of the deceased. Alleg-
edly, he was seen holding a shotgun but dropped it when the
police pointed a gun at him. W h e n apprehended he was in a
room which had the seized shabu, a digital weighing scale,
drug paraphernalia, ammunition and magazines. Although
he later on admitted that he knew what the contents of the
seized plastic bags were, he claimed he was in the place upon
the request of the deceased to do a welding job on the motor-
cycle of said deceased.

The accused was arrested there and then and subse-


quently charged with illegal possession of firearms and am-
munition and illegal possession of drugs. He was acquitted on
the first charge but convicted on the second.

In resolving the appeal, the Court enumerated the ele-


ments of illegal possession of dangerous drugs to wit:

( a ) The accused is in possession of an item or object


which is identified to be a prohibited drug;

(b) Such possession is not authorized by law; and


PRELIMINARY CONSIDERATIONS 61
B. Admissibility of Evidence

(c) T h e accused freely and consciously possessed


the said drug; and

On the third element, the possession must be with knowl-


edge of the accused or animus possidendi existed with the pos-
session or control of said articles.
Given the circumstances, declared the Court, the pros-
ecution failed to establish possession of shabu, whether in its
actual or constructive sense, on the part of the accused. The
fact that the accused was in the same place where the shabu
was seized and that he was seen talking to the deceased by
the table where the prohibited items were located, are mat-
ters that are too broad for the application of the concept of
constructive possession. Since the accused was not in posses-
sion of the illegal drugs when he was arrested, his arrest was
illegal and the confiscated drugs cannot be used in evidence
against him.
7. T h e following situations w e r e cited in the above case
and held to constitute constructive possession in drug cases:
( a ) In People v. Torres (501 SCRA 591), it was held
that there was constructive possession even when the ac-
cused was not at home when the prohibited drugs were
found in the master's bedroom of his house.
(b) In People v. Tira (430 SCRA 134), there was
constructive possession when illegal drugs were found
concealed in the bed and room of both accused.
(c) In Abuan v. People (505 SCRA 799), the Court
ruled there was constructive possession when illegal
drugs were found inside the drawer located in the bed-
room of the accused.
8. In a more recent case, the Court stressed that the
finding of illicit drugs and paraphernalia in a house or build-
ing occupied by a particular person raises the presumption
of knowledge and possession thereof (People v. Lagman, G.R.
No. 168695, December 8, 2008).
In Lagman, the Court likewise ratiocinated that illegal
possession of regulated drugs is mala prohibita, and as such,
62 EVIDENCE
(The Bar Lectures Series)

criminal intent is not an essential element, but the prosecu-


tion must prove the intent to possess (animus posedendi).
Possession is not only actual. It may also be constructive. A
constructive possession exists when the drug is under the do-
minion and control of the accused or when he has the right to
exercise dominion and control over the place where it is found.
Exclusive possession or control is not necessary. The accused
cannot avoid conviction even if his right to exercise control
and dominion over the place where the contraband is located
is shared with another.

Relevant Evidence
1. Under Sec. 4 of Rule 128, evidence to be relevant
must have such a relation to the fact in issue as to induce belief
in its existence or non-existence. T h e concept of relevance is
clearly one of logic. It deals with the rational relationship be-
tween the evidence and the fact to be proved. In other words,
the evidence adduced should be directed to the matters in dis-
pute and any evidence which has neither direct nor indirect
relationship to such matters must be set aside as irrelevant.

2. The matter of relevance under the Rules of Court


requires the existence of a fact in issue. Necessarily, this fact
in issue must be a disputed fact. Since relevant evidence nec-
essarily relates to a disputed fact, it is obvious that evidence
offered to prove an undisputed fact is irrelevant, and, as such,
is inadmissible. Where there is no issue as to a matter of fact,
there exists no purpose for an item of evidence.

3. It is the relation to the fact in issue which makes


evidence either relevant or irrelevant. If the evidence induces
belief as to the existence or the non-existence of the fact in is-
sue, the evidence is relevant. If it does not induce such belief,
it is irrelevant.

4. Although competency of the evidence is a necessary


component of admissible evidence, the question that most
often arises in court is the relevance of the evidence. When
an advocate offers a piece of evidence for the court's consid-
PRELIMINARY CONSIDERATIONS 63
B. Admissibility of Evidence

eration, he offers the evidence to prove a fact. This fact may


either be the immediate fact in issue or the ultimate fact in
issue.

T a k e the standard car accident as example. Counsel for


the plaintiff presents the testimony of another car driver to
testify to the following: that the defendant was driving at a
speed of one hundred twenty (120) kilometers per hour in a
sixty (60) kilometer limit zone at the time plaintiff was side-
swiped and injured by the defendant. The witness claims he
knows whereof he speaks because he saw everything that
transpired. Whether or not such testimony meets the test of
relevance will depend upon what counsel wants to prove by
the testimony. Initially of course, counsel would want to prove
that at the time of the accident, the defendant was driving way
beyond the speed limit. This is the immediate fact sought to
be established. Since there is a traceable connection between
the substance of the testimony and the fact to be proven, the
testimony is relevant. On the other hand, if the testimony is
offered to prove that the defendant is a thief, the testimony
has no logical connection at all to the fact sought to be proven.
Certainly, there is no connection between driving at a very
fast pace and the defendant's being a thief. The testimony is
hence, irrelevant.
Relevance further requires that the immediate fact prov-
en must have a connection to the ultimate issue. In the car
accident case just illustrated, assume that counsel has estab-
lished through the witness that the defendant was driving
way beyond the speed limit at the time of the accident. Estab-
lishing such a fact is not however, sufficient. This fact must
be shown to be related to the ultimate issue in the case. Now,
the usual ultimate issue in every automobile accident case is
whether or not the damage caused to the plaintiff arose out
of the defendant's negligent operation of his car. The ques-
tion that should necessarily be asked is: Is the immediate fact
proven, i.e., defendant's driving beyond the speed limit, re-
lated to the issue of negligence? If it is, then the fact proven is
relevant evidence. If it is not related to the issue of negligence,
it is irrelevant.
EVIDENCE
64
(The Bar Lectures Series)

Bar 1981
M
S" is indebted to a bank. When the obligation falls
due, he fails to pay and the bank sues for collection. As
part of the evidence of the bank, the accountant of "S" is
placed on the stand and in the course of his examination
he is asked if he, in turn, is also indebted to the bank.
The lawyer of "S" interposes two objections to the
question: (a) that it is impertinent; (b) x x x
If you were the judge, how would you rule on the
objections.

Suggested answer:
(a) The objection of "S" that the_ question is im-
pertinent or irrelevant should be sustained. Thejssug.in
the case is the indebtedness of the defendant to the bank
and not the indebtedness of the accountant of "S" to the
bank^
(b) xxx

Test for Determining the Relevancy of Evidence


1. Because of the definition of relevant evidence under
Sec. 4 of Rule 128, it is obvious that relevance is a matter
of relationship between the evidence and a fact in issue. T h e
determination of relevance is thus, a matter of inference and
not of law. T h e test would therefore, be one of logic, common
sense^ and experience.

2. The existence of the relationship between the fact in


issue and the offered evidence is one that is perceived only by
the mind without reference to a statute or a rule. It is there-
fore, a matter of reasoning. It is a matter of reasoning because
relevance is a matter of logic. T h e matter of relevance is a
matter that is addressed to the court. T h e case of People v.
Galleno, 291 S C R A 761, is enlightening:

"There is no precise and universal test of relevancy


provided by law. However, the determination of whether
particular evidence is relevant rests largely at the discre-
PRELIMINARY CONSIDERATIONS 65
B. Admissibility of Evidence

tion of the court, which must be exercised according to the


teachings of logic and everyday experience."

Relevance of Evidence on the Credibility of a Witness


1. Evidence on the credibility or lack of it of a witness
is always relevant. In every proceeding, the credibility of the
witness is always an issue. T h e credibility of the witness has
the inherent tendency to prove or disprove the truthfulness
of his assertion and consequently, the probative value of the
proffered evidence. E v e r y type of evidence sought to be ad-
mitted, whether it be an object or a document, requires the
testimony of a witness who shall identify, testify and affirm
or deny the authenticity of the evidence. Thus, when the cred-
ibility of the sponsoring witness is found wanting, Sec. 11 of
Rule 132, authorizes his impeachment by contradictory evi-
dence, by evidence that in the past, he has made statements
inconsistent with his present testimony or by evidence that
his general reputation for truth, honesty or integrity is bad.

In the assessment of the testimonies of witnesses, the


Court is guided by the rule that for evidence to be believed, it
must not only proceed from the mouth of a credible witness,
but must be credible in itself such as the common experience
of mankind can approve as probable under the circumstances.
There is no test of the truth of human testimony except its
conformity to our knowledge, observation, and experience.
Whatever is repugnant to these belongs to the miraculous,
and is outside of juridical cognizance (People v. Calumpang,
454 SCRA 719; Ubales v. People, G.R. No. 175692, October 29,
2008).
2. The importance of the credibility of a witness in
a judicial proceeding is highlighted by rules which allow
the adverse party to test such credibility through a process
called 'cross-examination.' Hence, under Sec. 6 of Rule 132,
a witness may be cross-examined by the adverse party not
only on matters taken up in the direct examination. The broad
spectrum of the questions allowable in a cross-examination of
a witness includes questions on matters connected with those
66 EVIDENCE
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taken up in the direct examination. It includes questions


designed to grant the cross-examiner sufficient fullness and
freedom to test the accuracy and truthfulness of the witness,
his interest or bias, or the reverse. It likewise covers inquiries
into matters that would elicit all important facts bearing upon
the issue.
Since Sec. 6 of Rule 132 affirms the legitimacy of inquiries
into the credibility and biases of a witness, any objection to a
question that intends to demonstrate the lack or absence of
credibility of the witness on the ground that it is irrelevant or
merely collateral does not deserve to be sustained.
3. There are however, instances provided for in the
rules when the questions of the cross-examiner are circum-
scribed by the matters taken up in the direct examination and
thus questions outside the subject matter of the direct exami-
nation are not allowed.
( a ) An accused may testify as a witness on his own
behalf "but subject to cross-examination on matters cov-
ered by the direct examination" (Sec. l[d], Rule 115, Rules
of Court).

(b) A hostile witness may be impeached and cross-


examined by the adverse party, but such cross-examina-
tion "must only be on the subject of his examination-in-
chief." (Sec. 12, Rule 132, Rules of Court)

Competent Evidence

1. Competent evidence is one that is not excluded by


law in a particular case (Moran, Comments on the Rules of
Court, Volume 5, 1980, citing Porter v. Valentine, 18 Misc.
Rep. 213, 41 N.Y.S. 507; Hart v. Newland, 10 N.C. 122; Ryan
v. Town ofBrisol, 63 Conn., 26, 27, Ml 309). "The admissibil-
ity of the evidence depends on its relevance and competence
x x x " (Tating v. Marcella, G.R. No. 155208, March 27, 2007;
italics supplied).

2. If the test of relevance is logic and common sense,


the test of competence is the law or the rules. If the law or a
PRELIMINARY CONSIDERATIONS 67
B. Admissibility of Evidence

particular rule excludes the evidence, it is incompetent. Com-


petence is primarily therefore, a matter of law or a matter of
rule. T h e question as to competence is: Is the evidence allowed
by the law or by the rules? If it is allowed, the evidence is com-
petent. If it is not allowed, it is incompetent.

Imagine and assume for the sake of illustration that a


rule of evidences has just been adopted mandating that only
documentary evidences to which have been attached a yellow
ribbon on the bottom right corner may be marked and admit-
ted in evidence. If the adverse counsel presents for identifica-
tion and marking a document to which had been attached a
red ribbon, the document is to be excluded because it is not
competent. It is incompetent because the rule says so regard-
less of its demonstrable logical relation to the fact in issue.

3. Competence, in relation to evidence in general, refers


to the eligibility of an evidence to be received as such. How-
ever, when applied to a witness, the term competent refers to
the qualifications of the witness. In other words, competence
refers to his eligibility to take the stand and to testify. It is in
this context that the term is normally associated with. Thus,
a trial objection employing the ground incompetent is usually
used in relation to the ineligibility of a witness to testify be-
cause of the presence of a disability that renders him unfit to
sit on the stand.

If evidence offered is objectionable on the ground that it


is incompetent, an objection that it is incompetent is not an
accepted form of objection because it is a general objection.
The objection should specify the ground for its incompetence
such as leading, hearsay or parol. Although evidence is in-
competent if excluded by law or by the rules, evidence is not
objected to on the ground that it is incompetent. It is so gen-
eral a term and cannot be appreciated in court. Courts nei-
ther need nor appreciate generalities. General objections are
viewed with disfavor because specific objections are required
by Sec. 36, Rule 132 of the Rules of Court. Thus, for purposes
of trial objections, evidence is never incompetent. It is people
who are. It is sloppy usage to object to a testimony or a docu-
EVIDENCE
68
(The Bar Lectures Series)

ment as incompetent. Such term more appropriately describes


a witness who under evidentiary rules, does not possess the
qualifications of a witness or suffers from a disqualification to
be one.

Competence of Electronic Evidence


Electronic evidence is competent evidence and is admis-
sible if it complies with the rules on admissibility prescribed
by the Rules of Court and is authenticated in the manner pre-
scribed (Sec. 2, Rule 3, Rules on Electronic Evidence).

Collateral Matters
1. A matter is collateral when it is on a "parallel or di-
verging line," merely "additional" or "auxiliary" (Black's Law
Dictionary, 5th Ed., 237). This term connotes an absence of
a direct connection between the evidence and the matter in
dispute.
2. For instance, the motive of a person and in some in-
stances, his reputation are matters that may be considered
collateral to the subject of a controversy. A very strong motive
to kill the victim does not ipso facto make motive relevant to
the issue of guilt or innocence because the person with abso-
lutely no motive to kill could be the culprit. Evidence of the
bad reputation of the accused for being troublesome and ag-
gressive does not make the evidence admissible to prove his
guilt. After all, the culprit could have been the person with the
most endearing reputation.

When Collateral Matters are Allowed


1. As a rule, evidence on a collateral matter is not al-
lowed (Sec. 4, Rule 128, Rules of Court). It is not allowed be-
cause it does not have direct relevance to the issue of the case.
This rule however, is not an absolute rule. T h e r e exists an
occasion when evidence on a collateral matter maybe allowed.
Under the Rules of Court, a collateral matter may be admitted
if it tends in any reasonable degree to establish the probabil-
PRELIMINARY CONSIDERATIONS 69
B. Admissibility of Evidence

ity or improbability of the fact in issue (Sec. 4, Rule 128, Rules


of Court). In other words, while the evidence may not bear
directly on the issue, it will be admitted if it has the tendency
to induce belief as to the probability or improbability of the
issues of the case as when it would have the effect of corrobo-
rating or supplementing facts previously established by direct
evidence.

To illustrate: Although evidence of character is generally


inadmissible (Sec. 51, Rule 130, Rules of Court), the accused
may prove his good moral character which is pertinent to the
moral trait involved in the offense charged (Sec. 51[a][l], Rule
130, Rules of Court).

In civil cases, evidence of the moral character of a party is


admissible when pertinent to the issue of character involved
in the case (Sec. 51[b], Rule 130, Rules of Court). Also, evi-
dence of the good character of a witness is admissible if his
character has been previously impeached (Sec. 14, Rule 132,
Rules of Court).

Admissible Evidence Distinguished from Credible Evidence


1. Admissible evidence is not necessarily credible evi-
dence. Admissibility and credibility must be sharply contrast-
ed. T h e y are entirely two different matters and involve differ-
ent concepts. T h e term "admissible" means that the evidence
is of such a character that the court, pursuant to the rules of
evidence, is bound to receive it or to allow it to be introduced
at the trial. Admissibility however, does not guarantee cred-
ibility. Admissibility is one thing and credibility is another.
2. The term "credibility" refers to worthiness of belief,
that quality which renders a witness worthy of belief (Black's
Law Dictionary, 5th Ed., 330). The meaning of credibility in
law is exactly what it means in ordinary usage: "believabil-
ity." After the competence of a witness is allowed, the consid-
eration of his credibility follows.
3. Also, the competency of a witness differs from his
credibility. A witness may be competent, and yet give incred-
70 EVIDENCE
(The Bar Lectures Series)

ible testimony; he may be incompetent, and yet his evidence,


if received, is perfectly credible (Black's Law Dictionary, 5th
Ed., 257). '

Admissibility and Weight of the Evidence


1. The admissibility of evidence should not be confused
with its probative value. Admissibility refers to the question
of whether certain pieces of evidence are to be considered at
all, while probative value refers to the question of whether the
admitted evidence proves an issue. Thus, a particular item
of evidence may be admissible, but its evidentiary weight de-
pends on judicial evaluation within the guidelines provided by
the rules of evidence (Heirs of Lourdes Saez Sabanpan v. Cor-
moposa, 408 SCRA 692). Admissibility is one thing, weight
is another. To admit evidence and not to believe it are not
incompatible with each other (Calamba Steel Center, Inc. v.
Commissioner of Internal Revenue, G.R. No. 151857, April 28,
2005).
2. Stated in another way, the admissibility of evidence
should not be equated with the weight of the evidence. The ad-
missibility of the evidence depends on its relevance and com-
petence while the weight of evidence pertains to its tendency
to convince and persuade. A particular item of evidence may
be admissible but its evidentiary weight depends on judicial
evaluation with the guidelines provided by the rules of evi-
dence (Tating v. Marcella, G.R. No. 155208, March 27, 2007).

v- Some Jurisprudential Tenets on Probative Value and Cred-


ibility

1. Jurisprudence has laid down some basic rules on


credibility such as:
( a ) Whether or not a witness or evidence is cred-
ible is an issue addressed to the judgment of the trial
court and jurisprudence has been consistent on this rule
(People v. Castro, G.R. No. 172874, December 17, 2008).
The determination of the credibility of a witness is
within the domain of the trial court (Llanto v. Alzona, 450
PRELIMINARY CONSIDERATIONS 71
B. Admissibility of Evidence

SCRA 288) and is given great weight and respect (People


v. Dela Cruz, G.R. No. 174371, December 11, 2008). The
findings of the trial court, its calibration of the testimo-
nies of its witnesses and its assessment of the probative
weight thereof, as well as its conclusions anchored on said
findings are accorded respect if not conclusive effect.
T h e evaluation of the credibility of witnesses is a
matter best left to the trial court because it has the op-
portunity to observe the witnesses and their demeanor
during the trial. T h e Court accords great respect to the
trial court's findings, unless the trial court overlooked or
misconstrued substantial facts which could have affected
the outcome of the case (People v. Talan, G.R. No. 177354,
November 14,2008; Cruz v. People, G.R. No. 164580, Feb-
ruary 6, 2009).

Findings of credibility of the trial court will gener-


ally be respected on appeal; even findings of facts of the
Court of Appeals, when supported by substantial evi-
dence, are conclusive and binding upon the parties and
not reviewable by the Supreme Court (Millares v. PLDT,
458 SCRA 102).

T h e credibility of witnesses is a matter best left to


the determination of the trial court because it had the
unique advantage of having personally observed the
witnesses, their demeanor, conduct, and attitude. As a
consequence, the Court considers the trial court's assess-
ment of the credibility of witnesses to be binding except
when the lower court had patently overlooked facts and
circumstances of weight and influence that could alter
the results of the case. To be believed, denial must be sup-
ported by strong evidence of non-culpability; otherwise,
it is purely self-serving. Alibi, on the other hand, is one
of the weakest defenses in a criminal case and should be
rejected when the identity of the accused is sufficiently
and positively established by the prosecution (People v.
Nueva, G.R. No. 173248, November 3, 2008).
Where however, the trial judge did not hear the testi-
monies himself, he would not be in a better position than
72 EVIDENCE
(The Bar Lectures Series)

the Supreme Court to assess the credibility of witnesses


on the basis of their demeanor (Bank of the Philippine
Islands v. Reyes, G.R. No. 157177, February 11, 2008).
(b) Time and again, the Court has held that when
it comes to the issue of credibility of the victim or the
prosecution witnesses, the findings of the trial courts
carry great weight and respect and, generally, the ap-
pellate courts will not overturn the said findings unless
the trial court overlooked, misunderstood or misapplied
some facts or circumstances of weight and substance
which will alter the assailed decision or affect the result
of the case. This is so because trial courts are in the best
position to ascertain and measure the sincerity and spon-
taneity of witnesses through their actual observation of
the witnesses' manner of testifying, their demeanor and
behavior in court. Trial judges enjoy the advantage of ob-
serving the witness' deportment and manner of testify-
ing, the "furtive glance, blush of conscious shame, hesi-
tation, flippant or sneering tone, calmness, sigh, or the
scant or full realization of an oath" all of which are
useful aids for an accurate determination of a witness'
honesty and sincerity. Trial judges, therefore, can bet-
ter determine if such witnesses are telling the truth, be-
ing in the ideal position to w e i g h conflicting testimonies.
Again, unless certain facts of substance and value were
overlooked which, if considered, might affect the result of
the case, its assessment must be respected, for it had the
opportunity to observe the conduct and demeanor of the
witnesses while testifying and detect if they were lying.
The rule finds an even more stringent application where
the said findings are sustained by the Court of Appeals
(People v. Cerilla, G.R. No. 177147, November 28, 2007;
People v. Aguilar, G.R. No. 177749, December 17, 2007;
Ingal v. People, G.R. No. 173282, March 4, 2008; People
v. Domingo, G.R. No. 177136, June 30, 2008; People v.
Ranin, Jr., G.R. No. 173023, June 25, 2008).

(c) People v. Aycardo (G.R. No. 168299, October 6,


2008), in relation to prosecutions for rape, adds:
PRELIMINARY CONSIDERATIONS 73
B. Admissibility of Evidence

"Youth and immaturity are generally badges


of truth and sincerity. No sane girl would concoct
a story of defloration, allow an examination of her
private parts and subject herself to public trial or
ridicule if she has not, in truth, been a victim of rape,
and thus impelled to seek justice for the wrong done
to her. The weight of her testimony may be countered
by physical evidence to the contrary, or indubitable
proof that the accused could not have committed the
rape, but in the absence of such countervailing proof,
the testimony shall be accorded utmost value.
"The rule is that when an alleged victim of rape
says she was violated, she says in effect all that is
necessary to show that rape has been inflicted on
her, and so long as her testimony meets the test of
credibility, the accused may be convicted on that
basis x x x " (People v. Aycardo, G.R. No. 168299,
October 6, 2008, citing People v. Macapal, Jr., 463
SCRA 387)

( d ) Testimonies of child-victims are normally given


full weight and credit, since when a woman, more so if
she is a minor, says that she has been raped, she says in
effect all that is necessary to show that rape was com-
mitted. Youth and immaturity could indeed be badges of
truth. This observation is a matter of judicial cognizance
borne out by human nature and experience. There could
not have been a more powerful testament to the truth
than this "public baring of unspoken grief." More so, it
is an accepted doctrine that in the absence of evidence of
improper motive on the part of the victim to falsely tes-
tify against the accused, her testimony deserves credence
(People v. Aguilar, G.R. No. 177749, December 17, 2007).

( e ) "It is within the foregoing framework that


courts have consistently assigned full weight and credit
to the testimony of a child-complainant, for no woman,
much less one of tender age, would broadcast a violation
of her person, allow an examination of her flesh and en-
dure a public trial of her remaining dignity, unless she
is solely impelled by the desire for redress. Thus, when
74 EVIDENCE
(The Bar Lectures Series)

her testimony is plausible, spontaneous, convincing and


consistent with human nature and the ordinary course
of things, it can indeed beget moral certainty of the guilt
of her violator. And what can overcome the weight of her
testimony is inconsistency on the fact of carnal knowledge
or any credible physical evidence of the lack of it. But for
as long as she remains steadfast in her testimony on the
essential element of carnal knowledge, inconsistencies
or discrepancies on any other detail will not impair, but
rather buttress, the veracity of her testimony, for lapses
in her recollection of peripheral details are only to be ex-
pected for she is made to relive a harrowing experience.
This rule holds especially true when the minor inconsis-
tencies are between her sworn statements and testimony
in open court for such discrepancies do not necessarily
discredit her since ex parte affidavits are almost always
incomplete and therefore inferior to the testimony given
in open court.

"Further, from its vantage point, a trial court can ob-


serve firsthand how a complainant carries herself as she
testifies . . . It is for this reason that when it finds a com-
plainant credible and her testimony truthful, its factual
findings are reviewed only according to the following pa-
rameters: first, the reviewing court will not disturb such
factual finding of the trial court unless there is a showing
that the latter had overlooked, misunderstood, or misap-
plied some fact or circumstance of weight and substance
that would have affected the result of the case; second,
the findings of the trial court pertaining to the credibil-
ity of the witness is entitled to great weight and respect
since it had the opportunity to examine the latter's de-
meanor when testifying; third, a witness who testified
in a categorical, straightforward, spontaneous and frank
manner and remained consistent on cross-examination
is a credible witness. These parameters are even more
stringently applied when the factual findings of the trial
court have been affirmed by the appellate court" (People
v. Santos, G.R. No. 171452, October 17, 2008).
PRELIMINARY CONSIDERATIONS 75
B. Admissibility of Evidence

In connection with the above rulings vis-a-vis the


constitutional presumption of innocence enjoyed by an
accused, the pronouncements of the Court in the earlier
case of People v. Sandagon (233 SCRA 108), are highly
instructive. H e r e , the Court declared:

"It is not enough to say that a girl would not


expose herself to the humiliation of a rape complaint
unless the charge is true. That is putting things too
simply. For the prosecution to succeed, it is also
necessary to find that the complainant's story is by
itself believable independently of the presumption.
Otherwise, if all that mattered was that presump-
tion, every accusation of rape would inevitably re-
sult, without need of further evidence, in the convic-
tion of the accused. This would militate against the
rule that in every criminal prosecution, including
rape cases, the accused shall be presumed innocent
until the contrary is proved" (People v. Domogoy, 305
SCRA 75).

( 2 ) Factual findings of trial courts which have been af-


firmed in toto by the Court of Appeals are entitled to great
weight and respect and w i l l not be disturbed absent any show-
ing that the trial court overlooked certain facts and circum-
stances which could substantially affect the outcome of the
case (Yulo v. People, 452 SCRA 705; Mendoza v. People, 448
SCRA 158; People v. Bohol, G.R. No. 178198, December 10,
2008).

( 3 ) Minor inconsistencies are too trivial to affect the


credibility of witnesses, and these may even serve to strength-
en their credibility as these negate any suspicion that the
testimonies have been rehearsed (Ingal v. People, G.R. No.
173282, March 4, 2008; Eternal Gardens Memorial Park Cor-
poration v. Philippine American Life Insurance Company, G.R.
No. 166245, April 9, 2008). Accuracy in accounts had never
been applied as a standard to which credibility of witnesses
are tested since it is undeniable that human memory is fickle
and prone to the stresses of emotions and the passage of time
(People v. Tolentino, G.R. No. 176385, February 26, 2008).
76 EVIDENCE
(The Bar Lectures Series)

Inconsistencies between the sworn statement and the


testimony in court do not militate against the witness' cred-
ibility since the sworn statements are generally considered
inferior to the testimony in open court (People v. Bajada, G.R.
No. 180507, November 20, 2008).
4. The factual findings of quasi-judicial agencies are
generally accorded respect and even finality by the Supreme
Court if supported by substantial evidence in recognition of
their expertise on the specific matters under consideration
(Quiambao v. Court of Appeals, 454 SCRA 17).
5. There is no standard matrix by which to determine
what constitutes normal behavior post assault. Different peo-
ple react differently to trauma. Hence, A A A ' s testimony that
after appellant raped her, she stood up and walked home and
hid her shame is not completely improbable (People v. Santos,
G.R. No. 171452, October 17, 2008). There is no uniform be-
havior expected of victims after being raped. Different people
react differently to a given situation, and there is no standard
form of behavioral response when one is confronted with a
strange or startling or frightful experience (People v. Arraz,
G.R. No. 183696, October 24, 2008; People v. Montesa, G.R.
No. 181899, November 27, 2008).

6. A community tax receipt is not credible and reliable


in proving the identity of a person who wishes to have his
document notarized (Baylon v. Almo, A.C. No. 6962, June 25,
2008).

7. In determining the value and credibility of evidence,


witnesses are to be weighed, not numbered. T h e testimony
of only one witness, if credible and positive, is sufficient to
convict (Bastian v. Court of Appeals, G.R. No. 160811, April
18, 2008). Hence, the lone testimony of the victim in a crime
of rape, if credible, is enough to sustain a conviction (People v.
Martin, G.R. No. 172069, January 30, 2008).

8. The testimony of a single witness, if positive and


credible, is sufficient to support a conviction even in the charge
of murder. A person can still be properly identified and recog-
PRELIMINARY CONSIDERATIONS 77
B. Admissibility of Evidence

nized even by merely looking at the side portion of his face.


Experience dictates that because of the unusual acts of vio-
lence committed right before their eyes, witnesses can remem-
ber with a high degree of reliability the identity of criminals
at any given time (People v. Zeta, G.R. No.178541, March 27,
2008; People vs. Dela Pena, Jr., G.R. No. 183567, January 19,
2009).

- oOo
Chapter II

JUDICIAL NOTICE AND ADMISSIONS

A . J u d i c i a l Notice

1. The relevant provisions on judicial notice provide:

"SECTION 1. Judicial notice, when mandatory.


A court shall take judicial notice, without the introduc-
tioni of evidence, of the existence and territorial extent
of states, their political history, forms of government
and symbols of nationality, the law of nations, the ad-
miralty and maritime courts of the world and their seals,
the political constitution and history of the Philippines,
the official acts of the legislative, executive and judicial
departments of the Philippines, the laws of nature, the
measure of time, and geographical divisions.
Sec. 2. Judicial notice, when discretionary. A
court may take judicial notice of matters which are of
public knowledge, or are capable of unquestionable
demonstration or ought to be known to judges because
of their judicial functions.
Sec. 3. Judicial notice, when hearing necessary.
During the trial, the court, on its own initiative, or on
request of a party, may announce its intention to take
judicial notice of any matter and allow the parties to be
heard thereon.
After the trial, and before judgment or on appeal,
the proper court, on its own initiative or on request of
a party, may take judicial notice of any matter and allow
the parties to be heard thereon if such matter is decisive
of a material issue in the case."

78
JUDICIAL NOTICE AND ADMISSIONS 79
A. Judicial Notice

2. There are matters in a litigation which must be ad-


mitted without need for evidence. For example, when the com-
plainant in a criminal case alleges that he was assaulted by
the accused in Quezon City, it would be ridiculous to require
the prosecution to prove that a place called Quezon City ex-
ists. Also, if the accused is charged with the violation of a stat-
ute, there is no need to introduce evidence that said statute
exists because the court is charged with knowledge of the law
it being the product of an official act of the legislative depart-
ment of the Philippines.

There is likewise no need to adduce evidence to prove that


there are twenty-four (24) hours in a day or that the sun rises
in the east and sets in the west. T h e fact that Cebu lies in the
Visayan region needs no further evidence. To require evidence
for such obvious facts would be to indulge in utter absurdity.
N o w , all these matters which the court may take cognizance
of without evidence are called matters of "judicial notice."

3. Judicial notice is based on the maxim, "what is


known need not be proved," hence, when the rule is invoked,
the court may dispense with the presentation of evidence on
judicially cognizable facts (Thayer, Preliminary Treatise on
Evidence, p. 277 cited in Jones, The Law on Evidence in Civil
Cases, Volume I, 3rd Ed.).
4. To say that a court will take judicial notice of a fact is
merely another way of saying that the usual form of evidence
will be dispensed with if knowledge of the fact can be other-
wise acquired (State Prosecutors v. Muro, 236 SCRA 505).

Function of Judicial Notice


1. The function of judicial notice is to abbreviate litiga-
tion by the admission of matters that need no evidence because
judicial notice is a substitute for formal proof of a matter by
evidence (People v. Rowland, 4 Cal 4th 238,14 Cal Rptr 2d 377;
29 Am Jur 2d, Evidence, 24, 1994). Judicial notice takes the
place of proof and is of equal force. It displaces evidence and
fulfills the purpose for which the evidence is designed to ful-
80 EVIDENCE
(The Bar Lectures Series)

fill. Hence, it makes evidence unnecessary (Moran, Comments


on the Rules of Court, 1980, p. 38 citing Alzua v. Johnson, 21
Phil. 308). When the court takes judicial notice of a matter,
the court accepts and recognizes the same without necessity
of formal proof. Evidence shall be dispensed with because the
matter is so well known and is of common knowledge not to be
disputable.
2. While the court has the power to dispense with proof
of judicially cognizable adjudicative facts when the principles
of judicial notice are properly invoked, judicial notice cannot
however, be used to fill in the gaps in the party's evidence
(Hammond v. Doody find App] 553 NE2d 196) but judicial
notice should not be used to deprive an adverse party of the
opportunity to prove a disputed fact (29 Am Jur 2d, Evidence,
24,1994).

When Judicial Notice is Mandatory


1. A matter of judicial notice may either be mandatory
(Sec. 1, Rule 129, Rules of Court) or discretionary (Sec. 2, Rule
129, Rules of Court). W h e n the matter is subject to a manda-
tory judicial notice, no motion or hearing is necessary for the
court to take judicial notice of a fact because this is a matter
which a court ought to take judicial notice of.
2. The following are matters subject to mandatory ju-
dicial notice.

( a ) the existence and territorial extent of states;


(b) the political history, forms of government and
symbols of nationality of states;
(c) the law of nations;
( d ) the admiralty and maritime courts of the world
and their seals;

( e ) the political constitution and history of the Phil-


ippines;

(f) the official acts of the legislative, executive and


judicial departments of the Philippines;
JUDICIAL NOTICE AND ADMISSIONS 81
A. Judicial Notice

( g ) the laws of nature;


( h ) the measure of time; and
(i) the geographical divisions.
3. It would be error for a court not to take judicial no-
tice of an amendment to the Rules of Court. In a case, the
Supreme Court declared that even if petitioners did not raise
or allege the amendment of the Rules of Court in their mo-
tion for reconsideration before it, the Court of Appeals should
have taken mandatory judicial notice of the Supreme Court's
resolution in A . M . M a t t e r N o . 00-02-03 SC amending Sec. 4 of
Rule 65 effective September 1, 2004. Under Sec. 1 of Rule 129,
a court shall take judicial notice among others, of the official
acts not only of the legislative and executive departments but
also of the judicial department (Siena Realty Corporation v.
Gal-lang, 428 SCRA 422).

It is axiomatic that a court has the mandate to apply rel-


evant statutes and jurisprudence in determining whether the
allegations in a complaint establish a cause of action. While
it focuses on the complaint, a court clearly cannot disregard
decisions material to the proper appreciation of the questions
before it. In resolving the motion to dismiss, the trial court
should have taken cognizance of the official acts of the legis-
lative, executive, and judicial departments because they are
proper subjects of mandatory judicial notice as provided by
Section 1 of Rule 129 of the Rules of Court (DENR v. DENR
Region 12 Employees, 409 SCRA 359).

4. In another case, Respondents argue that the proper-


ties which were expropriated in connection with the operation
of the Lahug Airport should be reconveyed to the real owners
considering that the purpose for which the properties were
expropriated is no longer relevant in view of the closure of
the Lahug Airport. The R T C dismissed the complaint on the
grounds that the respondents had no cause of action, and that
the action was barred by prescription and laches. Respondents
filed a motion for reconsideration which was denied; hence,
they filed an appeal with the Court of Appeals which reversed
the orders of the R T C .
82 EVIDENCE
(The Bar Lectures Series)

Reversing the Court of Appeals, the Supreme Court ruled


that every court must take judicial notice of decisions the Su-
preme Court has rendered as provided by Section 1 of Rule
129 of the Rules of Court.
The Court explained:

"In reversing the Orders of the RTC, the Court of


Appeals failed to consider the decision of this Court in
Mactan-Cebu International Airport v. Court of Appeals
(rendered on November 27, 2000), which settled the is-
sue of whether the properties expropriated under Civil
Case No. R-1881 will be reconveyed to the original owners
if the purpose for which it was expropriated is ended or
abandoned or if the property was to be used other than
the expansion or improvement of the Lahug airport.

"In said case, the Court held that the terms of the
judgment in Civil Case No. R-1881 were clear and un-
equivocal. It granted title over the expropriated land to
the Republic of the Philippines in fee simple without any
condition that it would be returned to the owners or that
the owners had a right to repurchase the same if the pur-
pose for which it was expropriated is ended or abandoned
or if the property was to be used other than as the Lahug
airport. When land has been acquired for public use in
fee simple, unconditionally, either by the exercise of emi-
nent domain or by purchase, the former owner retains no
rights in the land, and the public use may be abandoned,
or the land may be devoted to a different use, without any
impairment of the estate or title acquired, or any rever-
sion to the former owner.

"Had the appellate court considered the import of


the ruling in Mactan-Cebu International Airport v. Court
of Appeals, it would have found that Respondents can in-
voke no right against Petitioner since the subject lands
were acquired by the State in fee simple. Thus, the first
element of a cause of action, i.e., plaintiffs legal right, is
not present in the instant case" (Mactan-Cebu Interna-
tional Airport Authority [MCIAA] v. Heirs of Marcelia L.
Sero, G.R. No. 174762, April 16, 2008).
JUDICIAL NOTICE AND ADMISSIONS 83
A. Judicial Notice

5. In yet another case, the petitioner insists that the


lower court erred in not taking judicial notice of his affidavit
that was attached to his pleading but which was not formally
offered in evidence. T h e Court considered the insistence futile
since it is not among the matters which the rule mandatorily
requires to be judicially noticed.

A d d e d the Court: "A document, or any article for that


matter, is not evidence when it is simply marked for identifi-
cation; it must be formally offered, and the opposing counsel
given an opportunity to object to it or to cross-examine the
witness called upon to prove or identify it. A formal offer is
necessary since judges are required to base their findings of
fact and judgment only and strictly upon the evidence offered
by the parties at the trial. To allow a party to attach any docu-
ment to his pleading and then expect the court to consider it as
evidence may draw unwarranted consequences. T h e opposing
party w i l l be deprived of his chance to examine the document
and object to its admissibility. T h e appellate court will have
difficulty reviewing documents not previously scrutinized by
the court below. T h e pertinent provisions of the Revised Rules
of Court on the inclusion on appeal of documentary evidence
or exhibits in the records cannot be stretched as to include
such pleadings or documents not offered at the hearing of the
case" (Candido u. Court of Appeals, 253 SCRA 78).

6. In another case, the petitioners contended that the


declaration of the President of the Philippines that she in-
formed China's President that the Philippine Government
had decided not to continue with the ZTE-National Broadband
N e t w o r k ( Z T E - N B N ) Project due to several reasons and con-
straints and similar declarations by officials of the executive
branch are self-serving and hence, inadmissible in evidence.
Brushing aside the contention, the Court held that it had no
alternative but to take judicial notice of the declaration of the
President as an official act and thus, is a matter of manda-
tory judicial notice under Sec. 1 of Rule 129 (Suplico v. NEDA,
G.R. No. 178830, July 14, 2008).
84 EVIDENCE
(The Bar Lectures Series)

When Judicial Notice is Discretionary


1. Under the principle of discretionary judicial notice,
"A court may take judicial notice of matters which are of pub-
lic knowledge, or are capable of unquestionable demonstra-
tion, or ought to be known to judges because of their judicial
functions" (Sec. 2, Rule 129, Rules of Court).
2. Stated in another way, the principles of discretion-
ary judicial notice will apply where the following requisites
are met:
(a) The matter must be one of common knowledge;
(b) The matter must be settled beyond reasonable
doubt (if there is any uncertainty about the matter, then
evidence must be adduced); and
(c) The knowledge must exist within the jurisdic-
tion of the court (Berget v. State, [Okla Crim] 824 P2d
364; 29 Am Jur 2d, Evidence, 25 1994; State Prosecutors
v. Muro, 236 SCRA 505).
3. The principal guide in determining what facts may
be assumed to be judicially known is that of notoriety. Hence,
it can be said that judicial notice is limited to facts evidenced
by public records and facts of general notoriety. Moreover, a
judicially noticed fact must be one not subject to a reasonable
dispute in that it is either: (1) generally known within the
territorial jurisdiction of the trial court; or ( 2 ) capable of ac-
curate and ready determination by resorting to sources whose
accuracy cannot reasonably be questionable.

Things of "common knowledge," of which courts take ju-


dicial matters coming to the knowledge of men generally in
the course of the 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. Thus,
facts which are universally known, and which may be found in
encyclopedias, dictionaries or other publications, are judicial-
ly 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. As the com-
JUDICIAL NOTICE AND ADMISSIONS 85
A. Judicial Notice

mon knowledge of man ranges far and wide, a wide variety of


particular facts have been judicially noticed as being matters
of common knowledge. But a court 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 of(Expertravel and Tours, Inc. v. Court of Appeals
459 SCRA 147).

On the other hand, matters which are capable of unques-


tionable demonstration pertain to fields of professional and
scientific knowledge. As to matters which ought to be known
to judges because of their judicial functions, an example would
be facts which are ascertainable from the record of court pro-
ceedings, e.g. as to when court notices were received by a party
(People v. Tundag, 342 SCRA 704).

4. A court therefore, cannot take judicial notice of a fac-


tual matter in controversy. T h e court may take judicial notice
of matters of public knowledge, or which are capable of un-
questionable demonstration, or ought to be known to judges
because of their judicial functions. Before taking such judicial
notice, the court must "allow the parties to be heard thereon."
Hence, there can be no judicial notice on the rental value of
the premises in question without supporting evidence (Her-
rera v. Bollos, 374 SCRA 107).

5. Judicial notice under Sec. 2 of Rule 129 rests on the


wisdom and discretion of the court. The power to take judicial
notice must be exercised with caution and care must be taken
that the requisite notoriety exists. A n y reasonable doubt on
the matter sought to be judicially noticed must be resolved
against the taking of judicial notice (State Prosecutors v. Muro,
236 SCRA 505).
6. The power to take judicial notice is to be exercised by
courts with caution especially in an expropriation case which
involves a vast tract of land. Care must be taken that the req-
uisite notoriety exists; and every reasonable doubt on the sub-
ject should be promptly resolved in the negative. To say that a
court will take judicial notice of a fact is merely another way
of saying that the usual form of evidence will be dispensed
86 EVIDENCE
(The Bar Lectures Series)

with if knowledge of the fact can be otherwise acquired. This


is because the court assumes that the matter is so notorious
that it will not be disputed (Land Bank of the Philippines v.
Wycoco, 419 SCRA 67).
In Wycoco, the trial court, in arriving at the valuation of
the land took judicial notice of the alleged prevailing market
value of agricultural lands in the place without apprising the
parties of its intention to take judicial notice thereof despite
Section 3, Rule 129 of the Rules on Evidence which provides:

"Sec. 3. Judicial Notice, When Hearing Necessary.


During the trial, the court, on its own initiative, or on
request of a party, may announce its intention to take
judicial notice of any matter and allow the parties to be
heard thereon.
After trial and before judgment or on appeal, the
proper court, on its own initiative, or on request of a
party, may take judicial notice of any matter and allow
the parties to be heard thereon if such matter is decisive
of a material issue in the case."

The Supreme Court therefore held, that inasmuch as


the valuation of the property is the very issue in the case at
bar, the trial court should have allowed the parties to pres-
ent evidence thereon instead of practically assuming a valu-
ation without basis. W h i l e market value may be one of the
bases of determining just compensation, the same cannot be
arbitrarily arrived at without considering the factors to be ap-
preciated in arriving at the fair market value of the property
e.g., the cost of acquisition, the current value of like proper-
ties, its size, shape, location, as well as the tax declarations
thereon. Since these factors were not considered, a remand of
the case for determination of just compensation is necessary
(Land Bank of the Philippines v. Wycoco, supra).

Judicial Notice and Knowledge of the Judge


1. Judicial notice may be taken of a fact which judges
ought to know because of their judicial functions (Sec. 2, Rule
129, Rules of Court).
JUDICIAL NOTICE AND ADMISSIONS 87
A. Judicial Notice

But judicial notice is not judicial knowledge. The mere


personal knowledge of the judge is not the judicial knowledge
of the court, and he is not authorized to make his individual
knowledge of a fact, not generally or professionally known, the
basis of his action (State Prosecutors v. Muro, 236 SCRA 505;
Land Bank of the Philippines v. Wycoco, supra).

2. Judicial notice is not limited by the actual knowl-


edge of the individual judge or court. A judge must take judi-
cial notice of a fact if it is one which is the proper subject of
judicial cognizance even if it is not within his personal knowl-
edge. Consequently, a judge may not take judicial notice of a
fact which he personally knows if it is not part of the evidence
or not a fact generally known within its territorial jurisdiction
(29 Am Jur, Evidence, 35; Moore v. Dresden Investment Co.,
162 Wash, 289, 298 Pac. 465, 77 A.L.R. 1258 cited in Jones,
The Law of Evidence in Civil Cases, Vol. 1, 132).

B a r 1980
A resident American, who came here from Massa-
chusetts, made a will where he stated that, in form, it is
executed in accordance with Massachusetts law. The will,
instituting his Filipino widow as his sole heir, would not
be valid in form under Philippine law. Upon his death, the
widow presented the will to the Court of First Instance of
Manila. Probate was objected to by distant relatives of the
testator in California. The Judge had studied in Harvard,
and was familiar with Massachusetts law. Without the
introduction of formal evidence, he granted probate, stat-
ing that the will was, indeed, executed in accordance with
Massachusetts law.
How should the matter be resolved on appeal? Ex-
plain your answer.

Suggested answer:
The judgment should be reversed on appeal. The
trial judge erred when he took judicial notice of Massa-
chusetts law on the basis of his personal knowledge of the
said law. The mere personal knowledge of the judge is not
the judicial knowledge of the court, and the judge is not
88 EVIDENCE
(The Bar Lectures Series)

authorized to make his individual knowledge of a fact the


basis of his action (State Prosecutors v. Muro, 236 SCRA
505). Besides, it is a basic rule that courts of the forum
will not take judicial notice of the law prevailing in an-
other country. Foreign laws must be alleged and proved
(29 Am Jur, Evidence, 116).

Stage When Judicial Notice May Be Taken


The court can take judicial notice of a fact during or after
trial pursuant to the procedure in Section 3 of Rule 129 of the
Rules of Court, as follows:
1. Judicial notice may be taken during the trial of the
case. The court, during the trial, may announce its intention
to take judicial notice of any matter. It may do so on its own
initiative or on the request of any party and allow the parties
to be heard (Sec. 3, Rule 129, Rules of Court). This hearing is
only for the purpose of determining the propriety of taking
judicial notice of a certain matter and not for the purpose of
proving the issues in the case.

2. Judicial notice may also be taken by the proper court


after the trial, and before judgment. Judicial notice m a y also
be taken on appeal. T h e proper court, on its own initiative or
on request of a party, may take judicial notice of any matter
and allow the parties to be heard thereon if such matter is
decisive of a material issue in the case (Ibid.).

Judicial Notice of Foreign Laws; Doctrine of Processus! Pre-


sumption

1. It is well-settled in our jurisdiction that our courts


cannot take judicial notice of foreign laws. L i k e any other facts,
they must be alleged and p r o v e d Australian marital laws for
example, are not among those matters that judges are sup-
posed to know by reason of their judicial functions (Garcia v.
Garcia-Recio, 366 SCRA 437).

In general, and in the absence of statutory requirement


to the contrary, the courts of the forum w i l l not take judicial
JUDICIAL NOTICE A N D ADMISSIONS 89
A. Judicial Notice

notice of the law prevailing in another country (29 Am Jur,


Evidence, 116). Foreign laws must be alleged and proved. In
the absence of proof, the foreign law will be presumed to be
the same as the laws of the jurisdiction hearing the case un-
der the doctrine of processual presumption (Northwest Orient
Airlines v. Court of Appeals, 241 SCRA 192).
For instance, the Court cannot determine whether the
termination of plaintiff is in accordance with Singaporean law
because of the failure to prove the applicable law of Singapore.
Philippine courts do not take judicial notice of foreign laws. In
the absence of evidence of the law of the foreign country, Phil-
ippine laws should be applied under the doctrine of processual
presumption (Laureano v. Court of Appeals, 324 SCRA 414).

2. W h e r e the foreign law is within the actual knowledge


of the court such as when the l a w is generally well known, had
been ruled upon in previous cases before it and none of the
parties claim otherwise, the court may take judicial notice of
the foreign law (PCIB v. Escolin, 56 SCRA 266).
3. W h e n the foreign law is part of a published treatise,
periodical or pamphlet and the writer is recognized in his pro-
fession or calling as expert in the subject, the court, it is sub-
mitted, may take judicial notice of the treatise containing the
foreign law (Sec. 46, Rule 130, Rules of Court).

Judicial Notice of the Law of Nations


W h e n the foreign law refers to the law of nations, said
law is subject to a mandatory judicial notice under Sec. 1 of
Rule 129. Under the Philippine Constitution, the Philippines
adopts the generally accepted principles of international law
as part of the law of the land (Sec. 2, Art. II, Constitution of
the Philippines). Being parts of the law of the land, they are
therefore, technically in the nature of local laws and hence,
are subject to a mandatory judicial notice under Sec. 1 of Rule
129.
EVIDENCE
90
(The Bar Lectures Series)

Bar 2005
Explain briefly whether the Regional Trial Court
may motu propio, take judicial notice of the following:
(a) xxx
(b) xxx
(c) Foreign Laws.
(d) xxx

Suggested answer:
(a) xxx
(b) xxx
(c) Please refer to pars. 1, 2, and 3 of the preceding
topic for answers.

(d) xxx

Bar 1997
(a) Give three instances when a foreign court can
take judicial notice of a foreign law.
(b) Suppose a foreign law was pleaded as part of
the defense of the defendant but no evidence was present-
ed to prove the existence of said law, what is the presump-
tion to be taken by the court as to the wordings of the
law?

Suggested answers:

(a) Please refer to the immediately preceding para-


graphs 1, 2, and 3.
(b) The court should presume that the law of the
foreign country is the same as Philippine laws under the
doctrine of processual presumption.

Judicial Notice of Municipal Ordinances


1. Municipal trial courts must take judicial notice of
municipal ordinances in force in the municipality in which
they sit (U.S. v. Blanco, 37 Phil. 126).
JUDICIAL NOTICE AND ADMISSIONS 91
A. Judicial Notice

2. A Court of First Instance (now R T C ) , should also


take judicial notice of municipal ordinances in force in the
municipalities within their jurisdiction but only when so re-
quired by law. For example, the charter of the City of Manila
requires all courts sitting therein to take judicial notice of all
ordinances passed by the city council (City of Manila v. Gar-
cia, 19 SCRA 413). Such court must take judicial notice also
of municipal ordinances on appeal to it from the inferior court
in which the latter judicial took notice of (U.S. v. Hernandez,
31 Phil. 342; U.S. v. Blanco, supra; Moran, Comments on the
Rules of Court, 1980, 42).

3. T h e Court of Appeals may take judicial notice of


municipal ordinances because nothing in the Rules prohibits
it from taking cognizance of an ordinance which is capable
of unquestionable demonstration (Gallego v. People, 8 SCRA
813).

B a r 2005
Explain briefly whether the Regional Trial Court
may, motu proprio, take judicial notice of the following:
(a) xxx
(b) Ordinances approved by municipalities under
its territorial jurisdiction;
(c) xxx
(d) xxx

Suggested answer:
(a) xxx
(b) A Court of First Instance (now RTC), should
take judicial notice of municipal ordinances in force in the
municipalities within their jurisdiction but only when so
required by law. For example, the charter of the City of
Manila requires all courts sitting therein to take judicial
notice of all ordinances passed by the city council (City of
Manila v. Garcia, 19 SCRA 413). Such court must take
judicial notice also of municipal ordinances on appeal to it
from the inferior court in which the latter judicial took no-
tice of (U.S. v. Hernandez, supra; U.S. v. Blanco, supra).
92 EVIDENCE
(The Bar Lectures Series)

(c) XXX

(d) xxx

Judicial Notice of a Court's Own Acts and Records


A court may take judicial notice of its own acts and re-
cords in the same case (Republic v. Court of Appeals, 277
SCRA 633).

No Judicial Notice of Records of Other Cases; Exceptions


1. While courts may take judicial notice of its own acts
and records in the same case, as a rule, courts are not autho-
rized to take judicial notice of the contents of the records of
other cases, even when such cases have been tried or are pend-
ing in the same court, and notwithstanding the fact that both
cases may have been heard or are actually pending before the
same judge (Tabuena v. Court of Appeals, 196 SCRA 650; BPI-
Family Savings Bank, Inc. v. Court of Appeals, 330 SCRA 507;
Calamba Steel Center, Inc. v. Commissioner of Internal Rev-
enue, 457 SCRA 482).
2. The following are the exceptions to the above rule
in the immediately preceding paragraph: ( a ) when in the ab-
sence of any objection, with the knowledge of the opposing
party, the contents of said other case are clearly referred to
by title and number in a pending action and adopted or read
into the record of the latter; or (b) when the original record of
the other case or any part of it is actually withdrawn from the
archives at the court's discretion upon the request, or with
the consent, of the parties, and admitted as part of the record
of the pending case (Tabuena v. Court of Appeals, 196 SCRA
650; People v. Mendoza, 204 SCRA 288; Jumamil v. Cafe, G.R.
No. 144570, September 21,2005; Calamba Steel Center, Inc. v.
Commissioner of Internal Revenue, 457 SCRA 482).

Rule on Judicial Notice of Post Office Practices


That a registered letter when posted is immediately
stamped with the date of its receipt, indicating therein the
JUDICIAL NOTICE AND ADMISSIONS 93
A. Judicial Notice

number of the registry, both on the covering envelope itself


and on the receipt delivered to the person who delivered the
letter to the office is not a proper subject of judicial notice.
This post office practice is not covered by any of the instances
under the Rules and is not of unquestionable demonstration
(Republic v. Court of Appeals, 107 SCRA 504).

Judicial Notice of Banking Practices


M a y judicial notice be taken of the practice of banks in
conducting background checks on borrowers and sureties?
W h i l e a court is not mandated to take judicial notice of
this practice under Section 1 of Rule 129 of the Rules of Court,
it nevertheless may do so under Section 2 of the same Rule on
discretionary judicial notice. Sec. 2 of Rule 129 provides that a
court may take judicial notice of "matters which are of public
knowledge, or ought to be known to judges because of their
judicial functions." Thus, the Court has taken judicial notice
of the practices of banks and other financial institutions. Pre-
cisely, it has noted that it is their uniform practice, before
approving a loan, to investigate, examine and assess would-be
borrowers' credit standing or real estate offered as security
for the loan applied for (Solidbank Corporation v. Mindanao
Ferroalloy Corporation, 464 SCRA 409).

Judicial Notice of Financial Condition of the Government


Judicial notice could be taken of the fact that the govern-
ment is and has for many years been financially strapped, to
the point that even the most essential services have suffered
serious curtailment (La Bugal-B'laan Tribal Association v.
Ramos, 445 SCRA 1).

Judicial Notice of Presidential Powers Under the Law


The trial court should take judicial notice of R.A. No.
6734 as implemented by E.O. N o . 429 as legal basis of the
President's power to reorganize the executive department.
The official acts of the legislative, executive and judicial de-
94 EVIDENCE
(The Bar Lectures Series)

partments are proper subjects of mandatory judicial notice


(DENR v. DENR Region 12 Employees, infra).

Judicial Notice of Other Matters


1. The trial court can take judicial notice of the gen-
eral increase in rentals of real estate especially of business
establishments (Catungal v. Hao, G.R. No. 134972, March 22,
2001) but the reasonable amount of rent may not be deter-
mined by judicial notice but by supporting evidence, such as
(a) the realty assessment of the land, (b) the increase in re-
alty taxes, and (3) the prevailing rate of rentals in the vicinity
(Corinthian Gardens Association, Inc. v. Tanjangco, G.R. No.
160795, June 27, 2008).
2. A court cannot also take judicial notice of an admin-
istrative regulation or of a statute that is not yet effective.
The reason is simple. A law which is still inexistent cannot be
of common knowledge capable of ready and unquestionable
demonstration (State Prosecutors v. Muro, 236 SCRA 505).

3. " M T C and M C T C judges may act as notaries pub-


lic ex officio in the notarization of documents connected only
with the exercise of their official functions and duties (Borre
v. Mayo, Adm. Matter No. 1765-CFI, 100 SCRA 314; Penera v.
Dalocanog, Adm. Matter No. 2113-MJ, 104 SCRA 193). T h e y
may not, as notaries public ex officio, undertake the prepa-
ration and acknowledgment of private documents, contracts
and other acts of conveyances which bear no direct relation to
the performance of their functions as judges. T h e 1989 Code
of Judicial Conduct not only enjoins judges to regulate their
extrajudicial activities in order to minimize the risk of conflict
with their judicial duties, but also prohibits them from engag-
ing in the private practice of law (Canon 5 and Rule 5.07).

"However, the Court, taking judicial notice of the fact that


there are still municipalities which have neither lawyers nor
notaries public, rules that M T C and M C T C judges assigned to
municipalities or circuits with no lawyers or notaries public
may, in the capacity as notaries public ex officio, perform any
JUDICIAL NOTICE AND ADMISSIONS 95
A. Judicial Notice

act within the competency of a regular notary public, provided


that: (1) all notarial fees charged be for the account of the Gov-
ernment and turned over to the municipal treasurer (Lapena,
Jr. v. Marcos, 114 SCRA 572); and, ( 2 ) certification be made
in the notarized documents attesting to the lack of any lawyer
or notary public in such municipality or circuit" (Doughlas v.
Lopez, A.M. No. MTJ-96-1076, February 9, 2000).

4. It must be emphasized that the circumstances of mi-


nority and relationship mentioned in Article 335 of the Re-
vised Penal Code are special qualifying circumstances which
must be alleged in the information and duly proven by the
prosecution. Here, although the minority of the victim was
properly alleged in the information, there is insufficient evi-
dence of private complainant's age. The trial court erred when
it took judicial notice of private complainant's age to be four-
teen. It should have required competent evidence, such as her
birth certificate, as proof of the victim's actual age at the time
of the offense (People v. Metin, 403 SCRA 105 [2003]).

Judicial notice of the age of the victim is improper, de-


spite the defense counsel's admission, thereof acceding to the
prosecution's motion. As required by Section 3 of Rule 129, as
to any other matters such as age, a hearing is required before
courts can take judicial notice of such fact. Generally, the age
of the victim may be proven by the birth or baptismal certifi-
cate of the victim, or in the absence thereof, upon showing that
said documents were lost or destroyed, by other documentary
or oral evidence sufficient for the purpose (People v. Tundag,
342 SCRA 704). Judicial notice of the issue of age, without the
requisite hearing conducted under Section 3, Rule 129, of the
Rules of Court, would not be considered enough compliance
with the law (People v. Liban, 345 SCRA 453).
5. In this age of modern technology, the courts may
take judicial notice that business transactions may be made
by individuals through teleconferencing. Teleconferencing is
interactive group communication (three or more people in two
or more locations) through an electronic medium. In general
terms, teleconferencing can bring people together under one
roof even though they are separated by hundreds of miles.
96 EVIDENCE
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This type of group communication may be used in a number


of ways, and have three basic types: (1) video conferencing
television-like communication augmented with sound; (2)
computer conferencing printed communication through
keyboard terminals; and (3) audio-conferencing verbal com-
munication via the telephone with optional capacity for tele-
writing or telecopying. Although judicial notice may be taken
of teleconferencing as a means of making business transac-
tions, there is no judicial notice that one was conducted in a
particular case (Expertravel and Tours, Inc. v. Court of Ap-
peals, 459 SCRA 147).

6. It can be judicially noticed that the scene of the rape


is not always nor necessarily isolated or secluded, for lust is
no respecter of time or place. T h e offense of rape can and has
been committed in places where people congregate, e.g. inside
a house where there are occupants, a five (5) meter room with
five (5) people inside, or even in the same room which the vic-
tim is sharing with the accused's sister (People v. Tundag, 342
SCRA 704).

7. The Court has likewise taken judicial notice of the


Filipina's inbred modesty and shyness and her antipathy
in publicly airing acts which blemish her honor and virtue.
(Ibid.).

8. The trial court properly took judicial notice that


Talamban, Cebu City is an urban area. Judicial notice is the
cognizance of certain facts which judges may properly take
and act on without proof because they already know them. A
municipal jurisdiction, whether designated as chartered city
or provincial capital, is considered as urban in its entirety if it
has a population density of at least 1,000 persons per square
kilometer. The City of Cebu was created on October 20, 1934
under Commonwealth A c t N o . 58. It is a highly urbanized city
classified as entirely urban. Thus, all its barangays, including
Talamban, are considered urban (Chiongbian-Oliva v. Repub-
lic, G.R. No. 163118, April 27, 2007).

9. It is of judicial notice that the judiciary is beset with


the gargantuan task in unclogging dockets, not to mention
JUDICIAL NOTICE AND ADMISSIONS 97
A. Judicial Notice

the shortage of judges occupying positions in far flung areas


such as in the herein case. A p a r t from presiding in the trial
of cases, justices and judges are required to resolve the same
within a prescribed period mandated by law (Government Ser-
vice Insurance System v. Vallar, G.R. No. 156023, October 18
2007).

10. Judicial notice can be taken of the fact that testi-


monies during trial are much more exact and elaborate than
those stated in sworn statements, usually being incomplete
and inaccurate for a variety of reasons, at times because of
partial and innocent suggestions or for want of specific inqui-
ries (Estioca v. People, G.R. No. 173876, June 27, 2008). It
is of judicial notice that sworn statements are almost always
incomplete, often inaccurate and generally inferior to the tes-
timony of witness in open court (People v. Sorilla, Jr., G.R.
No. 178540, June 27, 2008).

11. T h e Supreme Court has taken judicial notice of sci-


entific findings that drug abuse can damage the mental facul-
ties of the user it is beyond question therefore that any em-
ployee under the influence of drugs cannot possibly continue
doing his duties without posing a serious threat to the lives
and property of his co-workers and even his employer (Bug-
haw, Jr. v. Treasure Island Industrial Corporation, G.R. No.
173151, March 28, 2008).

12. It is a matter of judicial knowledge that persons


have killed or committed serious offenses for no reason at all
(People v. Zeta, G.R. No. 178541, March 27, 2008).
13. If counsel moves to another address without inform-
ing the court of that change, such omission or neglect is inex-
cusable and will not stay the finality of the decision. The court
cannot be expected to take judicial notice of the new address
of a lawyer who has moved or to ascertain on its own whether
or not the counsel of record has been changed and who the
new counsel could possibly be or where he probably resides or
holds office (Karen and Khristy Fishing Industry v. Court of
Appeals, G.R. Nos. 172760-61, October 15, 2007).
98 EVIDENCE
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14. Notwithstanding a person's standing in the busi-


ness community, the court cannot take judicial notice of said
person's home address or office after his departure from the
government as a cabinet member (Garrucho v. Court of Ap-
peals, 448 SCRA 165).
15. The Court ruled in a case, that a court may take ju-
dicial notice of a matter within the locality where the court
sits. Thus, it was held that the lower court cannot be faulted
for taking judicial notice that petitioner Saludo was the con-
gressman or representative of the lone district of Southern
Leyte at the time of the filing of his complaint and admitted
as a fact by the court a quo. In this connection, it consequently
held that, as such, petitioner Saludo's residence in Southern
Leyte, the district he was then representing, could be taken
judicial notice of. Courts are allowed "to take judicial notice of
matters which are of public knowledge, or are capable of un-
questionable demonstration, or ought to be known to judges
because of their judicial functions." Courts are likewise bound
to take judicial notice, without the introduction of evidence, of
the law in force in the Philippines, including its Constitution.

The concept of "facts of common knowledge" in the context


of judicial notice has been explained as those facts that are "so
commonly known in the community as to make it unprofit-
able to require proof, and so certainly known to as to make
it indisputable among reasonable men." Moreover, "though
usually facts of 'common knowledge' will be generally known
throughout the country, it is sufficient as a basis for judicial
notice that they be known in the local community where the
trial court sits." Certainly, the fact of petitioner Saludo being
the duly elected representative of Southern L e y t e at the time
could be properly taken judicial notice of by the court a quo,
the same being a matter of common knowledge in the commu-
nity where it sits.

"Further, petitioner Saludo's residence in Southern L e y t e


could likewise be properly taken judicial notice of by the court
a quo. It is bound to know that, under the Constitution, one
of the qualifications of a congressman or representative to the
JUDICIAL NOTICE AND ADMISSIONS 99
B. Judicial Admissions

House of Representatives is having a residence in the district


in which he shall be elected" (Saludo, Jr. v. American Express
International, Inc., 487 SCRA 462).

B. Judicial Admissions

1. Under Sec. 4 of Rule 129, judicial admissions are de-


scribed and defined as follows:

"Sec. 4. Judicial admissions. An admission, ver-


bal or written, made by a party in the course of the pro-
ceedings in the same case, does not require proof. The
admission may be contradicted only by showing that it
was made through palpable mistake or that no such ad-
mission was made."

To be a judicial admission under Sec. 4 of Rule 129, cer-


tain elements must be considered:
First, the same must be made by a party to the case. A d -
missions of a non-party do not fall within the definition of Sec.
4 of Rule 129.
Second, the admission to be judicial, must be made in the
course of the proceedings in the same case. Thus, an admis-
sion made in another judicial proceeding will not be deemed
a judicial admission in another case where the admission was
not made. Instead, it will be considered an extrajudicial ad-
mission for purposes of the other proceeding where such ad-
mission is offered.
It has been held that " . . . To be considered as a judicial
admission, the same must be made in the same case in which
it is offered (Programme Incorporated v. Province ofBataan,
G.R. No. 144635, June 26, 2006; Camitan v. Fidelity Insur-
ance Corporation, G.R. No. 163684, April 16, 2008).
Third, Sec. 4 of Rule 129 does not require a particular
form for an admission. Such form is immaterial because the
provision recognizes either a verbal or a written admission.
100 EVIDENCE
(The Bar Lectures Series)

2. A party may make judicial admissions in ( a ) the


pleadings, (b) during the trial, either by verbal or written
manifestations or stipulations, or (c) in other stages of the ju-
dicial proceeding (Sps. Binarao v. Plus Builders, Inc., G.R. No.
154430, June 16,2006).
3. The stipulation of facts at the pre-trial of a case con-
stitutes judicial admissions. The veracity of judicial admis-
sions require no further proof and may be controverted only
upon a clear showing that the admissions were made through
palpable mistake or that no admissions were made. Thus, the
admissions of parties during the pre-trial, as embodied in the
pre-trial order, are binding and conclusive upon them (Cuenco
v. Talisay Tourist Sports Complex, G.R. No. 174154, October
17,2008).

Admission in Drafted Documents


An admission made in a document drafted for purposes of
filing as a pleading but never filed, is not a judicial admission.
If signed by the party, it is deemed an extrajudicial admis-
sion. If signed by the attorney, it is not even an admission by
the party. The authority of the attorney to make statements
for the client extend only to statements made in open court or
in pleadings filed with the court (Jackson v. Schine Lexington
Corp, 305 Ky. 823, 205 S.W. 2d 1013).

Admissions Made in Pleadings and Motions


1. Admissions made in the pleadings of a party are
deemed judicial admissions (Ching v. Court of Appeals, 331
SCRA 16). The admission includes admissions made in the
complaint (Delfin v. Billones, G.R. No. 146550, March 17,
2006).

2. The admissions made by the respondent in its com-


plaint are judicial admissions which cannot be contradicted
unless there is a showing that it was made through palpable
mistake or that no such admission was made (Martinez v.
Court of Appeals, 438 SCRA 130; Luzon Development Bank v.
Conquilla, 470 SCRA 533).
JUDICIAL NOTICE AND ADMISSIONS 101
B. Judicial Admissions

3. T h e admissions made in a motion are judicial admis-


sions which are binding on the party who made them. Such
party is precluded from denying the same unless there is proof
of palpable mistake (Herrera-Felix v. Court of Appeals 436
SCRA 87).

4. An admission in the answer to the complaint takes


on the character of a judicial admission contemplated in Sec-
tion 4, Rule 129 of the Rules of Court. A judicial admission
conclusively binds the party making it. He cannot thereafter
contradict it. T h e exception is found only in those rare instanc-
es when the trial court, in the exercise of its discretion and
because of strong reasons to support its stand, may relieve
a party from the consequences of his admission. It cannot be
contradicted unless it can be shown that the admission, the
allegations, statements, or admissions contained in a plead-
ing are conclusive as against the pleader. A party cannot sub-
sequently take a position contrary to, or inconsistent with, his
pleadings (Heirs of Pedro Clemena v. Heirs of Irene B. Bien,
G.R. No. 155508, September 11, 2006).

As a general rule, facts alleged in a party's pleading are


deemed admissions of that party and are binding upon him, but
this is not an absolute and inflexible rule. An answer is a mere
statement of fact which the party filing it expects to prove,
but it is not evidence. A n d in spite of the presence of judicial
admissions in a party's pleading, the trial court is still given
leeway to consider other evidence presented (Spouses Santos
v. Spouses Lumbao, G.R. No. 169129, March 28, 2007).
5. An admission made in a pleading may be an actual
admission as when a party categorically admits a material
allegation made by the adverse party. An admission may like-
wise be inferred from the failure to specifically deny the ma-
terial allegations in the other party's pleadings. The rules of
civil procedure for example, require a defendant to specifical-
ly deny the material averments of the other party. "Material
averments in the complaint, other than those as to the amount
of unliquidated damages, shall be deemed admitted when not
specifically denied..." (Sec. 11, Rule 8, Rules of Court).
102 EVIDENCE
(The Bar Lectures Series)

Averments in Pleadings which are Not Deemed Admissions


There are averments in the pleadings which are not
deemed admitted even if the adverse party fails to make a
specific denial of the same like immaterial allegations (Sec. 11,
Rule 8, Rules of Court), conclusions, non-ultimate facts in the
pleading (Sec. 1, Rule 8, Rules of Court) as well as the amount
of unliquidated damages (Sec. 11, Rule 8, Rules of Court).

Implied Admissions of Allegations of Usury


Under Sec. 11 of Rule 8, if the complaint makes an al-
legation of usury to recover usurious interest, the defendant
must not only specifically deny the same but must likewise
do so under oath. Failure to make the proper denial under
oath would involve an implied admission of the allegation of
usury.

Implied Admissions of Actionable Documents


1. When an action or defense is founded upon a written
instrument, the genuineness and due execution of the same
instrument shall be deemed admitted unless the adverse par-
ty, under oath, specifically denies them and sets forth what
he claims to be the facts (Sec. 8, Rule 8, Rules of Court). T h e
failure to deny the genuineness and due execution of the said
documents amounts to a judicial admission pursuant to Sec-
tion 8, Rule 8 of the Rules of Court (Philippine National Bank
v. Refrigeration Industries, Inc., G.R. No. 156178, January 20,
2006).

2. The failure to deny the genuineness and due execu-


tion of an actionable document does not preclude a party from
arguing against the document by evidence of fraud, mistake,
compromise, payment, statute of limitations, estoppel, and
want of consideration (Acabal v. Acabal, 454 SCRA 555; Phil-
ippine National Bank v. Refrigeration Industries, Inc., G.R.
No. 156178, January 20,2006). He is however, precluded from
arguing that the document is a forgery because the genuine-
ness of the document has been impliedly admitted by his fail-
ure to deny the same under oath.
JUDICIAL NOTICE AND ADMISSIONS 103
B. Judicial Admissions

3. In a case, the plaintiff filed an action to collect upon


two promissory notes allegedly executed by the defendant. In
its answer, the main defense raised was that the obligation
had already been extinguished because of a Dacion en Pago
agreement which ceded and conveyed to the plaintiff certain
properties owned by the defendant. T h e defense also relied
upon a Confirmation Statement signed by the plaintiff ac-
knowledging that the defendant had no more loans in favor of
the plaintiff. After the plaintiff had rested its case, defendant
filed a demurrer to evidence pointing out that the failure of
the plaintiff to file a reply to the answer which raised the Da-
cion and Confirmation Statement constituted an admission of
the genuineness and due execution of said documents.

The plaintiff opposed the demurrer alleging among oth-


ers, that the documents relied upon by the defendant should
not have been taken into account by the trial court in resolv-
ing the demurrer not only because the documents have not
yet been offered in evidence but that since no Reply was filed
and served, then all the new matters alleged in the answer of
the defendant were already deemed controverted or denied.
Under Sec. 10 of Rule 6, if a party does not file a reply, all the
new matters alleged in the answer are deemed controverted.
The trial court nevertheless, ruled in favor of the defendant
and dismissed the case. On appeal, the Court of Appeals ruled
that the trial court erred in considering the documents relied
upon in the answer of the defendant because the genuineness
and due execution of such documents were not at issue.

One of the main issues raised in the Supreme Court was


whether or not the failure of the plaintiff to file a reply and
deny the Dacion and the confirmation statement under oath
constituted a judicial admission of the genuineness and due
execution of said documents. The Court ruled in the affir-
mative and in favor of the defendant. It further held that in
resolving a demurrer, the court should not only consider the
plaintiffs evidence. The court also should include judicial ad-
missions, matters of judicial notice, stipulations made during
the pre-trial, admissions, and presumptions (Casent Realty
104 EVIDENCE
(The Bar Lectures Series)

Development Corporation v. PhilBanking Corporation, G.R.


No. 150731, September 14, 2007).

Admissions in the Pre-trial of Civil Cases


1. One of the purposes of a pre-trial in a civil case is for
the court to consider the possibility of obtaining stipulations
or admissions of facts (Sec. 2[d], Rule 18, Rules of Court). A
pre-trial is mandatory (Sec. 2, Rule 18, Rules of Court) and
because it is mandatory, it is an important part of a civil pro-
ceeding. Admissions therefore in the pre-trial, as well as those
made during the depositions, interrogatories or requests for
admission, are all deemed judicial admissions because they
are made in the course of the proceedings of the case.

For instance, petitioner's admission as to the execution of


the promissory note at the pre-trial sufficed to settle the ques-
tion of the genuineness of signatures. T h e admission having
been made in a stipulation of facts at pre-trial by the parties,
it must be treated as a judicial admission (SCC Chemicals
Corporation v. Court of Appeals, 353 SCRA 70).

2. Admissions in pre-trial briefs are judicial admissions


and well-settled is the rule that an admission, verbal or writ-
ten, made by a party in the course of the proceedings in the
same case, does not require proof (Republic v. Sarabia, 468
SCRA 142; Marmont Resorts Hotel v. Guiang, 168 SCRA 373;
Ramos v. Spouses Dizon, G.R. No. 137247, August 7, 2006).
The parties are bound by the representations and state-
ments in their respective pre-trial briefs (Republic v. Sarabia,
468 SCRA 142), submission of which being mandatory in a
pre-trial of a civil case. Submission of the pre-trial briefs are
parts of the judicial proceedings. Under Sec. 6(b) of Rule 18, a
pre-trial brief shall contain among others, a summary of ad-
mitted facts and proposed stipulation of facts.

The admissions of the parties during the pre-trial as


embodied in the pre-trial order of the court are binding and
conclusive on them unless there is a clear showing that the
admission was entered through palpable mistake. Such ad-
JUDICIAL NOTICE A N D ADMISSIONS 105
B. Judicial Admissions

mission cannot be contradicted by the parties. The petitioners


are thus estopped from claiming otherwise (Heirs ofConahap
v. Heirs of Regatta, 458 SCRA 741).

Admissions in the Pre-trial of Criminal Cases

1. Although an admission made during the pre-trial


is deemed to have been made in the course of a judicial pro-
ceeding and is necessarily a judicial admission, an admission
made by the accused in the pre-trial of a criminal case is not
necessarily admissible against him. To be admissible, the con-
ditions set forth by Sec. 2 of Rule 118 must be complied with:
T h e pertinent rule provides:

"SECTION 2. Pre-trial agreement All agreements


or admissions made or entered during the pre-trial con-
ference shall be reduced in writing and signed by the
accused and counsel, otherwise they cannot be used
against the accused."

2. Does the above rule-requiring an admission made or


entered into during the trial conference to be reduced in writ-
ing and signed by the accused and his counsel before the same
maybe used in evidence against the accused, equally apply to
stipulation of facts made during the trial?
In resolving the question in the negative, the Supreme
Court ruled:

A stipulation of facts entered into by the prosecution


and defense counsel during trial in open court is auto-
matically reduced in writing and contained in the official
transcript of proceedings had in court. The conformity of
the accused in the form of his signature affixed thereto is
unnecessary in view of the fact . . . that an attorney who
is employed to manage a party's conduct of a lawsuit . . .
has prima facie authority to make relevant admissions
by pleadings, by oral or written stipulation . . . which,
unless allowed to be withdrawn are conclusive. In fact
judicial admissions are frequently those of counsel or of
the attorney of record, who is, for the purpose of the trial,
106 EVIDENCE
(The Bar Lectures Series)

the agent of his client. When such admissions are made,


they bind the client . . . (People v. Hernandez, G.R.
No. 108028, July 30, 1996; Silot v. De la Rosa, G.R. No.
159240, February 4, 2008).

Bar 2008
Bembol was charged with rape. Bembol's father, Ra-
mil, approached Artemon, the victim's father, during the
preliminary investigation and offered P I million to Arte-
mon to settle the case. Artemon refused the offer.
(a) xxx
(b) During the pre-trial, Bembol personally offered
to settle the case for P I million to the private prosecutor,
who immediately put the offer on record in the presence
of the trial judge. Is Bembol's offer a judicial admission of
his guilt?

Suggested answers:
(a) xxx
(b) Bembol's offer is a judicial admission. A judi-
cial admission is one that is verbal or written, made by
a party in the course of the proceedings in the same case
(Sec. 4, Rule 129, Rules of Court). Bembol is a party to
the case. The offer was made in the course of a judicial
proceeding.
An admission is judicial if made not only in the
pleadings, or by verbal or written manifestations in the
trial but also in a pre-trial of the case (Programme, Inc.
v. Province of Bataan, G.R. No. 144635, June 26, 2006).
Under Sec. 27 of Rule 130, the judicial admission could be
considered as an implied admission of guilt.

Implied Admissions in the Modes of Discovery


1. Admissions obtained through depositions, written
interrogatories or requests for admission are also considered
judicial admissions (Programme Incorporated v. Province of
Bataan, G.R. No. 144635, June 26, 2006).
JUDICIAL NOTICE AND ADMISSIONS 107
B. Judicial Admissions

2. Under Sec. 1 of Rule 26 of the Rules of Court, a par-


ty, at any time after the issues have been joined, may file and
serve upon any other party a written request for the admission
by the latter of the genuineness of any material and relevant
document described in and exhibited with the request. The
request for admission may also be of the truth of any material
and relevant matter of fact set forth in the request.

T h e party to whom the request is directed must file and


serve upon the party requesting the admission, a sworn state-
ment either denying specifically the matters of which an ad-
mission is requested or setting forth in detail the reasons why
he cannot truthfully either admit or deny those matters. The
sworn statement must be filed and served within the period
designated in the request which shall not be not less than
fifteen (15) days after service thereof, or within such further
time as the court may allow on motion. If the sworn statement
required is not filed and served, each of the matters of which
an admission is requested shall be deemed admitted (Sec. 2,
Rule 26, Rules of Court).
3. Under Sec. 3 of Rule 26, any admission made pursu-
ant to the request for admission is for the purpose of the pend-
ing action only. T h e admission shall not be considered as one
for any other purpose nor may the same be used against him
in any other proceeding.

Bar 1984
Through his lawyer plaintiff A sent to defendant B,
through B's counsel, a request for admission of certain
facts stated therein material to the case pending between
them. B did not reply at all.
On appeal from an adverse decision, A assigned as
error the trial court's disregard of the facts, the admission
of which was the subject of his unanswered request. A
contended that as his request for admission forms part of
the records of the case, although not formally submitted
in evidence, and the records do not show that the defen-
dant ever replied thereto, there was a clear judicial ad-
108 EVIDENCE
(The Bar Lectures Series)

mission by the defendant of all the material facts stated


in the request, and that had the trial court considered
such admissions, it would have been contrary to the find-
ings of fact.
Is the plaintiff correct?

Suggested answer:
The plaintiff is correct. Sec. 2 of Rule 26 of the Rules
of Court requires the other party to file and serve a sworn
statement either denying specifically the matter of which
an admission or requested or setting forth in detail the
reasons why he cannot truthfully either admit or deny
those matters. Under the same section, failure to do so
will result into an implied admission of each of the mat-
ters of which an admission is requested. Since the defen-
dant failed to comply with the requirements of the Rules,
he is deemed to have made an implied admission of the
matters subject of the request for admission.

Admissions in Amended Pleadings


When a pleading is amended, the amended pleading su-
persedes the pleading that it amends and the admissions j n
the superseded pleading may be received in evidence against
the pleader (Sec. 8, Rule 10, Rules of Court).

Nature of Admissions in Superseded Pleadings


It has been held that the admissions in a superseded
pleading are to be considered as extrajudicial admissions
which must be proven (Torres v. Court of Appeals, 131 SCRA
24). In Ching v. Court of Appeals (331 SCRA 16), the Supreme
Court held that pleadings that have been amended disappear
from the record, lose their status as pleadings and cease to be
judicial admissions, and to be utilized as extrajudicial admis-
sions, they must, in order to have such effect, be formally of-
fered in evidence.
JUDICIAL NOTICE AND ADMISSIONS 109
B. Judicial Admissions

Admissions in Dismissed Pleadings

Admissions made in pleadings that have been dismissed


are merely extrajudicial admissions (Servicewide Specialists,
Inc. v. Court of Appeals, 257 SCRA 643).

Hypothetical Admissions in a Motion to Dismiss


A motion to dismiss hypothetically admits the truth of
the allegations of the complaint (Magno v. Court of Appeals,
107 SCRA 285). It partakes of a demurrer which hypotheti-
cally admits the truth of the factual allegations made in the
complaint. However, the admission extends only to such mat-
ters of fact that have been sufficiently pleaded and not to mere
epithets charging fraud, allegations of legal conclusions or er-
roneous statements of law, inferences from facts not stated,
matters of evidence or irrelevant matters (De Dios v. Bristol
Laboratories, 55 SCRA 349). Only material allegations, not
conclusions in a complaint, are deemed admitted (Dalandan
v. Julio, 10 SCRA 400).

Admissions by Counsel
1. Admissions by a counsel are generally conclusive
upon a client (De Garcia v. Court of Appeals, 37 SCRA 129).
Even the negligence of counsel binds the client (Sarraga v.
Banco Filipino Savings & Mortgage Bank, 393 SCRA 566).
This rule is not however, without exception. In cases where
reckless or gross negligence of counsel deprives the client of
due process of law, or when its application will result in out-
right deprivation of the client's liberty or property, or when
the interests of justice so require, relief is accorded the client
who suffered by reason of the lawyer's gross or palpable mis-
take or negligence (Salazar v. Court of Appeals, 376 SCRA
459; Silot v. De la Rosa, G.R. No. 159240, February 4, 2008).
2. Admissions made for the purpose of dispensing with
proof of some facts are in the nature of judicial admissions.
Such admissions are frequently those of counsel or of the
attorney of record, who is, for the purpose of the trial, the
110 EVIDENCE
(The Bar Lectures Series)

agent of his client. When such admissions are made for the
purpose of dispensing with proof of some fact, they bind
the client, whether made during, or even after, the trial. A
stipulation of facts entered into by the prosecution and defense
counsel during trial in open court is automatically reduced
into writing and contained in the official transcript of the
proceedings had in court. The conformity of the accused in the
form of his signature affixed thereto is unnecessary in view of
the fact that an attorney who is employed to manage a party's
conduct of a lawsuit has prima facie authority to make relevant
admissions by pleadings, by oral or written stipulation, which
unless allowed to be withdrawn, are conclusive (Silot v. De la
Rosa, G.R. No. 159240, February 4, 2008).

Consequences of Judicial Admissions


1. A party who judicially admits a fact cannot later
challenge that fact, as judicial admissions are a waiver of
proof; production of evidence is dispensed with. A judicial ad-
mission removes the admitted fact from the field of controver-
sy. Consequently, an admission made in the pleadings cannot
be controverted by the party making such admission and are
conclusive to such party, and all proofs to the contrary or in-
consistent therewith should be ignored, whether objection is
interposed or not. T h e allegations, statements or admissions
contained in a pleading are conclusive as against the pleader.
A party cannot subsequently take a position contrary to or
inconsistent with what was pleaded (Alfelor v. Halasan, G.R.
No. 165987, March 31, 2006).

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 (Arroyo, Jr. v. Taduran, 421 SCRA 423) but despite
the presence of judicial admissions in a party's pleading, the
trial court is still given leeway to consider other evidence
presented (Santos v. Lumbao, G.R. No. 169129, March 28,
2007 citing Atillo v. CA, 266 SCRA 596; Philippine Health-
Care Providers, Inc. v. Estrada I Cara Health Services, G.R. No.
171052, January 28, 2008) because said admissions may not
JUDICIAL NOTICE AND ADMISSIONS 111
B. Judicial Admissions

necessarily prevail over documentary evidence (Asian Pacific


Planners v. City ofUrdaneta, G.R. No. 162525, September 23
2008).

3. In Canada v. All Commodities Marketing Corpora-


tion (G.R. No. 146141, October 17, 2008), the Court ruled:

"We have always adhered to the familiar doctrine


that an admission made in the course of the trial, either
by verbal or written manifestations, or stipulations, can-
not be controverted by the party making such admission;
they become conclusive on him, and all proofs submitted
by him contrary thereto or inconsistent therewith should
be ignored, whether an objection is interposed by the ad-
verse party or not."

4. Specifically, under Sec. 4, Rule 129 of the Rules of


Court, the following are the effects of judicial admissions:
( a ) T h e y do not require proof; and
( b ) T h e y cannot be contradicted because they are
conclusive upon the party making it.
T h e above rule however, admits of two exceptions, name-
ly:
( 1 ) upon showing that the admission was made
through palpable mistake, or
( 2 ) when it is shown that no such admission was
made.
5. T h e mistake that would relieve a party from the
effects of his admission is not any mistake. It must be one
that is "palpable," a mistake that is "clear to the mind or plain
to see" (New Oxford American Dictionary 2001 Ed. p. 1232).
It is a mistake that is "readily perceived by the senses or the
mind" (Oxford English Reference, Second Edition, Revised,
2002, p. 1049).
6. A party may also argue that he made no "such ad-
mission." This argument may be invoked when the statement
of a party is taken out of context or that his statement was
112 EVIDENCE
(The Bar Lectures Series)

made not in the sense it is made to appear by the other party


(Philippine Health-Care Providers, Inc. (Maxicare) v. Estra-
da ICara Health Services, supra). Here, the party upon whom
the admission is imputed does not deny making a statement.
What he denies is the meaning attached to his statement, a
meaning made to appear by the adverse party as an admis-
sion.
The Committee on the Revision of the Rules of Court ex-
plained the second exception in this wise:

". . . if a party invokes an "admission" by an adverse


party, but cites the admission "out of context," then the
one making the "admission" may show that he made no
"such" admission, or that his admission was taken out of
context.
". . .that the party can also show that he made no
"such admission", i.e., not in the sense that the admission
is made to appear.
That is the reason for the modifier "such" because if
the rule simply states that the admission may be contra-
dicted by showing that "no admission was made," the rule
would not really be providing for a contradiction of the
admission but just a denial." (Atillo v. Court of Appeals,
G.R. No. 119053, January 23, 1997; Sicam v. Jorge, G.R.
No. 159617, August 8, 2007)

C. A d m i s s i o n s , Confessions a n d the
Res Inter Alios Acta R u l e

"SECTION 26. Admissions of a party. The act,


declaration or omission of a party as to a relevant fact
may be given in evidence against the offeror.
Sec. 27. Offer of compromise is not admissible.
ln_cjyil cases, an offer of compromise is not an admis-
sion of any liability, and is not admissible in evidence
against the offeror.
In criminal cases, except those involving quasi-
offenses (criminal negligence) or those allowed by law
JUDICIAL NOTICE AND ADMISSIONS
C. Admissions, Confessions and the Res Inter Alios Acta Rule

to be compromised, an offer of compromise by the ac-


cused may be received in evidence as an implied admis-
sion of guilt.
A plea of guilty later withdrawn, or an unaccepted
offer of a plea of guilty to a lesser offense, is not ad-
missible in evidence against the accused who made the
plea or offer.
An offer to pay or the payment of medical, hospital
or other expenses occasioned by an injury is not admis-
sible in evidence as proof of civil or criminal liability for
the injury.
Sec. 28. Admission by third-party. Thejrights of
a party cannot be prejudiced by an act, declaration, or
omission of another, except as hereinafter provided.
Sec. 29. Admission by co-partner or agent. The
act or declaration of a partner or agent of the party with-
in the scope of his authority and during the existence
of the partnership or agency, may be given in evidence
against such party after the partnership or agency is
shown by evidence other than such act or declaration.
The same rule applies to the act or declaration of a joint
owner, joint debtor, or other person jointly interested
with the party.
Sec. 30. Admission by conspirator. The act or
declaration of a conspirator relating to the conspiracy
and during its existence, may be given in evidence
against the co-conspirator after the conspiracy is shown
by evidence other than such act or declaration.
Sec. 31. Admission by privies^ Where one de-
rives title to property from another, the act, declaration,
or omission of the latter, while holding the title, in rela-
tion to the property, is evidence against the former.
Sec. 32. Admission by tyjjlence.
silence An act or decla-
ration made in the presence and within the hearing or
observation of a party who does or says nothing when
the act or declaration is such as naturally to call for ac-
tion or comment if not true, and when proper and pos-
sible for him to do so, may be given in evidence against
him.
114 EVIDENCE
(The Bar Lectures Series)

Sec. 33. Confession. The declaration of an ac-


cused acknowledging his guilt of the offense charged,
or of any offense necessarily Included therein, may be
given in evidence against him.
Sec. 34. Similar acts as evidence. Evidence that
one did or did not do a certain thing at one time is not
admissible to prove that he did or did not do the same
or a similar thing at another time; but it may be received
to prove a specific intent or knowledge, identity, plan
system, scheme, habit, custom, usage, and the like.
Sec. 35. Unaccepted offer. An offer in writing to
pay a particular sum of money or to deliver a written
instrument or specific personal property is, if rejected
without valid cause, equivalent to the actual production
and tender of the money, instrument or property."

Concept of Admissions and Confessions


1. An admission is an act, declaration or omission of a
party as to a relevant fact (Sec. 26, Rule 130, Rules of Court).
It is a voluntary acknowledgment made by a party of the exis-
tence of the truth of certain facts which are inconsistent with
his claims in an action (Black's Law Dictionary, 5th Ed., 44).

In a confession, there is an acknowledgement of guilt; in


an admission, there is merely a statement of fact not directly
involving an acknowledgement of guilt or of the criminal in-
tent to commit the offense with which one is charged (Ladiana
v. People, 393 SCRA 419).

2. A confession is the declaration of an accused ac-


knowledging his guilt of the offense charged, or of any offense
necessarily included therein (Sec. 33, Rule 130, Rules of Court;
Tracy's Handbook, 62 Ed., 242). It is a statement by the ac-
cused that he engaged in conduct which constitutes a crime
(29A Am Jur 2d, Evidence, 708). Hence, when a person de-
clares in his Counter-Affidavit that he performed an act like
shooting the victim but denies that he did so with criminal
intent because the shooting was done in self-defense, the dec-
laration is merely an admission and not a confession (Ladiana
v. People, 393 SCRA 419).
JUDICIAL NOTICE AND ADMISSIONS
C. Admissions, Confessions and the Res Inter Alios Acta Rule

3. An admission in a general sense includes confes-


sions, the former being a broader term because accordingly, a
confession is also an "admission . . . by the accused of the fact
charged against him or of some fact essential to the charge" (4
Wigmore, Sec. 1050). A confession is a specific type of admis-
sion which refers only to an acknowledgment of guilt. As used,
the term admission refers to acknowledgment of facts which
although may be incriminating, falls short of an admission of
guilt.

4. An admission may be implied like an admission by


silence. A confession cannot be implied. It should be a direct
and positive acknowledgment of guilt because Sec. 33 of Rule
130 describes a confession as a "declaration" unlike an admis-
sion which is described not only as a "declaration" but also as
an "act" or an "omission" (Sec. 26, Rule 130, Rules of Court).

5. Applied to a criminal case, a confession is an ac-


knowledgment in express terms, by a party in a criminal case,
of his guilt of the crime charged, while an admission is a state-
ment by the accused, direct or implied, of facts pertinent to the
issue, and tending, in connection with proof of other facts, to
prove his guilt. In other words, an admission is something less
than a confession, and is but an acknowledgment of some fact
or circumstance which in itself is insufficient to authorize a
conviction, and which tends only to establish the ultimate fact
of guilt (San Vicente v. People, 392 SCRA 610 citing People v.
Licayan, 378 SCRA 281). A confession is an acknowledgment,
in express terms, of his guilt of the crime charged (People v.
Buntag, 427 SCRA 180). It is a declaration made at any time
by a person, voluntarily and without compulsion or induce-
ment, stating or acknowledging that he had committed or par-
ticipated in the commission of a crime (People v. Satorre, 408
SCRA 642).

/"Admissions Distinguished from Declarations


Against Interest
An admission is oftentimes confused with a declaration
against interest. They are however distinct from each other:
116 EVIDENCE
(The Bar Lectures Series)

- (a) To be admitted as a declaration against interest, the


declarant must be dead or unable to testify (Sec. 38, Rule 130,
Rules of Court); an admission is admissible even if the person
making the admission is alive and is in court;
(b) A declaration against interest is made before the
controversy arises; an admission is made at any time, even
during the trial;
(c) A declaration against interest is made against one's
pecuniary or moral interest; an admission is admissible as
long as it is inconsistent with his present claim or defense and
need not be against one's pecuniary or moral interest;
(d) A declaration against interest is admissible even
against third persons; an admission is admissible only against
the party making the admission;
( e ) A declaration against interest is an exception to the
hearsay rule; an admission is not, and is admissible not as an
exception to any rule.

Effects of Admissions
1. An admission by a party may be given in evidence
against him (Sec. 26, Rule 132, Rules of Court). H i s admission
is not admissible in his favor, because it would be self-serv-
ing evidence. Declarations of a party favorable to himself are
not admissible as proof of the facts asserted (Cole v. Ralph,
252 US 286, 64 L Ed 567, 40 SC Ct 312, USTC 312a, 3 AFTR
3051; State v. Warren, 242 Iowa 1176, 47 NW2d 221; Jones v.
Dugan, 124 Md. 346, 350, 92 A. 775).

2. Under Rule 130, Section 26, the act, declaration or


omission of a party as to a relevant fact may be given in evi-
dence against him. This rule is based on the notion that no
man would make any declaration against himself, unless it
is true (Republic v. Bautista, G.R. No. 169801, September 11,
2007).
JUDICIAL NOTICE AND ADMISSIONS
C. Admissions, Confessions and the Res Inter Alios Acta Rule

-/Classification of Admissions and Confessions


1. A n admission may be express or implied. An express
admission is a positive statement or act. An implied admis-
sion is one which may be inferred from the declarations or
acts of a person. A confession cannot be implied. It must be a
positive acknowledgment of guilt and cannot be inferred. Sec.
33 of Rule 130 refers to a confession as a "declaration" which
connotes an affirmative statement from the person making
the confession.
2. An admission may be judicial or extrajudicial. An
admission is judicial when made in the course of a judicial
proceeding. An admission is extrajudicial when made out of
court or even in a proceeding other than the one under con-
sideration (Perry v. Simpson, Conn. 313). A confession may
be also judicial or extrajudicial for the same reasons (29A Am
Jur2d,711).
3. An admission may also be adoptive. This admission
occurs when a person manifests his assent to the statements
of another person. T h e admission may be received in evidence
if it can be shown that a party adopted the statements as his
own (Fed. Evid.R. 801[d][2][B]; Black's Law Dictionary, 5th
Ed., 44).
( a ) A party may, by his words or conduct, volun-
tarily adopt or ratify another's statement. Where it ap-
pears that a party clearly and unambiguously assented
to or adopted the statements of another, evidence of those
statements is admissible against him. This is the essence
of the principle of adoptive admission.
An adoptive admission is a party's reaction to a state-
ment or action by another person when it is reasonable to
treat the party's reaction as an admission of something
stated or implied by the other person. By adoptive admis-
sion, a third person's statement becomes the admission of
the party embracing or espousing it. Adoptive admission
may occur when a party:
( a ) expressly agrees to or concurs in an oral
statement made by another;
118 EVIDENCE
(The Bar Lectures Series)

(b) hears a statement and later on essentially


repeats it;
(c) utters an acceptance or builds upon the as-
sertion 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. Kenrick Development Corpo-
ration, G.R. No. 149576, August 8, 2006).
Examples of adoptive admissions are the alleged admis-
sions made by President Estrada when his options had dwin-
dled when, according to the Angara Diary, the armed forces
withdrew its support from him as President and Commander-
in-Chief. Thus, Executive Secretary Angara had to allegedly
ask Senate President Pimentel to advise petitioner to consider
the option of "dignified exit or resignation." President 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, 356 SCRA 108).
Besides, he had several opportunities according to the
Court, to object to the admissibility of the diary, but did not
do so seasonably. It is too late in the day to object to raise his
objections in an omnibus motion. T h e Angara Diary said the
Court also contains direct statements of the President which
could be categorized as admissions of a party like: ( a ) his pro-
posal for a snap election in which he would not participate; (b)
his statement that he would leave by Monday if the second
envelope would be opened by Monday; and (c) statements like:
Pagod na pagod na ako. Ayoko na, masyado nang masakit.
Pagod na ako sa red tape, bureaucracy, intriga. I just want
to clear my name, then I will go." (Ibid.). These words were
taken by the Court as admissions indicative of his resignation
from office.
JUDICIAL NOTICE AND ADMISSIONS
C. Admissions, Confessions and the Res Inter Alios Acta Rule

To rebut the argument that the diary of Angara is not the


diary of the former president and thus, could not be admis-
sible against him, the Court declared:

"...The argument overlooks the doctrine of adoptive


admission. An adoptive admission is a party's reaction to
a statement or action by another person when it is rea-
sonable to treat the party's reaction as an admission of
something stated or implied by the other person (Estrada
v. Desierto, Ibid.).

Effect of Extrajudicial Confession of Guilt; Corpus Delicti


1. W h i l e a judicial confession may sustain a conviction,
an extrajudicial confession is not sufficient for conviction. The
rule requires that the confession be corroborated by evidence
of corpus delicti (Sec. 3, Rule 133, Rules of Court).
2. Corpus delicti is the 'body of the crime' or the offense
(People v. Strook, 347 III. 460, 170 N.E. 821). Strictly speak-
ing, it means the actual commission of the crime and someone
criminally responsible therefor (People v. Stoll, 84 Cal App.
99, 257 Pac. 583 cited by Underhill, Criminal Evidence, 34).
It is the substance of the crime; the fact that a crime has actu-
ally been committed (People v. Gutierrez, 258 SCRA 70; People
v. De Leon, G.R. No. 180762, March 4, 2009).
Corpus delicti has two elements: (1) proof of the occur-
rence of a certain event for example, that a man has died
or a building has been burned; and (2) some person's criminal
responsibility for the act (People v. Boco, 309 SCRA 42; People
v. Base, 329 SCRA 158).
3. Corpus delicti, and all the elements thereof, may be
proved by circumstantial evidence but such proof must be con-
vincing and compatible with the nature of the case (Underhill,
Criminal Evidence, 37).
4. While an extrajudicial confession will not be suffi-
cient for conviction unless corroborated by evidence of corpus
delicti (Sec. 3, Rule 133, Rules of Court), a judicial confession
will support conviction without proof of corpus delicti inde-
120 EVIDENCE
(The Bar Lectures Series)

pendent of the judicial confession (State v. Dena, 28 N. Mexico,


479, 214, Pac. 583).
5. In the prosecution for illegal sale of dangerous drugs,
it is not enough to prove that the transaction took place and
that the buyer and seller were identified. The corpus delicti
must be offered in evidence. Here the corpus delicti is the ille-
gal drug. To prove the corpus delicti, a special procedure must
be followed. The police officer should comply with the proper
procedure in the custody of the seized drugs. After seizure
and confiscation, the drugs must be physically inventoried
and photographed in the presence of the accused, and or his
representative, who shall be required to sign the copies of the
inventory and be given a copy thereof. T h e failure to comply
with such a requirement raises a doubt whether what was
submitted for laboratory examination and presented in court
were the ones actually recovered from the accused. Failure of
the officer to comply with this procedure negates the presump-
tion that official duties have been performed (People v. Naza-
reno, G.R. No. 174771, September 11, 2007; People v. Santos,
G.R. No. 175593, October 17, 2007; People v. Cabacaba, G.R.
No. 171310, July 9, 2008; People v. Magat, G.R. No. 179939,
September 29, 2008; People v. Dela Cruz, G.R. No. 181545,
October 8, 2008).

6. In theft, corpus delicti has two elements, namely: ( 1 )


that the property was lost by the owner, and ( 2 ) that it was
lost by felonious taking (Gulmatico v. People, G.R. No. 146296,
October 15, 2007).

7. The corpus delicti in the crime of illegal possession


of firearms is the accused's lack of license or permit to possess
or to carry the firearm, as possession itself is not prohibited by
law (Sayco v. People, G.R. No. 159703, March 3, 2008).

8. The accused in one case argues that inasmuch as


there is no conclusive evidence of the death of the deceased be-
cause his body was never found, neither was the place where
he is supposed to have been buried indicated, hence, corpus
delicti was not established.
JUDICIAL NOTICE AND ADMISSIONS
C. Admissions, Confessions and the Res Inter Alios Acta Rule

T h e Court ruled that it is not necessary to recover the


body or to show where it can be found in a case of murder or
homicide. T h e r e are cases like death at sea, where the finding
or the recovery of the body is impossible. It is enough that the
death and the criminal agency causing it be proven. Quoting
Wharton on Criminal Evidence, V o l . 2, Sec. 871, pp. 1505-1506,
the Supreme Court also held that by the weight of authority, it
is a rule now established that the element of death in the cor-
pus delicti may be established by circumstantial evidence. To
establish the corpus delicti by circumstantial evidence, facts
are admissible to show the impossibility of rescue, as at sea,
to show the existence and extent of wounds, and deceased's
condition of health; and to show that the wound was sufficient
to cause death and that the party was reported dead. Death is
sufficiently shown by the testimony of a witness that he saw
the flash and heard the report, and that the deceased fell to
the ground, declaring that he was shot and that the accused
shot him (People v. Sasota, 91 Phil. Ill; People v. Agsunod,
Jr., 306 SCRA 612).

Drawing from the early case of Sasota the Court ruled


that in a case of murder or homicide, it is not necessary to
recover the body of the victim or show where it can be found.
It is enough that the death and the criminal agency causing
death is proven. In the Sasota case, the prosecution witnesses
saw the four (4) armed accused forcibly took the victim from
his house to a lake, beat him up all the way to the boat. While
sailing, the accused continued ill-treating the victim until the
latter died. The body of the victim was never found (Also cited
in People v. Roluna, G.R. No. 101797, March 24, 1994).
In People v. Ansang (93 Phil. 44), the appellant while rid-
ing on a vinta ignited home-made bombs and threw them at
the victims in another boat. While the parts of the boat were
later found, the passengers were never seen again. Holding
that the corpus delicti was shown by the facts and that the
victims died, the Court convicted the appellant of multiple
murder.
9. The rule on extrajudicial confession in the Rules of
Court must be considered together with applicable constitu-
122 EVIDENCE
(The Bar Lectures Series)

tional and substantive laws which must be complied with for


the confession to be admissible. For instance, Sec. 2(d) of Re-
public Act 7438 (Act Defining Certain Rights of Persons, A r -
rested, Detained or Under Custodial Investigation), provides:

"Any extrajudicial confession made by a person ar-


rested, detained, or under custodial investigation shall be
in writing and signed by such person in the presence of
his counsel or in the latter's absence, upon a valid waiver,
and in the presence of any of the parents, older brothers
and sisters, his spouse, the municipal mayor, the munici-
pal judge, district school supervisor, or priest or minister
of the gospel as chosen by him; otherwise, such extraju-
dicial confession shall be inadmissible as evidence in any
proceeding."

Bar 2006
What are the requirements in order that an admis-
sion of guilt of an accused during a custodial investigation
be admitted in evidence?

Suggested answer:
(1) Any extrajudicial confession made by a person
arrested, detained, or under custodial investigation shall
be in writing and signed by such person in the presence of
his counsel or in the latter's absence, upon a valid waiver,
and in the presence of any of the parents, older brothers
and sisters, his spouse, the municipal mayor, the munici-
pal judge, district school supervisor, or priest or minister
of the gospel as chosen by him; otherwise, such extraju-
dicial confession shall be inadmissible as evidence in any
proceeding (Sec. 2[d], RA. No. 7438).
(2) The confession must be corroborated by evi-
dence of corpus delicti (Sec. 3, Rule 133, Rules of Court).

Bar 2008
The mutilated cadaver of a woman was discovered
near a creek. Due to witnesses attesting that he was the
last person seen with the woman when she was still alive,
JUDICIAL NOTICE AND ADMISSIONS
C. Admissions, Confessions and the Res Inter Alios Acta Rule

Carlito was arrested within five (5) hours after the discov-
ery of the cadaver and brought to the police station. The
crime laboratory determined that the woman had been
raped.
While in police custody, Carlito broke down in the
presence of an assisting counsel and orally confessed to
the investigator that he had raped and killed the woman,
detailing the acts he had performed up to his dumping of
the body near the creek. He was genuinely remorseful.
During the trial, the state presented the investigator to
testify on the oral confession of Carlito. Is the oral confes-
sion admissible as evidence of guilt?

Suggested answer:
The oral confession is not admissible as evidence of
guilt. The confession is in the nature of an extrajudicial
confession before an investigator while under custodial
investigation. Hence, the statutory provisions under R.A.
No. 7438 (Sec. 2[d]) will have to be complied with. Under
said law, any extrajudicial confession made by a person
arrested, detained, or under custodial investigation shall
be in writing and signed by such person in the presence of
his counsel. An oral confession does not comply with the
mandatory provisions of the law. Under R.A. No. 7438,
the confession is inadmissible in evidence in any proceed-
ing (Sec. 2[d], R.A. No. 7438).

10. T h e above rights refer to an extrajudicial confession


of a person arrested, detained or is under custodial investiga-
tion because a confession made by the accused before he is
placed under custodial investigation need not comply with the
above.
If he talks to a person in a private meeting with for in-
stance, a municipal mayor spontaneously, fully and volun-
tarily confessing the crime to his commission of a crime, the
constitutional requirements in a custodial investigation do
not apply. When the accused talked to the mayor as a confi-
dant and not as a law enforcement officer, the uncounselled
confession did not violate his constitutional rights. Constitu-
124 EVIDENCE
(The Bar Lectures Series)

tional procedures on custodial investigation do not apply to


spontaneous statements, not elicited through questioning by
authorities, but given in an ordinary manner whereby the ac-
cused orally admitted having committed the crime. Hence,
such confession is admissible in evidence against him, even
when he did so without the assistance of counsel (People v.
Cabiles, 284 SCRA 199).
11. Custodial investigation has been described as one
which involves any questioning initiated by law enforcement
officers after a person has been taken into custody or other-
wise deprived of his freedom of action in any significant way.
It is only after the investigation ceases to be a general inquiry
into an unsolved crime and begins to focus on a particular
suspect, the suspect is taken into custody, and the police car-
ries out a process of interrogations that lend itself to elicit-
ing incriminating statements, that the rule begins to operate
(Aquino v. Paiste, G.R. No. 147782, June 25, 2008).

Note that Republic A c t N o . 7438 (Sec. 2[f]) has extended


the meaning of 'custodial investigation' to include the practice
of issuing an invitation to a person who is investigated in con-
nection with an offense he is suspected to have committed.

12. Voluntary admissions made by the accused such as


his possession of a firearm used in the commission of a crime
and the subsequent surrender of the firearm at a time when
he was already under custodial investigation are not admis-
sible against the accused. At the time the admissions w e r e
made, the police had already begun to focus on the accused
and were carrying out the process of interrogations that was
lending itself to eliciting incriminating statements and evi-
dence. The investigation thus was no longer a general inqui-
ry into an unsolved crime as the accused was already being
held as a suspect for the alleged killing of the victims. Con-
sequently, the rights of a person under custodial investiga-
tion, including the right to counsel, have already attached in
his favor. A n y waiver of these rights should be in writing and
undertaken with the assistance of counsel. Admissions under
custodial investigation without the assistance of counsel are
barred as evidence. The records do not disclose any indication
JUDICIAL NOTICE AND ADMISSIONS
C. Admissions, Confessions and the Res Inter Alios Acta Rule

that the accused had waived his right to counsel, hence, his
admissions are inadmissible against him. A suspect's confes-
sion, whether verbal or non-verbal, when taken without the
assistance of counsel without a valid waiver of such assistance
regardless of the absence of such coercion, or the fact that it
had been voluntarily given, is inadmissible in evidence, even
if such confession were gospel truth (People v. Ador, 432 SCRA
1).

Admission by Silence
1. Admission by silence as expressed in Sec. 32 of Rule
130 of the Rules of Court provides:

"SECTION 32. Admission by silence. An act or


declaration made in the presence and within the hear-
ing or observation of a party who does or says noth-
ing when the 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, may be given in evidence
against him."

2. Admission by silence has been traditionally received


even in common law as admissible evidence. The usual pattern
for its admissibility involves a statement by a person in the
presence of a party to the action, criminal or civil. The state-
ment contains assertions against the party, which, if untrue
would be sufficient cause for the party to deny. His failure to
speak against the statement is admissible as an admission.
Suppose upon seeing a policeman, a bystander, in the
presence of other people, points to a man and accuses him as
the killer of another man found dead the night before. The man
pointed at does not respond. He does not deny the accusation.
His failure to respond may be given in evidence against him.
The idea of the rule on admission by silence is that if an ac-
cusation is made, and a reasonable person would have denied
the same if it were false, the failure to deny the accusation by
the person accused may be construed as an implied admission
of the truth of the accusation and may be given in evidence
against him.
126 EVIDENCE
(The Bar Lectures Series)

3. Not every silence is an implied admission. For in-


stance, the silence of a person under investigation for the com-
mission of an offense should not be construed as an admission
by silence because of constitutional reasons (Sec. 2[b], R.A.
7438).
4. For silence to be deemed an admission, it is neces-
sary: (a) that he heard and understood the statement; (b) that
he was at liberty to make a denial; (c) that the statement was
about a matter affecting his rights or in which he was inter-
ested and which naturally calls for a response; ( d ) that the
facts were within his knowledge; and ( e ) that the fact admit-
ted from his silence is material to the issue (People v. Paragsa,
84 SCRA 105).

Thus, in one case, despite the many opportunities giv-


en to the respondent, he refused to comment and present his
side. The gravity of the charges and the weight of the evidence
against him would have prompted an innocent man to come
out and clear his name. However, he opted to maintain his
silence. His silence can easily be interpreted as an admission
of guilt (Ortiz v. De Guzman, A.M. No. P-03-1708, February
16, 2005; Office of the Court Administrator v. Bernardino, 450
SCRA 88).

Res Inter Alios Acta; Branches


1. The expression if fully expressed reads: res inter
alios acta alteri nocere non debet which literally means that
"things done between strangers ought not to injure those who
are not parties to them" (Black's Law Dictionary, 5th Ed.,
1178; Dynamic Signmaker Outdoor Advertising Services, Inc.
v. Potongan, 461 SCRA 328).

2. The res inter alios acta rule has two branches, name-
ly:
( a ) The rule that the rights of a party cannot be
prejudiced by an act, declaration, or omission of another
(Sec. 28, Rule 130, Rules of Court).
JUDICIAL NOTICE AND ADMISSIONS
C. Admissions, Confessions and the Res Inter Alios Acta Rule

( b ) The rule that evidence of previous conduct or


similar acts at one time is not admissible to prove that
one did or did not do the same act at another time (Sec.
34, Rule 132, Rules of Court).
3. T h e provisions on res inter alios acta read:

y "SECTION 28. Admission by third party. The


rights of a third party cannot be prejudiced by an act,
declaration or omission of another, except as hereinaf-
ter provided."
"Sec. 34. Similar acts as evidence. Evidence
that one did or did not do a certain thing at one time
is not admissible to prove that he did or did not do the
same or a similar thing at another time; but it may be re-
ceived to prove a specific intent or knowledge, identity,
plan, system, scheme, habit, custom or usage, and the
like."

4. T h e first branch is a very simple and logical rule


which holds that whatever one says or does or omits to do
should only affect him but should not affect or prejudice oth-
ers. In other words, both common reason and fairness demand
that a man's actions and declarations should affect him alone
and should not affect others. Thus, if X makes a statement
before the media admitting his participation in a previous
murder, his statement is admissible against him under Sec.
26 of Rule 130. T h e rest of his statement pointing to Y and Z
as co-participants in the murder are not admissible against Y
and Z under the first branch of the res inter alios acta rule in
Sec. 28 of Rule 130. Under this rule, the statement of X should
not affect or prejudice Y and Z.
5. The above rule has reference only to extrajudicial
declarations. Hence, statements made in open court by a wit-
ness implicating persons aside from his own judicial admis-
sions, are admissible as declarations from one who has per-
sonal knowledge of the facts testified to.
EVIDENCE
128
(The Bar Lectures Series)

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

Suggested answer:
(a) xxx
(b) The demurrer should be denied. The reliance
on the rule on res inter alios acta is misplaced. The rule
applies only to extrajudicial declarations and not to state-
ments made in open court. Y testified as a witness and
was in fact, cross-examined.

Exceptions to the Res Inter Alios Acta Rule (first branch)


1. The first branch of the rule admits of certain excep-
tions, to wit:

( a ) admission by a co-partner or agent (Sec. 29,


Rule 130);

(b) admission by a co-conspirator (Sec. 30, Rule


130); and

(c) admission by privies (Sec. 31, Rule 130).


2. The basis for admitting the above admissions is that
the person making the statement is under the same circum-
stances as the person against whom it is offered. Such cir-
JUDICIAL NOTICE AND ADMISSIONS
C. Admissions, Confessions and the .Res Inter Alios Acta Rule

cumstances g i v e him substantially the same interest and the


same motive to make a statement about certain matters (4
Wigmore, Sec. 1080a, 140).

Admissions by a Co-partner or Agent

1. An agent performs some service in representation


or on behalf of his principal (Art. 1868, Civil Code of the
Philippines). T h e agent therefore, is in legal contemplation, a
mere extension of the personality of the principal and unless
the agent acts in his own name, the principal must comply
with all the obligations which the agent may have contracted
within the scope of his authority (Art. 1883; Art 1910, Civil
Code of the Philippines). Hence, whatever is said by an agent
to a third person, during the course of the agency and within
the scope of his actual or apparent authority, relative to the
business contemplated by the agency, is for legal purposes
also the statement of the principal and is therefore, admissible
against said principal (29A Am Jur 29, Evidence, 815 citing
Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 62 L Ed
260, 38 S Ct 65).

2. T h e relationship among partners is on the same


footing with the relationship of an agent to his principal. Both
the contracts of agency and partnership involve fiduciary re-
lationships. Under the law (Art. 1818, Civil Code of the Phil-
ippines), every partner is an agent of the partnership for the
purpose of its business and the act of the partner in carrying
out the usual course of business binds the partnership as a
rule. Hence, under the same principle governing an agency,
the declarations of a partner may be admissible against the
other partners or the partnership.
3. However, not every declaration or act made or done
by a partner or agent is admissible against the other partners
or the principal. For the admission of a co-partner or agent to
be admissible, the following requisites must concur:
( a ) The declaration or act of the partner and agent
must have been made or done within the scope of his au-
thority;
130 EVIDENCE
(The Bar Lectures Series)

(b) The declaration or act of the partner and agent


must have been made or done during the existence of the
partnership or agency (while the person making the dec-
laration was still a partner or an agent); and
(c) The existence of the partnership or agency is
proven by evidence other than the declaration or act of the
partner and agent (Sec. 29, Rule 130, Rules of Court).
4. A n y declaration made before the partnership or
agency existed, or those made after, are not admissible against
the other partners or the principal but remains admissible
against the partner or agent making the declaration. It is also
necessary for the application of the exception that the proof of
the agency or partnership be from a source independent of the
declaration made by the partner or agent.
Thus, if after the partnership is dissolved and liquidated,
A A , a former partner in A B C Partnership, admits before a
police investigator that he and his partners were engaged in
smuggling highly dutiable imported cigarettes while the part-
nership was operating a buy and sell business, the extraju-
dicial declarations of AA are not admissible against BB and
CC, his former partners. His declarations are nevertheless,
admissible against him.

5. The above rules also apply to the declarations or


acts of a joint owner, joint debtor, or other persons jointly in-
terested with the party (Sec. 29, Rule 130, Rules of Court).

Admissions by a Co-conspirator

1. A conspiracy exists when two or more persons come


to an agreement concerning the commission of a felony and
decide to commit it (Art. 8, Revised Penal Code). Once the con-
spiracy is proven, the act of one is the act of all. T h e statement
therefore of one, may be admitted against the other co-con-
spirators as an exception to the rule of res inter alios acta.
2. Assume that two months after a successful bank
robbery, A was arrested as a direct participant in the crime.
JUDICIAL NOTICE AND ADMISSIONS
C. Admissions, Confessions and the Res Inter Alios Acta Rule

During a television interview, he admitted his participation in


the robbery. He also implicated B and C as his other compan-
ions in planning and executing the robbery. Is his statement
admissible? T h e statement is admissible as to him (Sec. 26,
Rule 130) but not as to B and C (Sec. 28, Rule 130).

To be admissible against B and C, the following must


concur:

( a ) T h e declaration or act be made or done during


the existence of the conspiracy;

( b ) T h e declaration or act must relate to the con-


spiracy; and

(c) T h e conspiracy must be shown by evidence oth-


er than the declaration or act (Sec. 30, Rule 130, Rules of
Court).

Observe that the declaration of A was made long after


the conspiracy was over. It then was no longer made during
the existence of the conspiracy. In fact, at the time of the dec-
laration, A was no longer a co-conspirator. Even assuming
that the conspiracy can be proven by independent evidence
and even if his statement was related to the conspiracy, the
declaration is not admissible as an exception to the rule of res
inter alios acta.

Incriminating declarations of co-conspirators made in


the absence of or without the knowledge of the others after
the conspiracy has come to an end is inadmissible (US v. Ner-
linger[CA2 NY] 862 F2d 967, 27 Fed Rules Evidence Serv 271;
29A Am Jur, Evidence, 838).
The arrest of the declarant is often found to terminate
the declarant's participation in the conspiracy so that the
declarant's post arrest statements do not qualify as admis-
sible co-conspirator statements (29AAm Jur, Evidence, 840).
An extrajudicial confession made by an accused is admissible
against him but not admissible against his co-accused who
took no part in the confession (Sparfv. US, 156 US 51). An ex-
trajudicial confession is binding only upon the confessant and
132 EVIDENCE
(The Bar Lectures Series)

is not admissible against his co-accused (People v. Raquel, 265


SCRA 248). As against the latter, the confession is hearsay
(People v. Camat, 256 SCRA 52).

Bar 1991
During custodial investigation at the Western Police
District, Mario Margal was informed of his constitutional
right to remain silent and to have competent and inde-
pendent counsel. He decided to waive his right to counsel
and proceeded to make a statement admitting commis-
sion of a robbery. In the same statement, he implicated
Antonio Carreon, his co-conspirator in the crime.
(a) xxx
(b) Is it (the testimony of Mario Margal) admis-
sible against Carreon as an exception to the res inter alios
acta rule?

Suggested answer:
It is not admissible against Carreon. To be admis-
sible against Carreon, the following requisites must con-
cur:
(i) The declaration or act be made or done during
the existence of the conspiracy;
(ii) The declaration or act must relate to the con-
spiracy; and
(iii) The conspiracy must be shown by evidence oth-
er than the declaration or act (Sec. 30, Rule 130, Rules of
Court).
Assuming that the conspiracy may be shown by evi-
dence other than the extrajudicial statement of Margal,
the same was made by him after the conspiracy had al-
ready ceased.

3. The rule requiring the concurrence of the above ele-


ments does not apply when the co-accused takes the witness
stand and repeats his extrajudicial confession as a witness.
The declarations referred to under Sec. 30 of Rule 130 are
JUDICIAL NOTICE AND ADMISSIONS
C. Admissions, Confessions and the Res Inter Alios Acta Rule

merely extrajudicial statements or declarations. When he tes-


tifies as a witness, his statements become judicial and are ad-
missible not only against him but also against his co-accused.
This is because the statements by witnesses in open court are
admissible as testimonies of a person based on his personal
perceptions and knowledge pursuant to Sec. 36 of Rule 130,
Rules of Court.

Jurisprudence holds that the general rule is that the ex-


trajudicial confession or admission of one accused is admis-
sible only against the said accused but is inadmissible against
the other accused. H o w e v e r , if the declarant/admitter repeats
in court his extrajudicial confession during trial and the oth-
er accused is accorded the opportunity to cross-examine the
admitter, such confession or admission is admissible against
both accused. T h e erstwhile extrajudicial confession or admis-
sion when repeated during the trial is transposed into judicial
admissions (People v. Buntag, 427 SCRA 180).

4. T h e Supreme Court also held in one case that a dis-


tinction must be made between an extrajudicial and judicial
confession. An extrajudicial confession may be given in evi-
dence against the confessant but not against his co-accused
since the latter are not afforded the opportunity to cross-exam-
ine him. A judicial confession is admissible against the declar-
ant's co-accused since the latter are afforded the opportunity
to cross-examine the former. Sec. 30 of Rule 130 applies only to
extrajudicial admissions and not to testimonies at trial where
the party adversely affected has the opportunity to cross-ex-
amine the declarant (People v. Palijon, 343 SCRA 486). When
the extrajudicial admission of a conspirator is confirmed at
the trial, it ceases to be hearsay. It becomes instead a judicial
admission, being a testimony of an eyewitness admissible in
evidence against those it implicates. Here, the extrajudicial
confession was affirmed by him in open court during the trial.
Thus, such confession already partook of judicial admission
(Abay, Jr. v. People, G.R. No. 165896, September 19, 2008).
An extrajudicial confession by an accused implicating
another, may not be utilized unless repeated in open court,
134 EVIDENCE
(The Bar Lectures Series)

or when there is an opportunity for the co-accused to cross-


examine the confessant on his extrajudicial statements. It is
considered hearsay as against said co-accused under the res
inter alios acta rule, which ordains that the rights of a party
cannot be prejudiced by an act, declaration, or omission of an-
other (People v. Janson, 400 SCRA 584).
5. Assuming that the statement relating to the con-
spiracy was made by a conspirator during the existence of the
conspiracy, for the statement to be admitted, the extrajudicial
statements of the co-conspirator must be proven by evidence
other than the admission (Sec. 30, Rule 130, Rules of Court;
US v. Arias-Villanueva [CA9 Or] 998 F2d 1491; 29A Am Jur
2d, 847). If the only evidence of the conspiracy is the extra-
judicial declaration of the declarant, the statements are not
admissible against the others.
6. In a case, accused-appellant was indicted for par-
ricide for allegedly killing his father in conspiracy with two
other persons who are brothers and also his co-accused in a
separate information for murder. The prosecution, presented
as its witness among others, the accused-appellant's wife. It
also presented the affidavits containing the extra-judicial con-
fessions of the other co-accused who pointed to the accused-
appellant as involved in the crime. T h e extra-judicial confes-
sions were made after the crime was consummated. T h e two
brothers were, however, not presented by the prosecution on
the witness stand.

In indicting accused-appellant, the prosecution relied


heavily on the affidavits executed by the two other accused.
The Solicitor General, in advocating the admissibility of the
sworn statements of the brothers, cites Section 30, Rule 130
of the Rules of Court which provides that "[t]he act or declara-
tion of a conspirator relating to the conspiracy and during its
existence, may be given in evidence against the co-conspirator
after the conspiracy is shown by evidence other than such act
or declaration."

The Court held that the inapplicability of the provision


relied upon was clearly apparent. T h e confessions were made
JUDICIAL NOTICE AND ADMISSIONS
C. Admissions, Confessions and the Res Inter Alios Acta Rule

after the conspiracy had ended and after the consummation of


the crime. Hence, it cannot be said that the execution of the
affidavits w e r e acts or declarations made during the conspira-
cy's existence (People v. Quidato, Jr., 297 SCRA 1).

7. T h e res inter alios acta rule provides that the rights


of a party cannot be prejudiced by an act, declaration, or omis-
sion of another. Consequently, an extrajudicial confession is
binding only upon the confessant and is not admissible against
his co-accused. T h e reason for the rule is that, on a principle
of good faith and mutual convenience, a man's own acts are
binding upon himself, and are evidence against him. So are
his conduct and declarations. Y e t it would not only be rightly
inconvenient, but also manifestly unjust, that a man should
be bound by the acts of mere unauthorized strangers; and if a
party ought not to be bound by the acts of strangers, neither
ought their acts or conduct be used as evidence against him.

T h e rule on admissions made by a conspirator is an ex-


ception to the foregoing rule but in order for such admission to
be admissible against a co-accused, Section 30, Rule 130 of the
Rules of Court requires [among others], that there must be
independent evidence aside from the extrajudicial confession
to prove conspiracy. If apart from the extrajudicial confession
of the confessant no other evidence of the alleged participation
of the accused in the conspiracy was presented by the prosecu-
tion, the culpability of the accused could not be sufficiently es-
tablished (People v. Guittap, G.R. No. 144621, May 9, 2003).

Admission by Privies
1. "Privies" are persons who are partakers or have
an interest in any action or thing, or any relation to another
(Black's Law Dictionary, 5th Ed., 1077). E x a m p l e s : (a) A les-
sor and his lessee, a grantor and a grantee; an assignor and an
assignee are privies in an estate or a contract; (b) An executor
or an administrator and the estate of the deceased are privies
in representation; or (c) An heir and his ascendant are privies
in blood or succession.
136 EVIDENCE
(The Bar Lectures Series)

2. Z inherits a house and lot from his father X. Assume


that X, father of Z, while the former was alive sold the proper-
ty and openly told his acquaintances, that the same lot where
his house stood had already been sold to Y. Is this declaration
by X necessarily admissible against Z, the sole heir of Y? It
is not, because the statement was made after X held his title
to the land. For an admission of a predecessor-in-interest to
be admissible against the successor-in-interest, the following
requisites must be present:
( a ) There must be an act, declaration or an omis-
sion by a predecessor-in-interest;
(b) The act, declaration or omission of the predeces-
sor must have occurred while he was holding (not after)
the title to the property;
(c) The act, declaration or omission must be in re-
lation to the property (Sec. 31, Rule 130, Rules of Court).
3. Accordingly, when the former owner of the property
made the declaration after he ceased to be the owner of the
property, the rule on admission by privies does not apply and
what applies is the general rule that the rights of a party can-
not be prejudiced by an act, declaration, or omission of another
(Gevero v. Intermediate Appellate Court, 189 SCRA 201).

Offer of Compromise in Civil Cases


In civil cases, an offer of compromise is not an admission
of any liability, and is not an admission against the offeror
(Sec. 27, Rule 130, Rules of Court).

Offer of Compromise in Criminal Cases


1. An offer of compromise by the accused may be re-
ceived in evidence as an implied admission of guilt (Sec. 27,
Rule 130, Rules of Court). E x a m p l e : Although the marriage
of the accused in a rape case extinguishes the penal action
(Alonte v. Savellano, Jr., 287 SCRA 245), an offer of marriage
is, generally, speaking, an admission of guilt (People v. Bulos,
359 SCRA 621).
JUDICIAL NOTICE AND ADMISSIONS
C. Admissions, Confessions and the Res Inter Alios Acta Rule

2. There is no implied admission of guilt if the offer


of compromise is in relation to: ( a ) quasi-offenses (criminal
negligence); or ( b ) in those cases allowed by law to be compro-
mised (Sec. 27, Rule 130, Rules of Court).

B a r 1989
Pedro was charged with homicide for having hacked
Ramon to death. Before the case could be tried, the heirs
of Ramon sought out Pedro and discussed with him the
possibility of settlement of the case. Pedro agreed to a
settlement. When the heirs asked how much he was will-
ing to pay, Pedro offered P30.000 which the heirs accept-
ed. Is the agreement to settle, as well as the offer to pay
P30,000 by Pedro, admissible in evidence against him as
an implied admission of guilt?

Suggested answer:
The evidence is admissible. Under the Rules of Evi-
dence, except those involving quasi-offenses or those al-
lowed by law to be compromised, an offer of compromise
in a criminal case may be received in evidence as an ad-
mission of guilt. Homicide is neither a quasi-offense nor
one of those cases allowed by law to be compromised (Sec.
24, Rule 130, Rules of Court).

B a r 2008
Bembol was charged with rape. Bembol's father, Ra-
mil, approached Artemon, the victim's father, during the
preliminary investigation and offered P I million to Arte-
mon to settle the case. Artemon refused the offer.
(a) During the trial, the prosecution presented Ar-
temon to testify on Ramil's offer to settle admissible in
evidence?
(b) xxx

Suggested answers:
(a) The offer of Artemon is not admissible in evi-
dence against Bembol as an implied admission of guilt.
138 EVIDENCE
(The Bar Lectures Series)

To be an implied admission of guilt the offer must be "an


offer of compromise by the accused" (Sec. 27, Rule 130,
Rules of Court). The facts of the case do not indicate that
it was Bembol, the accused who made the offer.
(b) xxx

Plea of Guilty Later Withdrawn


1. The Rules of Criminal Procedure (Sec. 2 of Rule 116),
allows the accused, at arraignment, to plead guilty to a lesser
offense with the consent of the offended party and the pros-
ecutor provided that the lesser offense is necessarily included
in the offense charged. He may also plead guilty to a lesser
offense even after arraignment after withdrawing his plea of
not guilty.
2. In case the accused withdraws his guilty plea, that
plea of guilty later withdrawn, is not admissible in evidence
against the accused who made the plea (Sec. 27, Rule 130,
Rules of Court).

An Unaccepted Plea of Guilty to a Lesser Offense


If the plea of guilty to a lesser offense is not accepted, the
rule does not provide for an adverse consequence of the unac-
cepted plea. On the contrary, the rule provides that an unac-
cepted plea of guilty to a lesser offense, is not admissible in
evidence against the accused who made the plea or offer (Sec.
27, Rule 130, Rules of Court).

An Offer to Pay or the Payment of Medical, Hospital or Other


Expenses

An offer to pay or the payment of medical, hospital or


other expenses occasioned by an injury is not admissible in
evidence as proof of civil or criminal liability for the injured
party (Sec. 27, Rule 130, Rules of Court). In other jurisdic-
tions, this act of rendering aid is sometimes called the "good
Samaritan rule." The phrase is used to refer to the rendering
of voluntary aid to a suffering person.
JUDICIAL NOTICE AND ADMISSIONS
C. Admissions, Confessions and the Res Inter Alios Acta Rule

Subsequent Remedial Measures

Assume that P P , while negotiating the stairs from the


lobby of a hotel to his third floor room, slipped and fell from
the stairs and sustained head injuries. T h e hotel owner, upon
learning of the accident, immediately ordered the mainte-
nance department of the hotel to install a non-slippery mate-
rial on every step of the stairway. In an action for damages
against the hotel owner by P P , may the latter introduce evi-
dence of the subsequent remedial measures taken to prove an
admission by the defendant of the hazardous condition of the
stairway at the time of the incident?

No direct legal provision in this jurisdiction addresses


the question as it is. It is however, interesting to observe that
the U . S. Federal Rules of Evidence ( F R E ) in Rule 407 thereof,
prohibits the admission of evidence of subsequent remedial
measures when offered to prove the negligence of the defen-
dant. Evidence of such measures may however, be admissible
to prove some other purpose like the fact that the defendant
had ownership of the hotel or control over the same and all the
fixtures therein.
Accordingly the rule is based on the policy of encouraging
potential defendants to remedy hazardous conditions without
fear that their actions will be used as evidence against them
(Pau v. Yosemite Park [CA9 Cal] 928 F2d, 880). To adopt the
contrary rule would discourage owners from improving the
condition causing the injury because of their fear of the evi-
dential use of such improvement to their disadvantage (Wer-
ner v. Upjohn Co. [CA4 MD] 628 F2d, 848; 29 Am Jur 2d 463-
464).
The rule ( F R E 407) provides that:

"When after an event, measures are taken which, if


taken previously, would have made the event less likely
to occur, evidence of the subsequent measures is not ad-
missible to prove negligence or culpable conduct in con-
nection with the event. This rule does not require the ex-
clusion of evidence of subsequent measures when offered
140 EVIDENCE
(The Bar Lectures Series)

for another purpose, such as proving ownership, control,


or feasibility of precautionary measures, if controverted,
or impeachment." (FRE Rule 407)

Evidence of Similar Conduct (second branch).


1. The general rule is that the law will not consider evi-
dence that a person has done a certain act at a particular time
as probative of a contention that he has done a similar act
at another time. This is the rule of res inter alios acta found
in Section 34, Rule 130 of the Rules of Court, as amended. A
similar conduct which does not even sufficiently establish a
plan or scheme is not admissible (Enriquez v. People, G.R. No.
119239, May 9, 2000; Espinosa v. Sandiganbayan, 331 SCRA
538).
2. Assume that M r . X is accused of physical injuries.
Is evidence that in the past he committed several acts con-
stituting physical injuries admissible to prove his propensity
for committing such acts or that he acted in conformity with
his past acts? Answer: T h e evidence is not admissible for the
purpose for which it is offered. Sec. 34 of Rule 130 clearly pro-
vides:

"SECTION 34. Similar acts as evidence. Evi-


dence that one did or did not do a certain thing at one
time, is not admissible to prove that he did or did not do
the same or a similar thing at another time but it may be
received to prove a specific intent or knowledge, iden-
tity, plan, system, scheme, habit, custom or usage and
the like."

3. The above provision constitutes the second branch of


the res inter alios acta rule as previously mentioned.
The rule prohibits the admission of the so-called "propen-
sity evidence" which is evidence that tends 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 al-
legations that are not mentioned in the complaint, confuses
JUDICIAL NOTICE AND ADMISSIONS
C. Admissions, Confessions and the Res Inter Alios Acta Rule

him in his defense, raises a variety of relevant issues, and


diverts the attention of the court from the issues immediate-
ly 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 liti-
gants (Cruz v. Court of Appeals, 293 SCRA 239).

Under Sec. 34 of Rule 130, although the accused has pre-


viously been charged with and convicted of similar offenses,
the trial court commits an error if it considers such circum-
stance for the purpose of showing that he was likely to commit
the crimes charged in the indictment. Evidence of collateral
offenses must not be received as substantive evidence of the
offenses on trial (People v. Santos, G.R. No. 175593, October
17,2007).
Under the same rule, in an action to collect a sum of
money, evidence that the debtor had contracted debts with
various persons in the past and had not paid such debts de-
spite demand, is not admissible to show that the debtor did
not pay his obligation to the plaintiff in the present case. In
a similar vein, evidence that Jose was cleared of a previous
charge of robbery or that he was never involved in any robbery
in the past is not admissible to prove that he could not have
committed the robbery for which he is presently charged. The
rule enunciated in Sec. 34 of Rule 130 is also founded on plain
common sense. To argue that a person did or did not commit
an act because he did or did not commit a similar thing in the
past is certainly non sequitur.

When Evidence of Similar Acts or Previous Conduct is Ad-


missible
1. Evidence of similar acts is admissible for any of the
following purposes:
( a ) specific intent;
(b) knowledge;
(c) identity;
142 EVIDENCE
(The Bar Lectures Series)

(d) plan;
(e) system;
(f) scheme;
(g) habit;
(h) custom;
(i) usage; and the like (Sec. 34, Rule 130, Rules of
Court).
2. Evidence of similar acts may frequently become rel-
evant, especially in actions based on fraud and deceit, because
it sheds light on the state of mind or knowledge of a person,
his motive or intent, or they may uncover a scheme, design or
plan (Cruz v. Court of Appeals, 293 SCRA 239).
3. The admissibility of similar acts or previous conduct
would depend on the purposes for which such acts or conduct
are offered.
For example, evidence of the other similar crimes, acts or
wrongs previously committed by the accused are admissible
to show that the offense for which he is currently charged and
his prior similar acts show the "signature" or "handiwork" of
the accused, or because of identical modus operandi. In other
words, the similar acts may be offered to show that they share
distinctive features as the offense for which the accused is
currently charged with but the evidence cannot be offered to
show that the accused is likely to be guilty of the charge for
having committed the same or similar acts before his pres-
ent indictment. The rule is: T h e past acts of the accused are
inadmissible to prove that he acted in conformity with such
previous acts.

- oOo
Chapter III

OBJECT AND DOCUMENTARY EVIDENCE

I Object Evidence
( R u l e 130)

Meaning of Object Evidence

1. Object or real evidence as defined by the Rules of


Court refers to evidence that is addressed to the senses of the
court.

"SECTION 1. Object as evidence. Object as evi-


dence are those addressed to the senses of the court.
When an object is relevant to the fact in issue, it may be
exhibited to, examined or viewed by the court."

2. Object evidence does not refer to the perception of


the witness and a recollection of that perception. It is not a
reconstruction of past events as related by a witness on the
stand. Real or object evidence is not a verbal description of
something. It is not a replica or a mere representation of
something. Object or real evidence is exactly what its name
suggests. It is the real thing itself like the knife used to slash
the victim's throat, the ring actually stolen by the accused, the
bullet extracted from the victim's chest, the mangled fender of
a truck that was rear-ended by a bulldozer, or the blood splat-
tered on the wall of the room where the victim was found. It
consists of tangible things like a gun, a broken glass, a piece
of bloody clothing or the defective ladder that caused the fall
of the plaintiff.

143
144 EVIDENCE
(The Bar Lectures Series)

Object or real evidence appeals directly to the senses of


the court. Instead of relying on the recollection of the witness,
an object evidence will enable the court to have its own first-
hand perception of the evidence. If the court wants to know
whether the bolo used in the crime is long or short, big or
small, sharp or blunted, the object evidence would be the bolo
itself.
3. Object evidence could have a very persuasive effect
on the part of the court. A display of one's injury is very pow-
erful. No one can dispute a missing arm or a severed leg. No
other evidence is necessary to establish the injury.
Even a human being, may be a form of real evidence.
Where the racial characteristics of a party is at issue, the
court may, at its discretion, v i e w the person concerned. In a
criminal case where the complaining witness avers that he
was stabbed in the arm by the accused, the court m a y inspect
his arm. The absence of any scar in the spot where the injury
was allegedly inflicted may convince the court that the wit-
ness was untruthful in his testimony.

The court may likewise allow the exhibition of the weap-


on allegedly used in attacking the victim, the bloody garment
of the victim or the personal effect, like a glove, left by the
supposed assailant in the scene of the crime.
4. Object evidence could provide a dramatic end to a
case. In one sensational American double murder case com-
mitted in 1994 involving the football great O.J. Simpson, the
court allowed the prosecution to have the accused Simpson try
on a glove which the prosecution claimed to have been left by
the murderer in the crime scene. After a few breathless mo-
ments, gasps from the audience broke the silence in the court-
room when the glove did not fit the hand of the accused. Dur-
ing the oral arguments before the jury, the defense repeatedly
chanted an argument that proved powerful and effective: "If it
doesn't fit, you must acquit!" O.J. Simpson was acquitted.

5. Object evidence is not visual alone. It covers the en-


tire range of human senses: hearing, taste, smell and touch.
In a case where the issue is infringement of a musical compo-
OBJECT AND DOCUMENTARY EVIDENCE 145
I Object Evidence

sition, the court may listen to the composition involved. The


court may not only look at but also touch the blade of a knife
to know whether or not it could have produced the incision
characteristic of sharp blades.

6. Physical evidence is a mute but eloquent manifesta-


tion of truth, and it ranks high in our hierarchy of trustwor-
thy evidence where the physical evidence runs counter to
the testimonial evidence, the physical evidence should prevail
(Bank of the Philippine Islands v. Reyes, G.R. No. 157177,
February 11, 2008).

Requisites for Admissibility of Object Evidence


1. T h e admissibility of object or real evidence like any
other evidence requires that the object be both relevant and
competent. To be relevant the evidence must have a relation-
ship to the fact in issue. To be competent it must not be ex-
cluded by the rules or by law. T h e legal basis of this require-
ment is Sec. 3 of Rule 128: "Evidence is admissible when it is
relevant to the issue and is not excluded by the law or these
rules."
2. For the object not to be excluded by the Rules, the
same must pass the test of authentication. The threshold foun-
dation for real evidence is its being authenticated. Is it the
real thing? In other words, is it the actual object it is claimed
to be? To authenticate the object, it must be shown that the
object is the very thing that is either the subject matter of the
lawsuit or the very one involved to prove an issue in the case.
If the prosecution wants the admission of the gun used in the
murder, it must prove that it was the very same gun used by
the accused. Another gun although identical with the actual
gun in all respects, would not satisfy the requirements of au-
thentication.
3. To authenticate the object, there must be someone
who should identify the object to be the actual thing involved
in the litigation. This someone is the witness. An object evi-
dence, being inanimate, cannot speak for itself. It cannot pres-
ent itself to the court as an exhibit. Even a supposedly ancient
146 EVIDENCE
(The Bar Lectures Series)

document (a private document that is more than thirty years


old produced from a custody in which it would naturally be
found if genuine and is unblemished by any alterations or cir-
cumstances of suspicion), requires a witness to testify on the
characteristics of the document even if the document no longer
requires authentication (Sec. 21, Rule 132, Rules of Court).
4. It must be emphasized that every evidence, whether
it be a document or an object, needs a witness. Even object
evidence requires statements from a witness to make its way
into the realm of admissible evidence. In short, testimonial
evidence provides the foundation for all types of evidence.
This is a very basic rule. In layman's term, the evidence must
be "sponsored" by a witness. To authenticate the object, the
witness must have capacity to identify the object as the v e r y
thing involved in the litigation. Better still, he must have ac-
tual and personal knowledge of the exhibit he is presenting
for admission. This is because "a witness can only testify to
those facts which he knows of his personal knowledge; that is,
which are derived from his own perception..." (Sec. 36, Rule
130, Rules of Court).

5. An object evidence is not taken in isolation. It is


weighed in relation to the testimony of a witness. Also, in giv-
ing credence to a testimony, the court takes into consideration
the physical evidence. If the testimony bears a striking simi-
larity with the physical evidence, the testimony becomes wor-
thy of belief (People v. Larranaga, 463 SCRA 652).

6. When the truth or falsity of a fact in issue m a y be


explained by the presentation of an object, the same may be
exhibited before the court. If the witness wants to show the
condition of a particular article or substance, his testimony will
be enhanced by the presentation of said article or substance.
More often than not, the presentation of object evidence
supplements the credibility of the testimony of a witness when
the object has a clear relevance to the issue of the case.

Cutting through all the legal foliage, we find the follow-


ing as the basic requisites for the admissibility of an object or
real evidence:
OBJECT AND DOCUMENTARY EVIDENCE 147
I Object Evidence

( a ) T h e evidence must be relevant;

( b ) T h e evidence must be authenticated;


(c) T h e authentication must be made by a compe-
tent witness; and

( d ) T h e object must be formally offered in evi-


dence.

T h e authentication of the object by a competent witness


is to comply with the element of competence as an essential
ingredient of admissibility. After its authentication, the object
need to be offered in evidence at the appropriate time.

T h e formal offer of evidence is particularly a vital act be-


fore the admission of evidence because the court "shall con-
sider no evidence which has not been formally offered" (Sec.
34, Rule 132, Rules of Court).

T h e requirements of relevance and the testimony by a


competent witness rarely pose a problem. Relevance is a mat-
ter of reasoning and the court will draw an inference of the
relevancy of the evidence from the issues of the case. Also,
almost no party would offer a witness who has no personal
knowledge of the object to be authenticated. The problem com-
monly lies in showing that the object sought to be admitted is
in fact the real thing and not a mere substitute or representa-
tion of the real thing. This problem of authentication is com-
monly called "laying the foundation" for the evidence.

7. An object evidence when offered in accordance with


the requisites for its admissibility becomes evidence of the
highest order and speaks more eloquently than witnesses put
together. The presence of the victim's ravished body in a deep
ravine with handcuffs on her wrist is a physical evidence that
bolsters the testimony of the witness (People v. Larranaga,
supra). In contrast, in another case, the absence of external
injuries in the body of the alleged victim belies her claim that
she was dragged to the bushes by the accused (People v. Gan-
duma, 160 SCRA 799).
148 EVIDENCE
(The Bar Lectures Series)

Object Evidence and the Right Against Self-incrimination


The right against self-incrimination cannot be invoked
against object evidence.
In one early case, in his assignment of error, the accused
appellant asseverates that the admission as evidence of the
victim's wallet together with its contents, viz., (1) his resi-
dence certificate; (2) his identification card; and ( 3 ) bunch of
keys, violates his right against self-incrimination.
The Court held that the right against self-incrimination
guaranteed under our fundamental law finds no application
in this case because no testimonial compulsion was involved.
Said the Court:

"This right, as put by Mr. Justice Holmes in Holt v.


United States, 218 U.S. 245, ". . . is a prohibition of the
use of physical or moral compulsion, to extort communica-
tions from him . . . " It is simply a prohibition against legal
process to extract from the [accusedl's own lips, against
his will, admission of his guilt. It does not apply to the in-
stant case where the evidence sought to be excluded is not
an incriminating statement but an object evidence. Wig-
more, in 4 Wigmore, 2263, discussing the question now
before us in his treatise on evidence, thus, said: ". . . it is
not merely compulsion that is the kernel of the privilege,
. . . but testimonial compulsion" (People v. Malimit, 264
SCRA 167).

Categories of Object Evidence


1. For purposes of authentication of an object or for
laying the foundation for the exhibit, object evidence may be
classified into the following (29A Am Jur, 945-947):
( a ) Objects that have readily identifiable marks
(unique objects);

(b) Objects that are made readily identifiable (ob-


jects made unique); and

(c) Objects with no identifying marks and cannot


be marked (non-unique objects).
OBJECT AND DOCUMENTARY EVIDENCE 149
I Object Evidence

2. If the object has a unique characteristic, like the se-


rial number of a caliber 45 pistol, it becomes readily identi-
fiable. So long as the witness testifies that the object has a
unique characteristic, he saw the object on the relevant date,
remembers its characteristics, asserts that the object shown
to him in court is the same or substantially in the same con-
dition as when he first saw it and alleges that those charac-
teristics are those of the object he is identifying in court, the
authentication requirement is satisfied.

3. If the object does not have a unique characteristic,


like the typical kitchen knife that has no serial number, is
commonplace, and is identical with a lot of knives of the same
kind and quality, the witness may be able to identify the same
in court if he claims that he made the thing acquire a unique
characteristic like placing identifying marks on it. A l l he has
to do in court is to testify as to what he did to make the object
identifiable and that the object presented to him for identifica-
tion in court has the characteristics he made on the object.

Chain of Custody
1. T h e third category refers to those objects which are
not readily identifiable, were not made identifiable or cannot
be made identifiable like drops of blood or oil, drugs in powder
form, fiber, grains of sand and similar objects. Under this situ-
ation, the proponent of the evidence must establish a chain of
custody.
2. T h e purpose of establishing a chain of custody is to
guaranty the integrity of the physical evidence and to prevent
the introduction of evidence which is not authentic (Lester v.
State, 82 Md App 391, 571 A2d 897 cited in 29A Am Jur 2d,
Evidence, 946) but where the exhibit is positively identified
the chain of custody of physical evidence is irrelevant (29A
Am Jur 2d, Evidence, 946 citing State v. Clifford [Mo App]
815 SW2d3).
3. Since it is called a chain, there must be links to the
chain. The links are the people who actually handled or had
150 EVIDENCE
(The Bar Lectures Series)

custody of the object. Each of the link in the chain must show
how he received the object, how he handled it to prevent sub-
stitution and how it was transferred to another. Each of the
handlers of the evidence is a link in the chain and must testify
to make the foundation complete. This is the ideal way to show
the chain of custody although the ideal way is not absolutely
required.
There is authority supporting the view that the prosecu-
tion is not required to elicit testimony from every custodian or
from every person who had an opportunity to come in contact
with the evidence sought to be admitted (Toney v. State [Alas-
ka App] 833 P2d 15; Lewis v. State, 307 Ark 260, 819 SW2d
689; Commonwealth v. Williams, 388 Pa Super 153, 565 A2de
160 all in 29A Am Jur 2d, Evidence, 946). As long as one of
the "chains" testifies and his testimony negates the possibil-
ity of tampering and that the integrity of the evidence is pre-
served, his testimony alone is adequate to prove the chain of
custody (29A Am Jur 2d, Evidence, 947). Also, where an item
of evidence is possessed jointly by two people, it is not neces-
sary for both to testify as to the chain of custody. As long as one
of the joint possessors testifies and that testimony negates the
possibility of tampering, it alone is adequate to prove chain of
custody (Lester v. State, 82 Md, App 391, 571 A2d 897 in 29A
Am Jur 2d, Evidence, 947).

4. In Lopez v. People (G.R. No. 172953, April 30, 2008),


cited in People v. Dela Cruz (G.R. No. 181545, October 8, 2008)
and People v. Agulay (G.R. No. 181747, September 26, 2008),
the Court had the occasion to expound on the chain of custody
rule, thus:

"As a method of authenticating evidence, the chain


of custody rule 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
OBJECT AND DOCUMENTARY EVIDENCE 151
I Object Evidence

from whom it was received, where it was and what hap-


pened to it while in the witness' possession, the 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 pos-
session of the same.
"While testimony about a perfect chain is not always
the standard because it is almost always impossible to
obtain an unbroken chain of custody, it becomes indis-
pensable and essential when the item of real evidence is
not distinctive and is not readily identifiable, or when its
condition at the time of testing or trial is critical, or when
a witness has failed to observe its uniqueness. The same
standard likewise obtains in case the evidence is suscep-
tible to alteration, tampering, contamination and even
substitution and exchange. In other words, the exhibit's
level of susceptibility to fungibility, alteration or tamper-
ing without regard to whether the same is advertent
or otherwise not dictates the level of strictness in the
application of the chain of custody rule.

xxx
"A unique characteristic of narcotic substances is
that they are not readily identifiable as in fact they are
subject to scientific analysis to determine their composi-
tion and nature. The Court cannot reluctantly close its
eyes to the likelihood, or at least the possibility, that at
any of the links in the chain of custody over the same there
could have been tampering, alteration or substitution of
substances from other casesby accident or otherwise
in which similar evidence was seized or in which similar
evidence was submitted for laboratory testing. Hence, in
authenticating the same, a standard more stringent than
that applied to cases involving objects which are readily
identifiable must be applied, a more exacting standard
that entails a chain of custody of the item with sufficient
completeness if only to render it improbable that the orig-
inal item has either been exchanged with another or been
contaminated or tampered with.
152 EVIDENCE
(The Bar Lectures Series)

"Thus, the corpus delicti should be identified with


unwavering exactitude" (Zarraga v. People, G.R. No.
162064, March 14, 2006).

5. A unique characteristic of narcotic substances for


instance, is that they are not readily identifiable hence, in au-
thenticating the same, a more stringent standard than that
applied to readily identifiable objects is necessary. This exact-
ing standard entails a chain of custody of the item with suf-
ficient completeness to render it improbable for the original
item to be exchanged with another, contaminated or tampered
with (Lopez v. People, G.R. No. 172953, April 30, 2008).

In drug cases it is essential that the identity of the pro-


hibited drug be established beyond doubt. T h e mere fact of
unauthorized possession is not sufficient to create the moral
certainty that would sustain a finding of guilt. M o r e than just
the fact of possession, the fact that the substance said to be
illegally possessed is the very same substance offered in court
as exhibit. The chain of custody requirement performs this
function. As a method of authenticating evidence, the chain
of custody rule 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. T h e
likelihood of tampering, loss or mistake with respect to an ex-
hibit is greatest when the exhibit is small and is one that has
physical characteristics fungible in nature and similar in form
to substances familiar to people in their daily life (Ibid.).

Illustrations:

A. The fact situation is a criminal case. The police in-


vestigator is testifying that he found a gun in the crime scene.

Q: Officer, you said you found a gun on the bed of the


victim in the morning of September 15, 2008 at
around 9:00 A.M.?
A: I did, Sir.
Q: Would you please describe the weapon you saw?
OBJECT AND DOCUMENTARY EVIDENCE 153
I Object Evidence

A: It was a .45ACP, Colt Gold Cup Series, a five inch


barrel, blue finish, a black handle with wrap around
grooves, and with the initials, "P.M." on the lower
left hand side of its handle.
Q: (After other questions) Would you be able to recog-
nize the gun if shown to you right now?
A: I would be able to recognize it, Sir.
Q: I would like to show you this gun. Will you please
examine it? (Witness examines the gun). What rela-
tionship does this gun have to the gun you said you
found on the victim's bed?
-
A It is the very same gun, Sir.
Q: How are you able to recognize this as the very same
gun?
A: It has the same characteristics as the gun I found
in the crime scene. The initials "P.M." are still here.
Besides, it has the same serial number in the barrel
as the one I recorded in my notebook and as I wrote
in my official report.
(Counsel now proceeds to have the exhibit
appropriately marked.)
B. If the object found by the police investigator was
a knife that has no distinguishing features, the examination
would go something like the following:

Q: Officer, you said you saw a knife in the victim's bed-


room?
A: I did, Sir.
Q: Would you please describe the knife you saw?
A: It was of the kind you normally buy in a wet market.
It had a brown wooden handle and a four-inch non-
stainless blade.
Q: What did you do with the knife you found?
A: With my own Swiss knife I scratched my initials
on the handle of the knife then placed it inside the
evidence plastic bag I always carry with me.
154 EVIDENCE
(The Bar Lectures Series)

(The witness is then shown a knife and he is


asked to identify it.) The witness answers:
A: It is the same knife, Sir. I can see the initials I made.
You can see them yourself.
(Counsel seeks permission of the court for the
marking of the knife as exhibit.)

C. If the object is not readily identifiable, a chain of


custody must be shown. To avoid gaps in the chain of custody and
prevent further evidentiary objections, ideally all the persons
who handled the object should be called to the stand although
courts no longer require this rigid process. Let us assume
that the fact situation is a murder case committed allegedly
by poisoning the victim. During a judicially authorized search
of the house of the accused, police found five grams of what
appears to be a toxic substance in powder form inside a plastic
bag kept in the closet of the accused. The police investigator
who found the substance is called first to testify. The following
would be the general thrust of the examination in the absence
of a law or rule providing the contrary:

Q: Officer, after finding the substance you said you saw


in the closet of the accused, what did you do?
A- I placed the substance inside a plastic evidence bag
then sealed it with a sealer which our office provides
for the purpose. The evidence bag has in its opening
a special non-detachable paper where you can write
on after sealing the bag. I wrote my name on it, the
date, the name of the accused, his address and the
time I found it.
Q: What did you do with it after that?
A: Following our internal procedures, I logged the evi-
dence in our evidence log book and handed it to the
chemist in our crime laboratory. He gave me a re-
ceipt for it.
Q: In what condition was the evidence bag when you
handed it to the chemist?
A: It was sealed, Sir.
OBJECT AND DOCUMENTARY EVIDENCE 155
I Object Evidence

T h e next witness would be the chemist who would tes-


tify to having personally received the evidence bag described
by the investigator. T h e chemist would further testify having
removed the powdery substance or a portion of it from the
bag for examination by making an opening in the bag with-
out disturbing the previously sealed portion of the bag, that
after putting back the remainder in the bag and sealing the
portion of the bag which he had opened, he wrote thereon the
appropriate markings and put the evidence in a locker safe.
T h e chemist would testify too that from the time he kept the
evidence, it was never handled by anyone else and that as it is
shown in court, there appear no signs of tampering.

Unless a specific provision of law or rule provides oth-


erwise, the investigator need not testify that the process of
sealing the evidence and the submission to the chemist were
done in the presence of the accused or his representative. This
is because of the presumption that official duty has been regu-
larly performed (Sec. 3 [ m ] , Rule 131, Rules of Court).

6. In the Philippines, the confiscation and seizure of


drugs require a specific chain of custody. In People v. Tan (348
SCRA 116) citing People v. Gireng (241 SCRA 11), the Court
exhorted the courts to be extra vigilant in trying drug cases so
an innocent person is not made to suffer the unusually severe
penalties for drug offense. T h e Supreme Court recognized that
a police buy-bust operation carries a built-in danger for abuse
because by its very nature, anti-narcotics operation involves
the need for entrapment procedures and the use of shady char-
acters as informants and the secrecy that shrouds drug deals
enables the planting of marijuana or heroin in the pockets
or hands of unsuspecting persons. Such operations therefore,
have to be governed by a specific procedure with respect to
the seizure and custody of the drugs. The required procedure
is embodied in. Section 21, paragraph 1, Article II of Republic
Act N o . 9165 (People v. Agulay, G.R. No. 181747, September
26, 2008).
156 EVIDENCE
(The Bar Lectures Series)

Chain of Custody in Drug Cases


1. Section K b ) of the Dangerous Drugs Board Regula-
tion N o . 1, Series of 2002 (in relation to Sec. 81[b] of R . A . N o .
9165) which implements R . A . N o . 9165, defines "chain of cus-
tody" as follows:

"b. "Chain of Custody" means the duly recorded


authorized movements and custody of seized drugs or
controlled chemicals or plant sources of dangerous drugs
or laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory to
safekeeping to presentation in court for destruction. Such
record of movements and custody of seized item shall in-
clude the identity and signature of the person who held
temporary custody of the seized item, the date and time
when such transfer of custody were made in the course
of safekeeping and use in court as evidence, and the final
disposition" (People v. Obmiranis, G.R. No. 181492, De-
cember 16, 2008).

2. The procedure to be followed in the custody and


handling of seized dangerous drugs is outlined in Section 21,
paragraph 1, Article II of R . A . N o . 9165. It provides:

"The apprehending team having initial custody


and control of the drugs shall, immediately after seizure
and confiscation, physically inventory and photograph
the same in the presence of the accused or the person/s
from whom such items were confiscated and/or seized, or
his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign the
copies of the inventory and be given a copy thereof.

"The same is implemented by Section 21(a), Article II of


the Implementing Rules and Regulations of Republic A c t N o .
9165:

(a) The apprehending team having initial custody


and control of the drugs shall, immediately after seizure
and confiscation, physically inventory and photograph
the same in the presence of the accused or the person/s
OBJECT AND DOCUMENTARY EVIDENCE 157
I Object Evidence

from whom such items were confiscated and/or seized, or


his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign the
copies of the inventory and be given a copy thereof: Pro-
vided, further, that non-compliance with these require-
ments under justifiable grounds, as long as the integrity
and the evidentiary value of the seized items are prop-
erly preserved by the apprehending officer/team, shall not.
render void and invalid such seizures of and custody over
said items." (People v. Rivera, G.R. No. 182347, October
17, 2008; Underscoring supplied)

But a mere statement that the integrity and evidentiary


value of the evidence is not enough. It must be accompanied
by proof (People v. Dela Cruz, G.R. No. 177222, October 29,
2008).

3. "The failure of the prosecution to show that the police


officers conducted the required physical inventory and photo-
graph of the evidence confiscated pursuant to said guidelines,
is not fatal and does not automatically render accused-appel-
lant's arrest illegal or the items seized/confiscated from him
inadmissible. Indeed, the implementing rules offer some flex-
ibility when a proviso added that 'non-compliance with these
requirements under justifiable grounds, as long as the integ-
rity and the evidentiary value of the seized items are properly
preserved by the apprehending officer I team, shall not render
void and invalid such seizures of and custody over said items.'
T h e same provision clearly states as well, that it must still be
shown that there exists justifiable grounds and proof that the
integrity and evidentiary value of the evidence have been pre-
served (People v. Rivera, G.R. No. 182347, October 17, 2008).

"What is of utmost importance is the preservation of the


integrity and evidentiary value of the seized items, as the same
would be utilized in the determination of the guilt or inno-
cence of the accused. The existence of the dangerous drug is
a condition sine qua non for conviction for the illegal sale of
dangerous drugs. The dangerous drug itself constitutes the
158 EVIDENCE
(The Bar Lectures Series)

very corpus delicti of the crime and the fact of its existence is
vital to a judgment of conviction. Thus, it is essential that the
identity of the prohibited drug be established beyond doubt.
The chain of custody requirement performs the function of en-
suring that the integrity and evidentiary value of the seized
items are preserved, so much so that unnecessary doubts as
to the identity of the evidence are removed (People v. Rivera,
G.R. No. 182347, October 17, 2008).
"To be admissible, the prosecution must show by records
or testimony, the continuous whereabouts of the exhibit at
least between the time it came into possession of the police of-
ficers and until it was tested in the laboratory to determine its
composition up to the time it was offered in evidence." (People
v. Rivera, G.R. No. 182347, October 17, 2008)
4. In People v. Dela Cruz (G.R. No. 177222, October
29, 2008), the Court found that the arresting officers failed
to strictly comply with the guidelines prescribed by the law
regarding the custody and control of the seized drugs. It also
found that while there was testimony regarding the marking
of the seized items at the police station, there was no mention
whether the same had been done in the presence of appellant
or his representatives. There was likewise no mention that
any representative from the media, D O J or any elected official
had been present during the inventory or that any of these
people had been required to sign the copies of the inventory.
Neither does it appear on record that the team photographed
the contraband in accordance with law. T h e prosecution justi-
fied the failure of the officers to comply with the requirements
of the law by stating that the integrity and evidentiary value
of the seized items were properly preserved in accordance with
law.

According to the Court:

xxx

"Following the rule that penal laws shall be con-


strued strictly against the government, and liberally in
favor of the accused, the apprehending team's omission
OBJECT AND DOCUMENTARY EVIDENCE 159
I Object Evidence

to observe the procedure outlined by R.A. 9165 in the cus-


tody and disposition of the seized drugs significantly im-
pairs the prosecution's case.
"Now, the prosecution cannot seek refuge in the pro-
viso of the IRR in the absence of proof of entitlement to
such leniency. The prosecution rationalizes its oversight
by merely stating that the integrity and evidentiary value
of the seized items were properly preserved in accordance
with law. The allegation hardly sways the Court save
when it is accompanied by proof. According to the proviso
of the IRR of Section 21(a) of R.A. No. 9165, non-compli-
ance with the procedure shall not render void and invalid
the seizure of and custody of the drugs only when: (1) such
non-compliance was under justifiable grounds; and (2) the
integrity and the evidentiary value of the seized items are
properly preserved by the apprehending team. Clearly,
there must be proof that these two (2) requirements were
met before any such non-compliance may be said to fall
within the scope of the proviso. Significantly, not only
does the present case lack the most basic or elementary
attempt at compliance with the law and its implementing
rules; it fails as well to provide any justificatory ground
showing that the integrity of the evidence had all along
been preserved.

"Failing to prove entitlement to the application of


the proviso, the arresting officers' non-compliance with
the procedure laid down by R.A No. 9156 is not excused.
This inexcusable non-compliance effectively invalidates
their seizure of and custody over the seized drugs, thus.
compromising the identity and integrity of the same . . .
Considering that the prosecution failed to present the
required quantum of evidence, appellant's acquittal is in
order.
"It is well to recall that in several cases that came
before us, we have repeatedly emphasized the importance
of compliance with the prescribed procedure in the cus-
tody and disposition of the seized drugs. We have over
and over declared that the deviation from the standard
procedure dismally compromises the integrity of the evi-
dence." (Italics /emphasis supplied)
160 EVIDENCE
(The Bar Lectures Series)

5. Non-compliance with Sec. 21 of R . A . N o . 9165, par-


ticularly the making of the inventory and their photograph-
ing of the drugs confiscated and/or seized, will not render the
drugs inadmissible in evidence. The issue if there is non-com-
pliance with the law is not admissibility, but of weight evi-
dentiary merit or probative value (People v. Del Monte, G.R.
No. 179940, April 23, 2008). Note: As compared to People v.
Dela Cruz cited in the immediately preceding number, the
pronouncements in People v. Del Monte are clearer and unam-
biguous.

Demonstrative Evidence
1. Demonstrative evidence is not the actual thing but
it is referred to as "demonstrative" because it represents or
demonstrates the real thing. It is not strictly "real" evidence
because it is not the very thing involved in the case. A map,
a diagram, a photograph and a model, fall under this catego-
ry. This category of evidence is not separately defined in the
Rules of Court and appears to have been incorporated under
the general term "object" evidence.

2. The admissibility of this type of evidence largely de-


pends on laying the proper foundation for the evidence. T h e
rule boils down to one basic question: Does the evidence suf-
ficiently and accurately represent the object it seeks to dem-
onstrate or represent? If it does, the evidence would be admis-
sible.

3. Photographs Photographs of persons, things and


places when instructive to the understanding of the case, will
be admitted in evidence. For a still photograph to be admit-
ted, the same must be relevant and competent. It is competent
when it is properly authenticated by a witness who is familiar
with the scene or person portrayed and who testifies that the
photograph faithfully represents what it depicts.
Some courts insist on requiring the photographer to tes-
tify but this view has been eroded by the tendency of modern
courts to admit as a witness one who has familiarity with the
scene portrayed (Sison v. People, 250 SCRA 58, 75).
OBJECT AND DOCUMENTARY EVIDENCE 161
I Object Evidence

Under the electronic evidence rules, photographic evi-


dence of events, acts or transactions shall be admissible in
evidence provided:

( a ) It shall be presented, displayed and shown to


the court; and

( b ) It shall be identified, explained or authenticat-


ed by either

(i) T h e person who made the recording, or by


( i i ) Some other person competent to testify
on the accuracy thereof (Sec. 1, Rule 11, Electronic
Rules of Evidence).

T h e admissibility of photographs is within the discre-


tion of the trial court, and its ruling in this respect will not
be interfered with except upon a clear showing of an abuse
of discretion. In determining whether photographs should be
admitted, a trial judge must determine whether they are rel-
evant, and whether a proper foundation has been laid (29A
Am Jur Evidence, 2d 960; U.S v. Analla, CA4 SC 975 F2d
119, cert den, U.S. 123 L Ed 2d 476 113 S Ct 1853; State v.
Ruebke, 240 Kan 493, 731 P2d 842, cert den 483 U.S. 1024, 97
L Ed 770,107 S Ct 3272).

EXAMPLE:

Q: Where do you work Mr. Witness?


A- I work in National Bank of the Philippines.
Q: Where is the bank where you work located?
A: It is located in the corner of Guess and Rado Sts. in
St. Jude Village.
Q: How long have you worked in that bank?
A: For the past ten years, Sir.
Q: I am showing you a photograph. Could you identify
this photograph?
162 EVIDENCE
(The Bar Lectures Series)

A: Of course, Sir. This is a picture of the corner of Guess


and Rado Sts. in St. Jude Village.
Q: How do you recognize it?
A: I've worked in this area for the past ten years and I
have seen this corner almost everyday.
Q: How accurate is this photograph?
A: It is an exact depiction of the place.

4. Motion pictures and recordings T h e rules that


apply to photographs generally apply to motion pictures and
recordings. Because of the possibility of tampering and dis-
tortion, courts have traditionally required a stricter standard
for laying the foundation for motion pictures and tape record-
ings. Courts then would require detailed testimony as to the
qualifications of the operator, a detailed description of the
equipment used, the conditions under which the photograph
and the recordings were taken. Modern courts however, have
taken judicial notice of how motion cameras and tape record-
ers work and their general reliability and their prevalent use.
Court practices regarding motion pictures and tape recordings
have been liberalized and the testimony of a person present
when the activities of taking the picture and the recording has
been held sufficient. He must testify that the motion picture
accurately, faithfully represents the place or person, it pur-
ports to portray.

In the case of tape recordings, the witness should identify


the speakers, state how he recognizes their voices and that
the recording was not taken in violation of the A n t i W i r e - T a p -
ping L a w ( R . A . N o . 4200).

The modern approach to motion pictures and recordings


is reflected in local rules. Under the Rules on Electronic E v i -
dence, the authentication process need not involve the person
who actually made the recording. It can be done by some other
person as long as he is one who can testify as to its accuracy.
There is also a requirement that the recording be shown, pre-
sented or displayed to the court (Sec. 1, Rule 11, Rules on Elec-
tronic Evidence).
OBJECT AND DOCUMENTARY EVIDENCE 163
I Object Evidence

5. Diagrams, models and maps These types of de-


monstrative evidence are presented to indicate the relative
locations or positions of objects and persons. Aside from the
requirement of relevance, a diagram, model or map must be
identified by a witness who is familiar with what the evidence
depicts, and that the same is an accurate representation of
the scene it portrays. L i k e any other exhibit, the touchstone
for admissibility of maps, diagrams and models is the ability
of the witness to authenticate the exhibit. Some courts may
require that the model, diagram or map be made or drawn to
scale. If not drawn to scale, the court must be so informed. The
question as to the sufficiency of the authentication is a matter
of judicial discretion (29A Am Jur 2d, Evidence, 989, 990).

6. X-ray pictures X-ray pictures, also referred to as


"skiagraphs" or "radiographs" are admissible when shown to
have been made under circumstances as to assure their ac-
curacy and where relevant to a material issue in the case. A u -
thenticated x-rays are normally involved in personal injury
cases to show the location and the extent of the injury. X-rays
are properly authenticated by the X-ray technician or the phy-
sician who testifies to the competence of the person taking it,
the procedure taken and that the X-ray picture shown is that
of the person, the anatomical part or the object involved in the
case (T.C. Young Construction Co. v. Brown [Ky] 372 SW2d
670, 99 ALR3d 288). Because the science of taking X-ray pic-
tures is now well-founded and generally recognized, almost all
courts no longer require testimony as to the reliability of an
X-ray machine ( 29A Am Jur 2d, Evidence, 977).

7. Scientific tests, demonstrations and experiments


The issue of refusing or granting requests for demonstrations,
experiments and tests in open court is a matter subject to ju-
dicial discretion (Cleary, McCormick On Evidence, 3rd Ed.,
676 citing Spaak v. Chicago & Northwestern Railway Co., 231
F.2d 279 [7th Cir. 1956]). In-court reenactment of material
events by witnesses has been held permissible to help illus-
trate the testimony of a witness (State v. Anderson, 171 Mont.
188, 557, P2d 795 [1976]).
164 EVIDENCE
(The Bar Lectures Series)

Ephemeral Electronic Communications


1. These forms of communications refer to telephone
conversations, text messages, chatroom sessions, streaming
audio, and other forms of electronic communication, the evi-
dence of which is not recorded or retained (Sec. l[k], Rules
on Electronic Evidence). Thus, a claim that the admission of
text messages as evidence constitutes a violation of the right
to privacy is unavailing, the messages being evidence under
the rules (Vidallon-Magtolis v. Salud, 469 SCRA 439; Nuez v.
Cruz-Apao, 455 SCRA 288).
2. Ephemeral electronic communications shall be prov-
en by the testimony of a person who was a party to the same
or by one who has personal knowledge thereof. In the absence
or unavailability of such witnesses, other competent evidence
may be admitted (Sec. 2, Rule 11, Rules on Electronic Evi-
dence).

If the ephemeral electronic communication or a telephone


conversation is recorded, it now is no longer ephemeral hence,
it shall be proven following the procedure provided for under
Sec. 1 of Rule 11 of the Electronic Rules of Evidence. That
means that the recording ( a ) shall be shown, presented or dis-
played to the court, and ( b ) shall be identified, explained or
authenticated by either:

(i) The person who made the recording, or


( i i ) By some other person competent to testify on
the accuracy thereof.

3. Under the Rules on Electronic Evidence, the admis-


sibility of audio, photographic and video evidence of events,
acts or transactions rests on ( a ) their being shown, presented
or displayed in court, and ( b ) their being identified, explained
or authenticated by the person who made the recording or by
some other person competent to testify on the accuracy there-
of (Sec. 1, Rule 11, Rules on Electronic Evidence). Under these
rules, the identification and authentication need not be made
by the recorder himself but by some other person who can tes-
OBJECT AND DOCUMENTARY EVIDENCE 165
I Object Evidence

tify as to the accuracy of the recording (Sec. 1, Rule 11, Rules


on Electronic Evidence).

View of an Object or Scene

1. Under Sec. 1 of Rule 130, when an object is relevant


to the fact in issue, it may be exhibited to, examined or viewed
by the court.

2. Courts have recognized that there are times when


a party cannot bring an object to the court for viewing in the
courtroom. In such a situation the court may take a view of an
object. T h e court may make an ocular inspection of a contest-
ed land to resolve questions of fact raised by the parties. The
court may inspect a crime scene to clarify itself with certain
matters raised by the litigants. It may v i e w the conditions of
vehicles involved in a civil case for damages. Going out of the
courtroom to observe places and objects is commonly termed a
"view."

T h e "view" is expressly authorized by Sec. 1 of Rule 130


and even without this express provision, it is well-recognized
that the court has an inherent power to order a view when
there is a need to do so (Sec. 5, Rule 135, Rules of Court).
3. A v i e w disrupts the usual trial process and is time-
consuming. Hence, in almost all jurisdictions, the trial judge
is granted discretion to grant or refuse a request for a view
(Hodge v. United States, 75 U.S. App. D.C. 332,126 F 2d 849,
1942).
4. The inspection may be made inside or outside the
courtroom. An inspection or view outside the courtroom should
be made in the presence of the parties or at least with previ-
ous notice to them. It is error for the judge for example, to go
alone to the land in question, or to the place where the crime
was committed and take a view without the previous knowl-
edge of the parties. Such inspection or view is part of the trial
since evidence is thereby being received (Moran, Comments
on the Rules of Court, Vol. 5, 78-79, 1980).
166 EVIDENCE
(The Bar Lectures Series)

DNA Evidence
1. In a case in which the admissibility of D N A testing
as a means for determining paternity has become the focal
issue in controversy for the first time, the Supreme Court de-
scribed D N A in the following words:

"DNA or deoxyribonucleic acid, is a molecule that


encodes the genetic information in all living organisms.
A person's DNA is the same in each cell and it does not
change throughout a person's lifetime; the D N A in a per-
son's blood is the same as the DNA found in his saliva,
sweat, bone, the root and shaft of hair, earwax, mucus,
urine, skin tissue and vaginal or rectal cells. Most impor-
tantly, because of polymorphisms in human genetic struc-
ture, no two individuals have the same DNA, with the
notable exception of identical twins" (Agustin v. Court of
Appeals, 460 SCRA 315).

2. Agustin has its roots in an action for support filed


by a mother and her son against the latter's alleged biological
father who defended by denying having sired the child. T h e
plaintiffs then moved for the issuance of an order directing all
the parties to submit themselves to D N A testing pursuant to
Rule 28 (Physical and Mental Examination of Persons) of the
Rules of Court. The defendant opposed the motion by invoking
his constitutional right against self-incrimination. He likewise
moved for the dismissal of the complaint for lack of a cause
of action. The trial court denied the motion to dismiss and
ordered the parties to submit themselves to D N A paternity
testing. The Court of Appeals later affirmed the trial court.

The Supreme Court by upholding the order of the trial


court and the Court of Appeals requiring the petitioner to sub-
mit himself for D N A testing, had the occasion to reiterate its
earlier yet novel stand that D N A testing is a valid means of
determining paternity. In Agustin, the Supreme Court briefly
sketched its past decisions on D N A testing which the Court
initially considered as not as accurate and authoritative as the
scientific forms of identification evidence such as fingerprints
(People v. Teehankee, 249 SCRA 54). T h e Supreme Court ad-
OBJECT AND DOCUMENTARY EVIDENCE 167
I Object Evidence

mitted in Agustin that in early cases "Our faith in D N A test-


ing . . .was not quite so steadfast in the previous decade."
3. In a 1997 decision for instance, in Pe Lim v. Court
of Appeals (G.R. No. 112229, March 18, 1997), also a case for
support filed by the mother in behalf of her child against the
supposed natural father, the Court cautioned against the use
of D N A evidence because as a relatively new science it has not
yet been accorded official recognition by Philippine courts and
held that paternity would still have to be resolved by such con-
ventional evidence as the relevant incriminating acts, verbal
and written, by the putative father. Consistent with the rul-
ings of the era, the Court, as well as the lower courts decided
against the defendant-father on the basis of the incriminating
letters written by him and not because of any D N A testing or
similar procedure.

4. In 2001 however, the Supreme Court showed signs


of opening up to D N A evidence in Tijing v. Court of Appeals
(G.R. No. 125901, March 8, 2001), when it recognized the ex-
istence of the facility ( U P - N S R I D N A Analysis Laboratory)
and expertise in using D N A test for identification and parent-
age testing. Although acknowledging that the test is still open
to challenge being a novel scientific technique, the Supreme
Court in Tijing categorically declared that "eventually, courts
should not hesitate to rule on the admissibility of D N A evi-
dence . . . courts should apply the results of science when com-
petently obtained in aid of situations presented, since to reject
said result is to deny progress. Though it is not necessary in
this case to resort to D N A testing, in the future, it would be
useful to all concerned in the prompt resolution of parentage
and identity issues."
5. One year after Tijing, in what could be considered as
a landmark decision, the Supreme Court in People u. Vallejo
(382 SCRA 192 [2002]), a rape-slay case of a 9-year old girl,
admitted in evidence the D N A samples of the victim which
were found in the bloodstained garments of the accused. Vagi-
nal swabs taken from the victim were also admitted and were
found to show the D N A profile of the accused who was subse-
168 EVIDENCE
(The Bar Lectures Series)

quently convicted. Vallejo is considered by the Court to be the


"first real breakthrough of D N A as admissible and authorita-
tive evidence in Philippine jurisprudence." From a mere rec-
ognition of the existence of D N A testing, Vallejo moved to-
wards an open use of D N A evidence in deciding cases. Vallejo
adopted the following guidelines to be used by courts in as-
sessing the probative value of D N A evidence:
( a ) How the samples were collected;
(b) H o w they were handled;
(c) The possibility of contamination of the sam-
ples;
( d ) T h e procedure followed in analyzing the sam-
ples;
( e ) Whether the proper standards and procedure
were followed in conducting the tests; and
( f ) T h e qualification of the analyst who conducted
the test.
In People v. Janson (400 SCRA 584), the importance of
D N A evidence was likewise recognized although the accused
who was charged with rape was acquitted because of doubts as
to who the real malefactor was. H e r e the court lamented the
lack of D N A evidence as a means to still the Court's doubts.

In Tecson v. COMELEC (424 SCRA 277), the Court ac-


knowledged the weight of D N A evidence when the Court was
faced with the issue of filiation of Fernando Poe, Jr. A n y doubt
as to filiation or paternity, according to the Court, would have
been cleared up by a positive match through D N A testing.
6. Following the trail blazed by Vallejo, the Supreme
Court in 2004 in People v. Yatar, 428 SCRA 504 (May 19,
2004), relied on evidence including D N A evidence in affirming
the conviction of the accused for rape with homicide when the
test showed that a match existed between the D N A profile of
the semen found in the victim and the D N A profile of the blood
sample given by the accused. Yatar also made a lengthy dis-
cussion of D N A , the process of D N A testing and the reasons
OBJECT AND DOCUMENTARY EVIDENCE 169
I Object Evidence

for its admissibility. Yatar significantly upheld the constitu-


tionality of compulsory D N A and rejected the contention that
compulsory testing would infringe on the constitutional right
against self-incrimination. T h e case significantly and clearly
recognized D N A testing and the admissibility of its results as
evidence.

7. A clear acknowledgment of the importance of D N A


evidence is exemplified in the later case of In re Estate of Ro-
gelio Ong v. Diaz (G.R. No. 171713, December 17, 2007). The
case originated in a complaint for compulsory recognition and
support filed by a minor represented by her mother. The de-
fendant, Rogelio Ong died during the pendency of his appeal.
A m i d s t the protestation of the estate-petitioner for D N A test-
ing because of the death of the defendant, the Court, invoking
the newly promulgated rules on D N A evidence, held that the
test may provide the definitive key to the resolution of the
issue and even if the defendant had already passed away, bio-
logical samples could be obtained for the testing. " . . . [E]ven
death of Rogelio cannot bar the conduct of D N A testing." The
Supreme Court affirmed the judgment of the Court of Appeals
remanding the case to the trial court for D N A testing.

Rule on DNA Evidence


1. T h e Rule on D N A Evidence (referred to in this work
as R D E ) was issued by the Supreme Court through A . M . N o .
06-11-5-SC and in accordance with Sec. 14 thereof, took effect
on October 15, 2007, following publication in a newspaper of
general circulation.
2. In what situation does the Rule on DNA Evidence
1
apply ?
The Rule on D N A Evidence is the primary rule to be ap-
plied whenever D N A evidence is offered, used or proposed to
be offered or used as evidence in:
( a ) criminal actions,
(b) civil actions, and
170 EVIDENCE
(The Bar Lectures Series)

(c) special proceedings (Sec.l, RDE).


When a matter is not specifically governed by the Rule on
D N A Evidence, the Rules of Court and other pertinent provi-
sions of law on evidence shall apply (Sec. 2, RDE).
3. What is (a) DNA? (b) DNA profile? (c) DNA evi-
dence?
( a ) D N A refers to deoxyribonucleic acid which is
the chain of molecules found in every nucleated cell of
the body (Sec. 3[b], RDE).
(b) D N A "profile" is the genetic information derived
from D N A testing of biological samples obtained from a
person where such biological sample is clearly identifi-
able as originating from that person (Sec. 3[b], RDE).
(c) The totality of the D N A profiles, results and
other genetic information directly generated from the
D N A testing of biological samples is called " D N A evi-
dence" (Sec. 3[b], RDE).

4. What is the significance of DNA?

The significance lies in the uniqueness of the totality of


the D N A of a person. It is a scientific fact that the totality of
an individual's D N A is unique for the individual, except iden-
tical twins (Sec. 3[b],RDE).

5. How may an order for a DNA testing be obtained?

A person who has a legal interest in the litigation may


file an application before the appropriate court, at any time.
(Sec. 4, RDE).

The order for a D N A testing shall not however, be issued


as a matter of course and from the mere fact that the person
requesting for the testing has a legal interest in the litigation.
For the order to be issued, there must be a further showing
that:

( a ) A biological sample exists that has relevance to


the case;
OBJECT AND DOCUMENTARY EVIDENCE 171
I Object Evidence

( b ) T h e biological sample ( i ) was not previously


subjected to the D N A testing requested; or ( i i ) if it was
previously subjected to D N A testing, the results may re-
quire confirmation for good reasons;

( c ) T h e D N A testing uses a scientifically valid tech-


nique;
( d ) T h e D N A testing has the scientific potential to
produce new information that is relevant to the proper
resolution of the case; and

( e ) T h e existence of other factors, if any, which the


court may consider as potentially affecting the accuracy
and integrity of the D N A testing (Sec. 4, RDE).
Finding that the above requirements have been complied
with, the court shall now issue an order, if appropriate to ( a )
take biological samples from any person or crime scene evi-
dence; and ( b ) impose reasonable conditions on the testing to
protect the integrity of the biological sample and the liability
of the test results (Sec. 5, RDE).

N o t e : T h e court may motu proprio order a D N A testing


(Sec. 4, RDE).
6. 7s a court order always required before undertaking
1
a DNA testing ?
It is not always required. T h e last paragraph of Sec. 4 of
the R D E allows a testing without a prior court order if done
before a suit or proceeding is commenced at the behest of any
party including law enforcement agencies. This also means
that a litigation need not exist prior to D N A testing. Thus, a
court order shall be required only if there is a pending litiga-
tion but not before the litigation.
7. Is the order of the court granting a DNA testing ap-
pealable?
It is not appealable and is immediately executory. Sec. 5
of the R D E clearly provides that "An order of the court grant-
ing the D N A testing shall be immediately executory and shall
not be appealable..."
172 EVIDENCE
(The Bar Lectures Series)

8. What then is the remedy against the court order if it


is not appealable?
The remedy is a petition for certiorari but under Sec. 5
"any petition for certiorari therefrom shall not, in any way,
stay the implementation thereof, unless a higher court issues
an injunctive order" (Sec. 5, RDE).
9. 7s there an automatic admission of the DNA evidence
obtained in the testing?
There is none. By the terms of Sec. 5 of the R D E , the
grant of a D N A testing application shall not be construed as
an automatic admission into evidence of any component of the
D N A evidence that may be obtained as a result of the test-
ing. This necessarily means that the court will still have to
evaluate the probative value of the proposed evidence before
its admission.
The determination of the probative value of the D N A evi-
dence rests upon sound judicial assessment taking into con-
sideration the following matters:

( a ) The chain of custody, including how the biologi-


cal samples were collected, how they were handled, and
the possibility of contamination of the samples;

(b) The D N A testing methodology, including the


procedure followed in analyzing the samples, the advan-
tages and disadvantages of the procedure, and compli-
ance with the scientifically valid standards in conducting
the tests;

(c) The forensic D N A laboratory, including its ac-


creditation and the qualification of the analyst who con-
ducted the test; if the laboratory is not accredited, the
court shall consider the relevant experience of the labora-
tory in forensic casework and its credibility shall be prop-
erly established; and

( d ) The reliability of the testing result (Sec. 7,


RDE).
OBJECT AND DOCUMENTARY EVIDENCE 173
I Object Evidence

10. If a person has already been convicted under a final


and executory judgment, may he still avail of DNA testing?
He may still have D N A testing. T h e test after his convic-
tion is termed a "post-conviction" D N A testing. Significantly,
Sec. 6 of the R D E allows a post-conviction D N A testing. It
may be available to ( a ) the prosecution, or (b) to the person
convicted by a final and executory judgment provided that the
following requirements are met:

( a ) a biological sample exists;

( b ) such sample is relevant to the case; and

(c) the testing would probably result in the rever-


sal of the judgment of conviction (Sec. 6, RDE).

11. 7s a court order required for a post DNA testing?

Sec. 6 of the R D E is clear. It may be available "without


need of prior court order."

12. What remedy is available to the convict if the results


of the post DNA testing are favorable to him?
If the results of the D N A testing are favorable to the con-
vict, he may file a petition for a writ of habeas corpus in the
court of origin. T h e court shall then conduct a hearing and
in case the court finds, after due hearing, that the petition is
meritorious, it shall reverse or modify the judgment of convic-
tion and order the release of the convict, unless his detention
is justified for a lawful cause (Sec. 10, RDE).
The petition shall be filed in the court of origin as a rule.
However, the rule also allows the petition to be filed either
in the Court of Appeals or in the Supreme Court, or with any
member of said courts. A hearing may be conducted by the
latter courts or by any member thereof or instead of conduct-
ing a hearing, may instead remand the petition to the court of
origin and issue the appropriate orders (Sec. 10, RDE).
Note that under Sec. 10, the petition for a writ of habeas
corpus may also be filed by the prosecution.
174 EVIDENCE
(The Bar Lectures Series)

13. Are the DNA profiles of a person open to public scru-


tiny?
They are not. D N A profiles and all the results or other
information obtained from D N A testing are confidential (Sec.
11, RDE). Whoever discloses, utilizes or publishes in any form
any information concerning a D N A profile without the proper
court order shall be liable for indirect contempt of the court
wherein such D N A evidence was offered, presented or sought
to be offered and presented (Sec. 11, RDE).

Except upon order of the court, the D N A profiles and oth-


er results shall only be released to any of the following:
( a ) The person from whom the sample was taken;
(b) Lawyers representing parties in the case or ac-
tion where the D N A evidence is offered and presented or
sought to be offered and presented;
(c) Lawyers of private complainants in a criminal
action;
(d) Duly authorized law enforcement agencies; and
( e ) Other persons as determined by the court (Sec.
11, RDE).
The person from whom the biological sample was taken
may also request that his D N A profile and all results or other
information obtained from the D N A testing be disclosed to the
person designated in his request. This request however, must
be in writing and verified and filed with the court that allowed
the D N A testing (Sec. 11, RDE).

14. The trial court is mandated to preserve the D N A


evidence in its totality, including all biological samples, D N A
profiles and results or other genetic information obtained from
D N A testing in accordance with Sec. 12 of the R D E .

Paraffin Tests

1. Paraffin tests, in general, have been considered as


inconclusive by the Court because scientific experts concur in
OBJECT AND DOCUMENTARY EVIDENCE 175
I Object Evidence

the v i e w that paraffin tests have proved extremely unreliable


in use. T h e tests can only establish the presence or absence
of nitrates or nitrites on the hand but the tests alone cannot
determine whether the source of the nitrates or nitrites was
the discharge of a firearm. T h e presence of nitrates should
be taken only as an indication of a possibility or even a prob-
ability but not of infallibility that a person has fired a gun,
since nitrates are also admittedly found in substances other
than gunpowder. A person who tests positive may have hand-
ed one or more substances with the same positive reaction
for nitrates such as explosives, fireworks, fertilizers, pharma-
ceuticals, tobacco and leguminous plants. T h e argument that
the negative result of gunpowder nitrates from the paraffin
test conducted shows an absence of physical evidence that one
fired a gun, is untenable as it is possible for one to fire a gun
and yet be negative for the presence of nitrates as when the
hands are washed before the test (People v. Cajumocan, 430
SCRA 311; People v. Baconguis, 417 SCRA 66).

A person who uses tobacco may also have nitrate or ni-


trite deposits on his hands since these substances are pres-
ent in the products of combustion of tobacco (Revita v. People,
G.R. No. 177564, October 31, 2008).

2. T h e negative findings of a paraffin test do not con-


clusively show that a person did not discharge a gun if he fired
a gun with a glove on, or if he thoroughly washed his hands
thereafter. Besides, a paraffin test is not conclusive owing to
several factors like wind direction, firing at a hard object, us-
ing a long barrel or a low caliber gun and profuse perspiration
(People v. Baltazar, 352 SCRA 678; People v. Galvez, G.R. No.
157221, March 30, 2007).
A more recent pronouncement by the Court affirmed the
rule that the paraffin test is merely a corroborative evidence,
neither proving nor disproving that a person did indeed fire a
gun. The positive or negative results of the test can be influ-
enced by certain factors, such as the wearing of gloves by the
subject, perspiration of the hands, wind direction, wind veloc-
ity, humidity, climate conditions, the length of the barrel of
176 EVIDENCE
(The Bar Lectures Series)

the firearm, or the open or closed trigger guard of the firearm


(People v. Buduhan, G.R. No. 178196, August 6, 2008).

Polygraph Tests (Lie Detector Tests)


1. A polygraph test operates on the principle that
stress causes physiological changes in the body which can be
measured to indicate whether the subject of the examination
is telling the truth. During an examination in which a poly-
graph is used, sensors are attached to the subject so that the
polygraph can mechanically record the subject's physiological
responses to a series of questions.
2. Courts accordingly uniformly reject the results of
polygraph tests when offered in evidence for the purpose of
establishing the guilt or innocence of one accused of a crime
because it has not yet attained scientific acceptance as a reli-
able and accurate means of ascertaining truth or deception
(United States v. Tedder [CA4 SC] 801 F2d 1437; 29A Am
Jur 2d 1007; People v. Reanzares, G.R. No. 130656, June 29,
2000; People v. Adoviso, G.R. Nos. 116196-97, June 23, 1999;
People v. Carpo, G.R. No. 132676, April 4, 2001).

II D o c u m e n t a r y E v i d e n c e
( R u l e 130)

Meaning of a Document as Evidence (Documentary


Evidence)

1. Another category of evidence is documentary evi-


dence. Documents as evidence do not exclusively refer to writ-
ings. They may refer to any other material like objects as long
as the material contains letters, words, numbers, figures,
symbols or other modes of written expression and offered as
proof of their contents. There are therefore, two categories of
documents as evidence, namely:
( a ) writings, or

(b) any other material containing modes of written


expressions.
OBJECT AND DOCUMENTARY EVIDENCE 177
II Documentary Evidence

T h e relevant provision provides:

"SEC. 2. Documentary evidence. Documents as


evidence consists of writings or any material contain-
ing letters, words, numbers, figures, symbols or other
modes of written expressions offered as proof of their
contents."

2. Under the first category are those instantly recog-


nizable documents like written contracts and wills. Under the
second category are those which are not traditionally consid-
ered as writings but are actually objects but which contain
modes of written expressions.

H o w e v e r , being writings or materials containing modes


of written expressions do not ipso facto make such writings
or materials documentary evidence. For such writings or ma-
terials to be deemed documentary evidence, the same must
be offered as proof of their contents. If offered for some other
purpose, the writings or materials would not be deemed docu-
mentary evidence but merely object evidence.
W h e n a contract is presented in court to show that it ex-
ists or simply to establish its condition, it is not offered to
prove its contents. T h e contract therefore, is not considered a
documentary evidence but an object or real evidence.

B a r 1994
At the trial of Ace for the violation of the Dangerous
Drugs Act, the prosecution offers in evidence a photocopy
of the marked bills used in the "buy-bust" operation. Ace
objects 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 docu-
mentary evidence.
(2) xxx

Suggested answer:
(1) The photocopy is real (object) evidence and not
a documentary evidence. Although it is conceded that the
178 EVIDENCE
(The Bar Lectures Series)

bills contain letters, words, numbers and other modes of


written expression, these facts alone do not make the bills
documentary evidences. To be documentary evidence, the
same must be offered as proof of their contents. The bills
were obviously presented to show that money exchanged
hands in the buy-bust operations and not to prove any-
thing written on the bills. They are therefore, real or ob-
ject evidences.
(2) xxx

Bar 2005
(a) xxx
(b) xxx
(c) May a private document be offered and admit-
ted in evidence both as documentary evidence and as ob-
ject evidence?
(d) xxx
(e) xxx

Suggested answer:
(a) xxx
(b) xxx
(c) A private document may be offered and ad-
mitted in evidence both as documentary evidence and
as object evidence depending on the purpose for which
the document is offered. If offered to prove its existence,
condition or for any purpose other than the contents of a
document, the same is considered as an object evidence.
When the private document is offered as proof of its con-
tents, the same is considered as a documentary evidence
(Sec. 2, Rule 130, Rules of Court). The document may be
offered for both purposes under the principle of multiple
admissibility.
(d) xxx
(e) xxx
OBJECT AND DOCUMENTARY EVIDENCE 179
II Documentary Evidence

Documents under the Rules on Electronic Evidence


1. Section 1(h) of the Rules on Electronic Evidence de-
fines an 'electronic document' as follows:

"(h) "Electronic document" refers to information,


or the representation of information, data, figures, sym-
bols or other modes of written expressions, described
or however represented, by which a right is established
or an obligation extinguished, or by which a fact may
be proved and affirmed, which is received, recorded,
transmitted, stored, processed, retrieved or produced
electronically. It includes digitally signed documents
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 in-
terchangeably with "electronic data message."

2. An electronic document, also known interchangeably


as electronic data message (Sec. l[h], Rules on Electronic Evi-
dence), based on the definition of the Rules, does not only refer
to the information itself. It also refers to the representation of
that information. Whether it be the information itself or its
representation, for the document to be deemed 'electronic,' it
is important that it be received, recorded, transmitted, stored,
processed, retrieved or produced electronically.
It is submitted that the rule does not absolutely require
that the electronic document be initially generated or pro-
duced electronically. A contract for instance which was pre-
pared through the traditional written way may be converted
to an electronic document if transmitted or received or later
recorded electronically.
The rule also emphasizes that an electronic document is
one that may be used for any of the following purposes:
( a ) To establish a right;
(b) To extinguish an obligation;or
(c) To prove or affirm a fact (Sec. l[h], Rules on
Electronic Evidence).
1 8 0 EVIDENCE
(The Bar Lectures Series)

3. Electronic documents are the functional equivalents


of paper-based documents (Sec. 1 of Rule 3 of the Rules on
Electronic Evidence). The provision declares:

" x x x Whenever a rule of evidence refers to the


terms of a writing, document, record, instrument, memo-
randum, or any other form of writing, such term shall be
deemed to include an electronic document as defined in
these Rules."

Since, an electronic document is the functional equiva-


lent of a paper-based document, whenever a rule of evidence
makes reference to the terms of a writing, a document, a re-
cord, an instrument, a memorandum or any other form of writ-
ing, such terms are deemed to include electronic documents
(Sec. 1, Rule 3, Rules on Electronic Evidence). It is therefore
but logical to consider the rules of evidence in the Rules of
Court, including statutes containing rules of evidence, to be of
suppletory application to the Rules on Electronic Evidence in
all matters not specifically covered by the latter (Sec. 3, Rule
1, Rules on Electronic Evidence).

4. Under Sec. 1, Rule 5 of the Rules on Electronic E v i -


dence, the person offering the document has the burden to
prove its authenticity. Thus:

"SECTION 1. Burden of proving authenticity.The


person seeking to introduce the electronic document in
any legal proceeding has the burden of proving its au-
thenticity in the manner provided in this Rule."

5. The manner of authentication of an electronic docu-


ment is outlined under Sec. 2, Rule 5 of the Rules on Elec-
tronic Evidence as follows:

"Sec. 2. Manner of authentication. Before any


private electronic document offered as authentic is re-
ceived in evidence, its authenticity must be proved by
any of the following means:
(a) by evidence that it had been digitally signed
by the person purported to have been signed by the per-
son purported to have signed the same;
OBJECT AND DOCUMENTARY EVIDENCE 181
II Documentary Evidence

(b) by evidence that the appropriate security


procedures or devices as may be authorized by the Su-
preme Court or by law for the authentication of electron-
ic documents were applied to the document; or
(c) by other evidence showing its integrity and
reliability to the satisfaction of the judge."

Notice that the aforementioned rigorous requirements


for the authentication of an electronic document do not apply
to all electronic documents. Sec. 2 of Rule 5 will obviously ap-
ply only when the document is a private electronic document
and when the same is offered as an authentic document.

If the electronic document is offered simply for what it is


or for what it is claimed to be without regard to whether or not
it is authentic, Sec. 2 of Rule 5 finds no relevance. In such a
case, the electronic document has only to be identified pursu-
ant to the suppletory application of Sec. 20 of Rule 132 of the
Rules of Court. Accordingly, under the said provision, "Any
other private document need only be identified as that which
it is claimed to be."
6. W h e n for instance, a document is electronically no-
tarized, the manner of authentication under Sec. 2 of Rule 5
will not likewise apply. W h e n so notarized, it is transformed
into a public document and is to be proved not in accordance
with the Rules on Electronic Evidence but in accordance with
the Rules of Court. T h e tenor of Sec. 3, Rule 5 of the Rules on
Electronic Evidence is enlightening:

"Sec. 3. Proof of electronically notarized document


A document electronically notarized in accordance
with the Rules promulgated by the Supreme Court shall
be considered as a public document and proved as a
notarial document under the Rules of Court."

Sec. 30 of Rule 132 of the Rules of Court, provides for the


manner of proving notarial documents. In distinct terms, the
provision categorically states t h a t " . . . Every instrument duly
acknowledged or proved and certified as provided by law, may
182 EVIDENCE
(The Bar Lectures Series)

be presented in evidence without further proof, the certificate


of acknowledgment being prima facie evidence of the execution
of the instrument or document involved. (Italics supplied)

Bar 2003
(a) State the rule on admissibility of electronic
documents.
(b) xxx

Suggested answer:
(a) Electronic documents are admissible in evi-
dence. Whenever the rules of evidence refer to the terms
of a writing, document, record, instrument, memorandum
or any other form of writing, such term shall be deemed
to include an electronic document as defined in the Rules
on Electronic Evidence (Sec. 1, Rule 3, Rules on Electronic
Evidence). If it is a private electronic document offered
as authentic, its authenticity need to be proven by the
person introducing the document before it is admitted in
evidence (Sec. 1 and 2, Rule 5, Rules on Electronic Evi-
dence).
b) xxx

Evidentiary Concepts Involved in the Presentation of Docu-


mentary Evidence

To be admissible, documentary evidence, like any other


evidence must be relevant and competent. It is also subject to
general exclusionary rules such as the rule against hearsay,
best evidence rule and parol evidence rule. Thus, depending
upon the specific purpose for which the contents of the docu-
ment is offered, there are certain inevitable issues which may
arise in connection with the admissibility of the document
aside from the issue of relevance. First, has the document
been authenticated? Is it relevant? Is it the best evidence? Is it
a mere parol evidence and so must be excluded? Is it hearsay
and therefore, must be rejected? It would therefore be criti-
cal to remember that whenever a documentary evidence is
OBJECT AND DOCUMENTARY EVIDENCE 183
A Best Evidence Rule

involved, the best evidence rule, the parol evidence rule and
the hearsay rule, or anyone of these rules may come into play.
On the other hand, where the evidence is offered as an object
evidence, the best evidence rule, the parol evidence rule, and
the hearsay rule find no application.

Requisites for Admissibility of Documentary Evidence


T h e following are the requisites for the admissibility of
documentary evidence:

( a ) T h e document must be relevant;


( b ) T h e evidence must be authenticated;
( c ) T h e document must be authenticated by a com-
petent witness; and
( d ) T h e document must be formally offered in evi-
dence.

A Best Evidence Rule

Concept of "Best Evidence"


1. T h e term "best evidence" as used in the "best evi-
dence rule" has been a source of misconception. It has often
been misunderstood and given a meaning it does not deserve.
Despite the word "best," the rule does not proclaim itself as
the highest and most reliable evidence in the hierarchy of evi-
dence. The term "best" has nothing to do with the degree of its
probative value in relation to other types of evidentiary rules.
It is not intended to mean the "most superior" evidence. More
accurately, it is the "original document" rule, or the "primary
evidence" rule.
2. The rule is not intended to mean that a weaker evi-
dence be substituted by a stronger evidence. It merely com-
prehends a situation where the evidence offered is substitu-
tionary in nature when what should be offered is the original
evidence (State vs. Flaucher [Iowa] 223 N W 2 d 239).
184 EVIDENCE
(The Bar Lectures Series)

3. The only actual rule that the 'best evidence' phrase


denotes today is the rule requiring the production of the o r i g t
nal writing, the rationale being:

" . . . (1) that there is a substantial hazard of inac-


curacy in the human process of making a copy by hand-
writing or typewriting, and (2) as respects oral testimony
purporting to give from memory the terms of a writing,
there is a special risk of error, greater than in the case
of attempts at describing other situations generally. In
the light of these dangers of mistransmision, accompany-
ing the use of written copies or of recollection, is largely
avoided through proving the terms by presenting the writ-
ing itself, the preference for the original writing is justi-
fied" (Handbook of the Law on Evidence, McCormick, 409
cited in The Consolidated Bank and Trust Corporation v.
Del Monte Motor Works, Inc., G.R. No. 143338, July 29,
2005; Emphasis supplied).

T h e theory therefore, is that the copy of the original is


not as reliable as the latter because of possible inaccuracy in
the process of copying and the danger of erroneous transmis-
sion of the original.

T h e above principle is reiterated, thus: T h e only actual


rule that the term "best evidence" denotes is the rule requir-
ing that the original of a writing must, as a general proposi-
tion, be produced (Edsa-Shangrila Hotel v. BF Corporation,
G.R. No. 145842, June 27,2008; Cynthia Roxas-Del Castillo v.
BF Corporation, G.R. No. 145873, June 27, 2008).
4. T h e 'best evidence' rule as embodied in Sec. 3 of Rule
130 of the Rules of Court provides:

"Sec. 3. Original document must be produced; ex-


ceptions. When the subject of inquiry is the contents
of a document, no evidence shall be admissible other
than the original document itself, except in the following
cases:
(a) When the original has been lost, or destroyed,
or cannot be produced in court, without bad faith on the
part of the offeror:
OBJECT AND DOCUMENTARY EVIDENCE 185
A Best Evidence Rule

(b) When the original is in the custody or under


the control of the party against whom the evidence is
offered, and the latter fails to produce it after reasonable
notice;
(c) When the original consists of numerous ac-
counts or other documents which cannot be examined
in court without great loss of time and the fact sought
to be established from them is only the general result of
the whole; and
(d) When the original is a public record in the
custody of a public officer or is recorded in a public of-
fice."

5. There is no reason to apply the "best evidence" rule


when the issue does not involve the contents of a writing. Sec.
3 of Rule 130 is clear on this point: T h e rule will come into
play only "when the subject of inquiry is the contents of a docu-
ment." T h e key therefore, to the understanding of the "best
evidence" rule is simply to remember that the rule cannot be
invoked unless the contents of a writing is the subject of ju-
dicial inquiry, in which case, the best evidence is the original
writing itself.
Thus, in a case, the Court held that the rule finds no ap-
plication to a case where a party never disputed the terms and
conditions of the promissory note, leaving the court to conclude
that as far as the parties herein are concerned, the wordings
or contents of the note are clear enough and leave no room for
disagreement. The defense of lack of consideration and the
contention that the signature in the note was not made in the
personal capacity of the respondent are defenses which do not
question the "precise wordings" of the promissory note which
should have paved the way for the application of the "best evi-
dence rule" (The Consolidated Bank and Trust Corporation v.
Del Monte Motor Works, Inc., 465 SCRA 117).
6. An earlier case ruled:

"Petitioner's insistence on the presentation of the


check in evidence as a condition sine qua non for convic-
tion under BP 22 is wrong. Petitioner anchors his argu-
186 EVIDENCE
(The Bar Lectures Series)

ment on Rule 130, Section 3 of the Rules of Court, other-


wise known as the best evidence rule. However, the rule
applies only where the content of the document is the
subject of the inquiry- Where the issue is the execution or
?yist.encfi of the document or the circumstances surround-
ing its execution, the best evidence rule does not apply
and testimonial evidence is admissible.
"The gravamen of the offense is the act of drawing
and issuing a worthless check. Hence, the subject of the
inquiry is the fact of issuance or execution of the check,
not its contents" (Arceo v. People, G.R. No. 142641, July
17, 2006; underscoring ours).

7. Where however, the purpose of the prosecution is to


prove the contents of the check, more specifically the names
of the drawer and endorsee, the date and amount and the
dishonor thereof, as well as the reason for such dishonor, it
is incumbent upon the prosecution to adduce in evidence the
original copy of the check to prove the contents thereof. Sec-
tion 3, Rule 130 of the Revised Rules on Evidence specifically
provides that when the subject of inquiry is the contents of
the document, no evidence shall be admissible other than the
original thereof (Magdayao v. People, 436 SCRA 677).

8. The R T C in one case was sustained for admitting


in evidence mere copies of certain two deeds. T h e petitioner
according to the trial court never even denied their due execu-
tion and admitted having signed the deeds. As held, the "best
evidence rule" applies only when the content of such docu-
ment is the subject of the inquiry. W h e r e the issue is only as
to whether such document was actually executed, or exists,
or on the circumstances relevant to or surrounding its execu-
tion, the best evidence rule does not apply and testimonial
evidence is admissible. A n y other substitutionary evidence is
likewise admissible without need to account for the original
(Chua Gaw v. Chua, G.R. No. 160855, April 16, 2008).
OBJECT AND DOCUMENTARY EVIDENCE
A Best Evidence Rule

B a r 1988
(a) State or explain briefly, the Best Evidence
Rule.
(b) xxx

Suggested answer:
(See Sec. 3 of Rule 130, Rules of Court).

B a r 1998
Give the reasons underlying the adoption of the fol-
lowing rules of evidence:
(a) xxx
(b) xxx
(c) Best Evidence Rule

Suggested answer:
(c) The underlying purpose of the best evidence
rule is the prevention of fraud or mistake in the proof
of the contents of a writing (29A Am Jur 29, Evidence,
1049).

B a r 1994
(1) Why is the Best Evidence Rule described as a
misnomer?
(2) xxx

Suggested answer:
The rule has been described as a misnomer because
it has often been misunderstood and given a meaning it
does not deserve. Despite the word "best," the rule does
not proclaim itself as the highest and most reliable evi-
dence in the hierarchy of evidence. The term "best" has
nothing to do with the degree of its probative value in
relation to other types of evidentiary rules. It is not in-
tended to mean the "most superior" evidence. More accu-
rately, it is the "original document" rule, or the "primary
evidence" rule.
188 EVIDENCE
(The Bar Lectures Series)

Illustrative Applications of the Best Evidence Rule

Illustration N o . 1
In a case where counsel wants to show that a marriage
ceremony took place between H and W, the following questions
were asked:

Q: Mr. Witness, where were you on September 26, 2008


at around 7:30 in the evening?
A: I was in the Manila Cathedral attending the wed-
ding of H and W where I stood as a principal spon-
sor.
Q: Can you tell this Court what happened when you
were there?
A: There was a marriage ceremony officiated by the
parish priest for the marriage of H and W.
Opposing counsel objects at this stage: "Objec-
tion, Your Honor! The best evidence is the marriage
contract!"

Should the court sustain the objection? N o ! T h e best evi-


dence rule does not apply. For the best evidence rule to apply,
two requisites must concur:
( a ) T h e subject matter must involve a document;
and
(b) T h e subject of the inquiry is the contents of the
document.
The subject of the inquiry and response in the illustra-
tion does not even involve a document. T h e evidence is purely
testimonial. Where the contents of a document is not in issue,
the best evidence rule cannot be invoked and more so when
the evidence does not involve a document. T h e illustration in-
volves an inquiry into an activity that occurred in the pres-
ence of the witness. A witness may testify as to an event he
perceived. The wedding ceremony is an event or a fact with
an existence independent of any writing. The ceremony was
observed and perceived by the witness, and one's perception
OBJECT A N D DOCUMENTARY EVIDENCE 189
A Best Evidence Rule

if relevant to an issue in the case, is a legitimate subject of


a testimony. Thus, a witness may testify that Pedro died in
his presence without presenting a death certificate. He may
also testify that he traveled to Los Angeles without necessar-
ily presenting the plane ticket and that his father gave him a
car without presenting a deed of donation, without invoking
the *best evidence' rule.

Illustration N o . 2
Q: After the wedding ceremony Mr. Witness, what hap-
pened if any?
A The priest asked all sponsors to sign a document.
Q: Did you and the other sponsors sign the document?
A- We all did, Sir.
Q: How about H and W?
A They also signed, Sir.
Q: How about the priest?
A He signed the document, Sir.
Q: By the way, what document did all of you sign?
A The marriage contract, Sir.

T h e opposing counsel objects: "Objection, Your Honor!


T h e best evidence is the marriage contract. Counsel should
show the marriage contract."
Should the objection be sustained? N o ! As in the first il-
lustration, the best evidence rule does not apply. While it is
conceded that a document is involved in the question and re-
sponse, the inquiry involved the existence and execution of
the marriage contract. An inquiry into these matters does not
bring the best evidence rule into operation there being no in-
quiry as to the contents of the document. In the words of the
Rules of Court, the best evidence rule applies only when the
subject of inquiry is the contents of a document (Sec. 3, Rule
130, Rules of Court). Thus, a witness may be asked whether
190 EVIDENCE
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or not he sold his land in writing to another, and an objection


that the deed of sale is the best evidence of the sale is im-
proper because the testimony has no reference to the contents
of the deed.
It is vital to remember that the best evidence rule applies
only when the purpose is to establish the terms of a writing.
When the evidence introduced concerns some external fact
about a writing like its existence, execution or delivery with-
out reference to its terms, the rule cannot be invoked (People v.
Tandoy, 192 SCRA 28; 4 Wigmore On Evidence, 1178, 1188;
People v. Bago, 330 SCRA 115). T a k e note that the subject
of inquiry under the best evidence rule is the contents of a
writing, not the truth thereof. W h e r e the truth is in issue, the
hearsay rule will now be involved.

If that writing is offered not to prove its contents but to


prove some other fact like its existence, or the size of the ma-
terial on which it is written, the writing is not a documen-
tary evidence but a mere object evidence. T h e best evidence
rule does not apply to an object evidence. Hence, the original
need not be presented. The existence or condition of that writ-
ing may be proved by any other evidence, like oral testimony
(People v. Tandoy, 192 SCRA 28).

Illustration N o . 3
Assume that we are continuing the hypothetical involving
the testimony of a sponsor of the wedding:

Q: Mr. Witness, you testified that you, the other spon-


sors, as well as both H and W, signed the marriage
contract. Is that right?
A: That is correct, Sir.
Q: What did the marriage contract contain as to the
date of the marriage and the name of the officiating
priest?
Opposing counsel objects: "Objection, Your
Honor! Counsel should present the marriage con-
tract under the best evidence rule!"
OBJECT AND DOCUMENTARY EVIDENCE 191
A Best Evidence Rule

Should the objection be sustained? It should. In this illus-


tration, the best evidence rule is properly invoked. Here coun-
sel is trying to prove some contents in the document through
oral testimony without producing the original document.

B a r 1994
At the trial of Ace for the violation of the Dangerous
Drugs Act, the prosecution offers in evidence a photocopy
of the marked bills used in the "buy-bust" operation. Ace
objects 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) xxx
(2) Is the photocopy admissible in evidence?

Suggested answer:
(1) xxx
(2) The photocopy of the bills being object evidence,
is admissible in evidence without violation of the best evi-
dence rule. The rule applies only to documentary evidence
and not to object evidence.

When Document is Merely Collaterally in Issue


1. W h e n a document is involved in the inquiry but the
document is only collaterally in issue, the best evidence rule
does not apply. A document is collaterally in issue when the
purpose of introducing the document is not to establish its
terms but to show facts that have no reference to its contents
like its existence, condition, execution or delivery.
2. If a witness testifies that the victim was writing a
letter when he was shot by the accused, the judge would likely
rule against the party who insists on the presentation of the
letter because the letter is not the subject of an important is-
sue in the case and hence, is merely collateral.
3. If a witness testifies that he actually saw the debtor
tender payment of his obligation to the creditor, he need not
192 EVIDENCE
(The Bar Lectures Series)

be required to produce the original promissory note evidenc-


ing the debt because it is the act of payment which is the focal
point of the testimony, not the document. The document need
not be likewise presented when the witness merely testifies to
the delivery of a deed of sale by X to Y because the contents of
the document itself is not the purpose of the testimony.

Reason for the Best Evidence Rule


1. What is the purpose for presenting the original of a
document? The basic premise justifying the rule is the need
to present to the court the exact words of a writing where
a slight variation of words may mean a great difference in
rights. An ancillary justification for the rule is the prevention
and detection of fraud. T h e rule is also justified by the need
to avoid unintentional or intentional mistaken transmissions
of the contents of a document through the introduction of se-
lected portions of a writing to which the adverse party has no
full access (McCormick on Evidence, 3rd Ed., 703-705; Bagley
v. McMickie, 9 Cal 430).

2. To prevent possible erroneous interpretations or dis-


tortions of a writing, an objection based on the best evidence
rule prevents a party from proving the contents of a writing by
a copy thereof or by oral testimony if the original writing itself
is available.

E x a m p l e : In an action against a taxpayer, the best evi-


dence obtainable under the then Sec. 16 of the 1977 N I R C as
amended, does not include mere photocopies of records and
documents. The copies presented have no probative weight
and are mere scraps of paper. T h e copies cannot prove any de-
ficiency in the taxes of the taxpayer (Commissioner of Internal
Revenue v. Hantex Trading Co., Inc., 454 SCRA 301).

3. A purpose of the rule requiring the production by the


offeror of the best evidence is the prevention of fraud, because
if a party is in possession of such evidence and withholds it
and presents inferior or secondary evidence in its place, the
presumption is that the latter evidence is withheld from the
OBJECT AND DOCUMENTARY EVIDENCE 193
A Beat Evidence Rule

court and the adverse party for a fraudulent or devious pur-


pose which its production would expose and defeat. As long as
the original evidence can be had, the court should not receive
in evidence that which is substitutionary in nature, such as
photocopies, in the absence of any clear showing that the orig-
inal writing has been lost or destroyed or cannot be produced
in court. Such photocopies must be disregarded, being inad-
missible evidence and barren of probative weight (Magdayao
v. People, 436 SCRA 677).

B a r 1998
Give the reasons underlying the adoption of the fol-
lowing rules of evidence:
(a) xxx
(b) xxx
(c) Best Evidence Rule

Suggested answer:
(c) The underlying purpose of the best evidence
rule is the prevention of fraud or mistake in the proof
of the contents of a writing (29A Am Jur 29, Evidence,
1049; Please refer to the above discussion).

Waiver of the Rule


T h e best evidence rule may be waived if not raised in
the trial (Zenith Radio Corp. v. Matsushita Electric Industrial
Co., [ED Pa] 505 F Supp 1190). In one case, although the mar-
riage certificate, the marriage license, and other pieces of doc-
umentary evidence were only photocopies, the fact that these
have been examined and admitted by the trial court, with no
objections having been made as to their authenticity and due
execution, means that these documents are deemed sufficient
proof of the facts contained therein (Sy v. Court of Appeals,
330 SCRA 550).
194 EVIDENCE
(The Bar Lectures Series)

What To Do To Apply The Best Evidence Rule


1. The first step to apply the best evidence rule is to
determine the matter inquired into. If the inquiry involves
a document and its contents are the subject of that same in-
quiry, the best evidence rule applies and must therefore, be
complied with. The procedural compliance of the rule requires
the presentation of the original document, and not a copy of
that document. So long as the original is available, no other
evidence can be substituted for the original because the origi-
nal is the "best evidence" in relation to mere copies or substi-
tutes thereof.
2. Now what is to be done if for one reason or another,
the original cannot be presented in evidence? If this happens,
the second step now comes into play. This step involves two
stages: (1) Finding an adequate legal excuse for the failure to
present the original; and (2) Presenting a secondary evidence
sanctioned by the Rules of Court.
If the rule were to be restated into a simple formula, the
rule would be: "Present the original, except when you can jus-
tify its unavailability in the manner provided for by the Rules
of Court."

Excuses for Not Presenting the Original Document


The excuses for the non-production of the original docu-
ment refer to the instances when the original does not have to
be produced even when the contents of the document are the
subjects of inquiry. These instances are those mentioned in
Sec. 3, Rule 130 of the Rules of Court, namely:

( a ) W h e n the original has been lost or destroyed,


or cannot be produced in court, without bad faith on the
part of the offeror;

(b) W h e n the original is in the custody or under the


control of the party against whom the evidence is offered,
and the latter fails to produce it after reasonable notice;
(c) When the original consists of numerous accounts
or other documents cannot be examined in court without
OBJECT AND DOCUMENTARY EVIDENCE 196
A Best Evidence Rule

great loss of time and the fact sought to be established


from them is only the general result of the whole; and
( d ) W h e n the original is a public record in the cus-
tody of a public officer or is recorded in a public office.

B a r 1992
Ajax Powder Corporation, a utility company, sued
in the Regional Trial Court to enforce a supposed right of
way over a property owned by Simplicio. At the ensuing
trial, Ajax presented its retired field auditor who testified
that he knows for a fact that a certain sum of money was
periodically paid to Simplicio for some time as consider-
ation for a right of way pursuant to a written contract.
The original contract was not presented. Instead, a pur-
ported copy, identified by the retired field auditor as such,
was formally offered as part of his testimony. Rejected by
the trial court, it was finally made the subject of an offer
of proof by Ajax.
Can Ajax validly claim that it has sufficiently met
its burden by proving the existence of the contract estab-
lishing its right of way? Explain.

Suggested answer:
Ajax cannot validly make the claim. When the sub-
ject of the inquiry is the contents of a writing, as in the
instant case, the original document must be presented in
evidence. If secondary evidence is to be offered like a copy
thereof, the proponent has to lay the basis for the admis-
sion of the copy of the document. This Ajax failed to do.

Loss, Destruction or Unavailability of the Original


1. Secondary evidence like a copy of the original is ad-
missible as an exception if the original writing has been lost,
destroyed or cannot be produced in court without bad faith
on the part of the party offering the secondary evidence. This
exception does not only cover loss or destruction but also other
reasons for the failure to produce the original in court even if
196 EVIDENCE
(The Bar Lectures Series)

the original is not lost or destroyed, as when the original is


beyond the territorial jurisdiction of the court (Reynolds On
Evidence, 2nd Ed., 61; PNB v. Olila, 98 Phil. 1002). Also fall-
ing within this exception are cases where the original consists
of inscriptions on immovable objects and monuments such as
tombstones because they cannot be produced in court (Smith
v. Patterson, 95 Mo. 525, 8 S.W. 567; Jones on Evidence, 4th
Ed., 205).
2. Under Sec. 5 of Rule 130, secondary evidence may be
admitted only by laying the basis for its production. Specifi-
cally, laying such basis requires compliance with the follow-
ing:
( a ) The offeror must prove the execution and exis-
tence of the original document;
(b) The offeror must show the cause of its unavail-
ability; and
(c) The offeror must show that the unavailability
was not due to his bad faith.
The above having been done, the contents of the docu-
ment may now be proven by secondary evidence.
3. Accordingly, the correct order of proof is as follows:
existence, execution, loss and contents, although at the sound
discretion of the court, this order may be changed if necessary
(Citibank, N.A. Mastercard v. Teodoro, 411 SCRA 577).
The due execution and authenticity of the document
must be proved either: ( a ) by anyone who saw the document
executed or written, or ( b ) by evidence of the genuineness of
the signature or handwriting of the maker (Ramos v. Court of
Appeals, 302 SCRA 589).

Before secondary evidence can be presented, it is imper-


ative that all the originals of a deed must be accounted for
(Heirs of Teodoro Dela Cruz v. Court of Appeals, 298 SCRA
172).

4. The burden of proof in establishing loss or destruc-


tion of the original is on the proponent of the secondary evi-
OBJECT AND DOCUMENTARY EVIDENCE 197
A Best Evidence Rule

dence (Burroughs Wellcome Co. v. Commercial Union Ins. Co


[SD NY] 632 F Supp 1213). T h e loss of the original need not
be shown to be beyond all possibility of mistake. A reasonable
probability of its loss is sufficient like by showing that there
was a bona fide and diligent but fruitless search for the docu-
ment (Paylago v. Jarabe, 22 SCRA 1247).

5. After complying with the requirements for laying


the basis for the introduction of secondary evidence, the offer-
or may now be allowed to prove the contents of the documents
by secondary evidence.
T h e presentation of secondary evidence must be in the
following order:
( a ) a copy of the original;
( b ) a recital of the contents of the document in some
authentic document; or
( c ) by the testimony of witnesses (Sec. 5, Rule 130,
Rules of Court).
6. T h e hierarchy of preferred secondary evidence must
be strictly followed. Because of the requirements of the rule,
the testimony of the witness to prove the contents of the lost
original is inadmissible if a copy is available or if there is a
recital of the contents of the writing in some authentic docu-
ment. Under the Rules of Court, a copy of the original is the
best secondary evidence. If it is available, other secondary evi-
dence will not be admitted.
Secondary evidence refers to evidence other than the
original instrument or document itself (EDSA Shangri-La
Hotel and Resort, Inc. u. BF Corporation, G.R. No. 145873,
June 27, 2008).
7. The presentation or the offer of the original may be
waived. 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 if 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
198 EVIDENCE
(The Bar Lectures Series)

its probative value (Heirs of Teodoro Dela Cruz v. Court of Ap-


peals, 298 SCRA 172).

Bar 1997
When A loaned a sum of money to B, A typed a sin-
gle copy of the promissory note, which they both signed.
A. made two photocopies of the promissory note, giving
one copy to B and retaining the other copy. A entrusted
the typewritten copy to his counsel for safekeeping. The
copy with A's counsel was destroyed when the law office
was burned.
(a) As counsel for A, how will you prove the loan
given by A to B?

Suggested answer:
(a) The loan may be proved by the photocopy as
long as A lays the foundation or lays the basis for the in-
troduction of secondary evidence, to wit: (a) the existence
and due execution of the original, and (b) the loss of the
original without bad faith on his part (Sec. 5, Rule 130,
Rules of Court).

Original is in the Custody or Control of the Adverse Party


1. A showing that the original document is in the custo-
dy or under the control of the adverse party does not ipso facto
authorize the introduction of secondary evidence to prove its
contents. The party who seeks to present secondary evidence
must lay a basis for its introduction. L a y i n g the basis requires
proof of the following:

( a ) that the original exists;


(b) that said document is under the custody or con-
trol of the adverse party;

(c) that the proponent of secondary evidence has


given the adverse party reasonable notice to produce the
original document; and
( d ) that the adverse party failed to produce the
original document despite the reasonable notice.
OBJECT AND DOCUMENTARY EVIDENCE 199
A Best Evidence Rule

2. In one case, the Supreme Court emphasized that the


mere fact that the original of the writing is in the custody or
control of the party against whom it is offered does not war-
rant the admission of secondary evidence. The offeror must
prove that he has done all in his power to secure the best evi-
dence by giving notice to the said party to produce the docu-
ment. The notice may be in the form of a motion for the pro-
duction of the original, or made in open court in the presence
of the adverse party, or via a subpoena duces tecum, provided
that the party in custody of the original has sufficient time
to produce the same. W h e n such party has the original of the
writing and does not voluntarily offer to produce it or refuses
to produce it, secondary evidence may be admitted (Magdayao
v. People, 436 SCRA 677).

3. After the foundational requirements for the introduc-


tion of secondary evidence have been complied with, second-
ary evidence may now be presented as in the case of loss (Sec.
6, Rule 130, Rules of Court). This means that the contents of
the document may now be proven by a copy of the document, a
recital of its contents in some authentic document, or by testi-
mony of witnesses in the order stated (Sec. 5, Rule 130, Rules
of Court).

When the Original Consists of Numerous Accounts


1. Under this exception, secondary evidence is admis-
sible:
( a ) if the original consists of numerous accounts or
other documents;
(b) they cannot be examined in court without great
loss of time; and
(c) the fact sought to be established from them is
only the general result of the whole (Sec. 3[c], Rule 130,
Rules of Court).
2. The main reason for this exception lies in the de-
termination by the court that production of the original writ-
ings and their examination in court would result in great loss
200 EVIDENCE
(The Bar Lectures Series)

of time considering that the evidence desired from the volu-


minous accounts is only the general result of the whole like
a summary of the accounts. Under this exception, a witness
may be allowed to offer a summary of a number of documents,
or the summary itself may be admitted if the underlying docu-
ments are so voluminous and intricate as to make an examina-
tion of all of them impracticable. They may also be presented
in the form of charts or calculations (29A Am Jur, Evidence,
1059-1060).
For example, an accountant's written summary of some
150,000 sales invoices for goods sold by the plaintiff may be al-
lowed under this exception over the objection of the defendant
that the sales invoices constitute the original documents and
should be presented.
The voluminous records must however, be made acces-
sible to the adverse party so that the correctness of the sum-
mary of the voluminous records may be tested on cross-exami-
nation (Compania Maritima v. Allied Free Workers Union, 77
SCRA 24).

Original Document is a Public Record


There are instances when the original of a document is a
public record or is recorded in a public office (Sec. 3[d], Rule
130, Rules of Court). Public records are generally not to be re-
moved from the places where they are recorded and kept (Sec.
26, Rule 132, Rules of Court). For this reason, the proof of the
contents of a document which forms part of a public record
may be done by secondary evidence. This evidence is a certi-
fied true copy of the original. This certified copy is to be issued
by the public officer in custody of the public records (Sec. 7,
Rule 130, Rules of Court).

Effect of Not Offering a Document in Evidence After Calling


for its Production and Inspection

If the party who calls for the production of a document


does not offer the same in evidence, no unfavorable inference
OBJECT AND DOCUMENTARY EVIDENCE 201
A Best Evidence Rule

may be drawn from such failure. This is because under Sec. 8


of Rule 130, a party who calls for the production of a document
is not required to offer it. T h e pertinent provision states:

"Sec. 8. Party who calls for document not bound


to offer it. A party who calls for the production of a
document and inspects the same is not obliged to offer
it as evidence."

Meaning of Original

1. Section 4, of Rule 130 elucidates on the concept of


the term "original," thus:

"Sec. 4. Original of document.


(a) The original of a document is one the con-
tents of which are the subject of inquiry.
(b) When the document is in two or more copies
executed at or about the same time, with identical con-
tents, all such copies are equally regarded as originals.
(c) When an entry is repeated in the regular
course of business, one being copied from another at
or near the time of the transaction, all the entries are
likewise equally regarded as originals."

2. T h e layman's concept refers to the original as the


first one written and from which mere copies are made, tran-
scribed or imitated. Accordingly, from this perspective, there
can only be one original. This is not however, so. Under the
Rules of Court, there are instances when subsequent docu-
ments are also regarded as originals. One example is that
provided for in Sec. 4(c) of Rule 130. Here, when an entry is
repeated in the regular course of business, one being copied
from another at or near the time of transaction, all the entries
are equally regarded as originals.
To be considered originals under this provision, certain
requisites must be complied with:
( a ) there must be entries made and repeated in the
regular course of business; and
202 EVIDENCE
(The Bar Lectures Series)

(b) the entries must be at or near the time of the


transaction.
Thus, if a data entry clerk makes an entry of a trans-
action which is repeated several times for the files of each
department of the company, each document where the entry
was made is an original as long as the entries are made at
or near the time of the transaction and in the regular course
of business. Also, when a lawyer writes a pleading in two or
more copies which are executed at the same time, with identi-
cal contents, each document is an original (Sec. 4[b], Sec. 130,
Rules of Court). So are writings with identical contents made
by printing, mimeographing, lithography and other similar
methods executed at the same time. Thus, each newspaper
sold in the stand is an original in itself.

3. When carbon sheets are inserted between two or


more sheets of paper with the writing and the signature on
the first sheet being reproduced in the sheets beneath by
the same stroke of the pen or writing medium, all the sheets
are deemed originals (Trans-Pacific Industrial Supplies, Inc.
u. Court of Appeals, 235 SCRA 494; People v. Tan, 105 Phil.
1242). Where a document is executed in duplicate or multi-
plicate form, each one of the parts is primary evidence of the
contents of the document, and the other need not be produced.
In such a case, each is deemed an original (Anglo-American
Packing etc. Co. v. Cannon, 31 Fed. 313 cited in Jones On Evi-
dence, 209). If several copies of a document are made at the
same by inserting on each page a carbon paper and only one of
them is signed, the signed copy is the original and the others
are only copies (Liberty Chair Co. v. Crawford, 193 N.C. 531).

4. Under the Rules of Court, "the original of a docu-


ment is one the contents of which are the subject of inqui-
ry" (Sec. 4[a], Rule 130, Rules of Court). Thus, when the rule
speaks of an "original," the rule obviously does not refer to the
original of an object evidence but an original of a documen-
tary evidence. In a documentary evidence, its contents are the
subjects of the inquiry. It is not therefore, legally accurate to
speak of the original of a gun.
OBJECT AND DOCUMENTARY EVIDENCE 203
A Best Evidence Rule

5. In a suit against the telegraph company for failure


to transmit a message, the original is the message submitted
to the company for transmission (Jones on Evidence, 210 cit-
ing Conyers v. Postal Cable Co. 92 Ga. 619, 19 S.E. 253 Am.
St. Rep. 100). If the suit is for damages by the sender against
the telegraph company because of delay in transmission, the
original would be the message as received by the recipient
(Jones on Evidence, 210 citing Collins v. Western Union Tel.
Co., 145 Ala. 412 41 So. 160, 8 ann. Cas. 268).

B a r 2001
Pedro filed a complaint against Lucio for the recovery
of a sum of money based on a promissory note executed
by Lucio. In his complaint, Pedro alleged 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 Pedro is willing, he may, upon
request of Lucio give the latter up to 120 days to pay the
note. During the hearing, Pedro testified that the truth
is that the agreement between him and Lucio is for the
latter to pay immediately after 90 days. Also, since the
original note was with Lucio and the latter would not
surrender to Pedro the original note which Lucio kept in
a place about one day's trip from where he received the
notice to produce the note and inspite of such notice to
produce the same within six hours from receipt of such
notice, Lucio failed to do so. Pedro presented a copy of the
note which was executed at the same time as the original
with identical contents.
(a) xxx
(b) Over the objection of Lucio, can Pedro present a
copy of the promissory note and have it admitted as valid
evidence in his favor?

Suggested answer:
Pedro will be allowed to present the note it being also
an original under the Rules. 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. 4[b], Rule 130, Rules of Court).
204 EVIDENCE
(The Bar Lectures Series)

Bar 1997
When A loaned a sum of money to B, A typed a sin-
gle copy of the promissory note, which they both signed.
A made two photocopies of the promissory note, giving
one copy to B and retaining the other copy. A entrusted
the typewritten copy to his counsel for safekeeping. The
copy with A's counsel was destroyed when the law office
was burned.
(a) In an action to collect the promissory note,
which is deemed to be the "original" copy for the purpose
of the "Best Evidence Rule"?
(b) Can the photocopies in the hands of the parties
be considered "duplicate" originals?
(c) xxx

Suggested answers:

(a) The original is the one typed and signed by both


parties and which was lost when the office of the counsel
of A was burned.
(b) The photocopies are not duplicate originals.
They cannot be deemed as having been made at the same
time with the original because they were not signed un-
like the original.
(c) xxx

Originals Under the Rules on Electronic Evidence


1. Under Section 1, Rule 4 of the Rules on Electronic
Evidence, the original of the electronic document is its print-
out or output readable by sight or other means, provided it
is shown to reflect the data accurately (Sec. 1, Rule 4, Rules
on Electronic Evidence; MC Industrial Sales Corporation v.
Ssangyong Corporation, G.R. No. 170633, October 17, 2007).

"SECTION 1. Original of an electronic document


An electronic document shall be regarded as the
equivalent of an original document under the Best
OBJECT AND DOCUMENTARY EVIDENCE 205
A Beat Evidence Rule

Evidence Rule if it is a printout or output readable by sight


or other means, shown to reflect the data accurately."

2. T h e copies of the printout or output readable by sight


referred to in the immediately preceding paragraph are also
deemed originals where the copies were executed at or about
the same time w i t h identical contents or is a counterpart pro-
duced by the same impression as the original or from the same
matrix, or by other means and which accurately reproduces
the original (Sec. 2, Rule 4, Rules on Electronic Evidence).

"SEC. 2. Copies as equivalent of the originals.


When a document is in two or more copies executed
at or about the same time with identical contents, or is
a counterpart produced by the same impression as the
original, or from the same matrix, or by mechanical or
electronic re-recording, or by chemical reproduction, or
by other equivalent techniques which reproduces the
original, such copies or duplicates shall be regarded as
the equivalent of the original."

3. For the court not to consider the copies mentioned


in the immediately preceding paragraph as having the same
effect as originals, a genuine question as to the authenticity of
the original must be raised, or that the circumstances would
make it unjust or inequitable to admit the copy in lieu of the
original (Sec. 2, Rule 4, Rules on Electronic Evidence). The ap-
plicable rule provides:

"Section 2. Copies as equivalent of the originals.


xxx
Notwithstanding the foregoing, copies or dupli-
cates shall not be admissible to the same extent as the
original if:
(a) a genuine question is raised as to the authen-
ticity of the original; or
(b) in the circumstances it would be unjust or in-
equitable to admit a copy in lieu of the original."
206 EVIDENCE
(The Bar Lectures Series)

Bar 2003
(a) xxx
(b) When is an electronic evidence regarded as be-
ing the equivalent of an original document under the Best
Evidence Rule?

Suggested answer:
Under the Rules on Electronic Evidence, the original
of the electronic document is its printout or output read-
able by sight or other means, shown to reflect the data
accurately (Sec. 1, Rule 4, Rules on Electronic Evidence).
The copies of the printout or output readable by
sight referred to in the immediately preceding paragraph
are also deemed originals where the copies were executed
at or about the same time with identical contents, or is
a counterpart produced by the same impression as the
original, or from the same matrix, or by mechanical or
electronic re-recording, or by chemical reproduction, or
by other equivalent techniques which accurately repro-
duces the original (Sec. 2, Rule 4, Rules on Electronic Evi-
dence).

Original Printout of Facsimile Transmissions


1. Is a printout of a facsimile transmission an electron-
ic data message or electronic document?
This question was answered by the Supreme Court in
MCC Industrial Sales Corporation v. Ssanyong Corporation
(G.R. No. 170633, October 17, 2007).
The Court in this case concluded that the terms "electronic
data message" and "electronic document," as defined under the
Electronic Commerce Act of 2000, do not include a facsimile
transmission and cannot be considered as electronic evidence.
It is not the functional equivalent of an original under the Best
Evidence Rule and is not admissible as electronic evidence.
Accordingly, the congressional deliberations on the Elec-
tronic Commerce Act show that when Congress formulated the
OBJECT AND DOCUMENTARY EVIDENCE 207
A Best Evidence Rule

term "electronic data message," it intended the same meaning


as the term "electronic record" in the Canada law which ex-
cludes telexes or faxes, except computer-generated faxes from
the term, "electronic data message."

MCC u. Ssangyong explained that while Congress antici-


pated future developments in communications and comput-
er technology when it drafted the law, it excluded the early
forms of technology, like telegraph, telex and telecopy (except
computer-generated faxes, which is a newer development as
compared to the ordinary fax machine to fax machine trans-
mission), when it defined the term "electronic data message."

T h e Court further observed that the Implementing Rules


and Regulations ( I R R ) of the Electronic Commerce Act went
beyond the parameters of the l a w when it included in the defi-
nition of "data message," the phrase "but not limited to, elec-
tronic data interchange (EDI), electronic mail, telegram, telex
or telecopy." T h e inclusion of this phrase in the I R R offends a
basic tenet in the exercise of the rule-making power of admin-
istrative agencies. After all, the power of administrative of-
ficials to promulgate rules in the implementation of a statute
is necessarily limited to what is found in the legislative enact-
ment itself. T h e implementing rules and regulations of a law
cannot extend the law or expand its coverage, as the power to
amend or repeal a statute is vested in the Legislature. Thus,
if a discrepancy occurs between the basic law and an imple-
menting rule or regulation, it is the former that prevails, be-
cause the law cannot be broadened by a mere administrative
issuancean administrative agency certainly cannot amend
an act of Congress.

T h e Court explained that since a facsimile transmission is


not an "electronic data message" or an "electronic document,"
and cannot be considered as electronic evidence by the Court,
with greater reason is a photocopy of such fax transmission
not electronic evidence.
"Accordingly, in an ordinary facsimile transmission,
there exists an original paper-based information or data that
is scanned, sent through a phone line and reprinted at the
208 EVIDENCE
(The Bar Lectures Series)

receiving end. Be it noted that in enacting the Electronic Com-


merce Act of 2000, Congress intended virtual or paperless
writings to be the functional equivalent and to have the same
legal function as paper-based documents."
To determine whether photocopies of facsimile transmis-
sions are admissible in evidence, we apply the ordinary Rules
on Evidence, since the Electronic Commerce Act of 2000 and
the Rules on Electronic Evidence cannot be applied to facsim-
ile transmissions.
2. In 1997 in Garvida v. Sales, Jr. (338 Phil. 484), the
Court had explained the unacceptability of filing pleadings
through fax machines. In so doing the Court ruled:

"A facsimile or fax transmission is a process involv-


ing the transmission and reproduction of printed and
graphic matter by scanning an original copy, one elemen-
tal area at a time, and representing the shade or tone of
each area by a specified amount of electric current. The
current is transmitted as a signal over regular telephone
lines or via microwave relay and is used by the receiver
to reproduce an image of the elemental area in the proper
position and the correct shade. The receiver is equipped
with a stylus or other device that produces a printed re-
cord on paper referred to as a facsimile.
" . . . A facsimile is not a genuine and authentic plead-
ing. It is. at best, an exact copy preserving all the marks
of an original. Without the original, there is no way of
determining on its face whether the facsimile pleading is
genuine and authentic and was originally signed by the
party and his counsel. It may, in fact, be a sham plead-
ing." (Underscoring supplied)

B Parol Evidence Rule


( R u l e 130)

Contracts and the Parol Evidence Rule


1. A m o n g the various evidentiary rules, it is the parol
evidence rule that has direct application to the law on con-
OBJECT A N D DOCUMENTARY EVIDENCE 209
B Parol Evidence Rule

tracts. T h e rule however, applies only to contracts which the


parties have decided to set forth in writing i.e., as Sec. 9 of
Rule 130 provides: "when the terms of an agreement have
been reduced to writing" (Sec. 9, Rule 130). W h e n the agree-
ment is merely oral, the parol evidence rule should not be ap-
plied.

2. A contract is a "meeting of the minds" between two


persons. This is how a contract is described by A r t . 1305 of
the Civil Code. T h e Civil Code does not define a contract as a
document, a deed or an instrument. T h e document, the deed
and the instrument are merely the tangible evidences of a
contract. It is the meeting of the minds between the parties
that constitutes the contract.

T h e r e can be a contract of sale for instance, without a


document. By the clear terms of the Civil Code, a contract of
sale may be made in writing, or by word of mouth, or partly
in writing and partly by word of mouth, or may even be in-
ferred from the conduct of the parties (Art. 1483, Civil Code of
the Philippines). T h e l a w further provides that contracts shall
be obligatory, in whatever form they may have been entered
into, provided all the requisites for their validity are present
(Art. 1356, Ibid.), namely consent, object and cause (Art. 1318,
Ibid.).

W h i l e as a rule, a written form is not required for the ex-


istence of a contract because contracts are perfected by mere
consent (Art. 1315, Ibid.), it would be legally convenient for
the parties to reduce the contract in written form in order to
have a tangible and incontrovertible evidence of a previous
meeting of the minds.
3. Before executing a written agreement, the parties
normally engage in preliminary oral negotiations. They may
even exchange letters or notes constituting offers and coun-
ter-offers which of course, are not intended to be contracts in
themselves but are merely parts of the negotiation process.
W h e n the minds of the parties finally agree on the object and
cause or consideration of the contract, a contract is born. In
legal parlance, a contract is perfected. The perfected contract
210 EVIDENCE
(The Bar Lectures Series)

may be oral or written, or partly oral and partly written. The


form of the contract as a rule, does not matter. As long as
there is a "meeting of the minds," there is a perfected contract.
Even a purely oral agreement does not negate the existence of
a contract because under this jurisdiction, even an oral agree-
ment gives rise to a contract. There is a contract because there
is a meeting of the minds (Art. 1315, Civil Code of the Philip-
pines).
4. The decision of the parties to reduce the agreement
in written form is critical to the application of the parol evi-
dence rule. When they execute a written contract, the parol
evidence rule ipso facto comes into play. Under Sec. 9 of Rule
130, "...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 succes-
sors in interest, no evidence of such terms other than the con-
tents of the written agreement" (Italics supplied).

Application of the Parol Evidence Rule


1. The "parol evidence rule" is embodied in Sec. 9, Rule
130 of the Rules of Court which provides:

"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 succes-
sors 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 pleadings:
[ok
(a) An intrinsic ambiguity, mistake or imperfec-
tion 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
OBJECT A N D DOCUMENTARY EVIDENCE 211
B Parol Evidence Rule

(d) The existence of other terms agreed to by the


parties or their successors in interest after the execu-
tion of the written agreement.
The term "agreement" includes wills.

2. T h e term "parol" evidence means something 'oral' or


verbal but with reference to contracts, "parol evidence" means
extraneous evidence or evidence aliunde (Black's Law Diction-
ary, 5th Ed., 1005,1006).

As used in the Rules of Court, the term refers not only to


oral but also to written evidence which are outside of or extra-
neous to the written contract between the parties.
3. T h e parol evidence rule becomes operative when the
issues in the litigation are the terms of a written agreement.
In clear cut language, the basic question that would
bring the parol evidence rule into play is: "What have the par-
ties agreed upon?" T h e appropriate answer would be: "Look
into the written agreement and not elsewhere because only the
contents of the written agreement are admissible in evidence."
There is no need to look into any other source because such
sources are barred by the rule. They are barred because as
Sec. 9 of Rule 130 provides, the writing "...is considered as
containing all the terms agreed upon..."

4. T h e provisions of Sec. 9 of Rule 130 consider the


written agreement as the embodiment of all the terms of said
agreement, i.e., a total integration of said agreement. Because
the writing is considered as containing all the terms agreed
upon by the parties, the traditional distinction between par-
tial and total integration observed in traditional American ju-
risprudence appears irrelevant to the application of the parol
evidence rule in a Philippine setting. In American jurispru-
dence (29A Am Jur 2d 1116-1120), when a writing is on its
face incomplete, said writing is only a partial integration of the
agreement of the parties hence, parol evidence is not barred
to prove matters not covered by the writing. Parol evidence is
however, barred when the writing is a total integration of the
agreement.
212 EVIDENCE
(The Bar Lectures Series)

Under the Rules of Court, the written agreement is al-


ready "considered to contain all the things agreed upon." If
this be so, the written agreement already represents the final
expression of the agreement of the parties on the subject. Be-
ing a final agreement, any extraneous evidence or "parol" evi-
dence is inadmissible for any of the following purposes: ( a ) to
modify, (b) to explain, or (c) to add to the terms of the written
agreement.
5. Conformably to the parol evidence rule, the general
rule is 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, as between the parties and their suc-
cessors in interest, no evidence of such terms other than the
contents of the written agreement (Sec. 9, Rule 130, Rules of
Court; ACI Philippines, Inc. v. Coquia, G.R. No. 174466, July
14, 2008).
The parol evidence rule therefore, forbids any addition
to, or contradiction of, the terms of a written agreement by
testimony or other evidence purporting to show that different
terms were agreed upon by the parties, varying the purport
of the written contract (SeaOil Petroleum Corporation v. Au-
tocorp Group, G.R. No. 164326, October 17, 2008). W h a t e v e r
is not found in the writing is understood to have been waived
and abandoned (Edrada v. Ramos, 468 SCRA 597).
6. In general, the parol evidence rule is designed to
give certainty to written transactions, to preserve the reliabil-
ity and to protect the sanctity of written agreements.
The rationale behind the foregoing rule was explained in
Ortahez v. Court of Appeals (266 SCRA 561) where the Court
explained, thus:

"Spoken words could be notoriously undesirable


unlike a written contract which speaks of a uniform lan-
guage. Thus, under the general rule in Section 9 of Rule
130 of the Rules of Court, when the terms of an agreement
were reduced to writing, as in this case, it is deemed to
contain all the terms agreed upon and no evidence of such
terms can be admitted other than the contents thereof."
OBJECT AND DOCUMENTARY EVIDENCE 213
B Parol Evidence Rule

7. Be it noted again that the parol evidence rule does


not apply to oral agreements. For the parol evidence rule to
apply, there must be a writing. But not all writings will trig-
ger the application of the parol evidence rule. That writing
must embody an agreement. T h e tenor of Sec. 9 clearly uses
the following words: . . When the terms of an agreement have
been reduced to writing ..."

There is only one writing which although not legally an


agreement is considered to be one for purposes of the applica-
tion of the parol evidence rule. This writing is a will. The last
paragraph of Sec. 9 of Rule 130, confirms this observation,
thus: "The term "agreement" includes wills."

8. Should the "writing" that embodies the agreement of


the parties be in a particular form? N o t e that Sec. 9 of Rule
130 only makes reference to a "writing," not a public writing
or a private writing.

One case particularly well illustrates the answer to the


question. In this case, the petitioner contends that since the
promissory note is not a public instrument with the formali-
ties prescribed by l a w but a mere commercial paper, parol evi-
dence may "overcome" the contents of the promissory note.

T h e Supreme Court did not v i e w the argument with merit


and held that the rule does not specify that the written agree-
ment be a public document. T h e Court stated in the case:

"What is required is that the agreement be in writ-


ing as the rule is in fact founded on "long experience that
written evidence is so much more certain and accurate
than that which rests in fleeting memory only, that it
would be unsafe, when parties have expressed the terms
of their contract in writing, to admit weaker evidence to
control and vary the stronger and to show that the parties
intended a different contract from that expressed in the
writing signed by them." Thus, for the parol evidence rule
to apply, a written contract need not be in any particu-
lar form, or be signed by both parties. As a general rule,
bills, notes and other instruments of a similar nature are
214 EVIDENCE
(The Bar Lectures Series)

not subject to be varied or contradicted by parol or extrin-


sic evidence" (Inciong, Jr. v. Court of Appeals, G.R. No.
96405, June 26, 1996, 247 SCRA 578).

V Application of the Rule Only to Parties and Their Succes-


sors In Interest
Only the parties are bound by the parol evidence rule.
The rule that the terms of an agreement are to be proven only
by the contents of the writing itself refers to suits between
"parties to the contract and their successors in interest" (Sec.
9, Rule 130, Rules of Court). The rule does not bind suits in-
volving strangers to the contract. It applies only to the parties
to a written agreement and those who are privy to a party or
successors in interest (29A Am Jur, Evidence, 1096). Thus,
a total stranger to the writing is not bound by its terms and
is allowed to introduce extrinsic or parol evidence against the
efficacy of the wciting^.Lechugas v. Court of Appeals, 22 Phil.
310, August 6, 1986 citing HcTnvTETansen, 57 N.W. 315).

Application of the Rule to Wills


1. T h e parol evidence rule applies to contractual obli-
gations. However, by the explicit provision of Sec. 9 of Rule
130, the term "agreement" includes wills. There can therefore,
be no evidence ^ t h e terms of the will other than the contents
of the will itself.

2. W h i l e the parol evidence rule applies to wills, an ex-


press trust concerning an immovable or any interest therein
may not be proved by parol evidence (Art. 1443, Civil Code of
the Philippines).

Illustration
Mr. Seller and Mr. Buyer entered into a written contract
for the sale of a house and lot. The deed of sale mentions a pur-
chase price of P25 million, a down payment of seventy percent
(70%), and the balance payable within one (1) year from the
tender of the downpayment although the actual period agreed
upon orally was two (2) years. The oral agreement between
OBJECT A N D DOCUMENTARY EVIDENCE 215
B Parol Evidence Rule

them also considered the air conditioners inside each room of


the house as part of the purchase price, but this fact was inad-
vertently not mentioned in the written agreement. Under the
parol evidence rule, Mr. Buyer would not be allowed to show
that the purchase price included the air conditioners and that
the payment period for the balance was two (2) years. He would
not be allowed to do so because of the rule that the only evi-
dence of the terms of the agreement between the parties shall
be the contents of the written agreement itself. Any extrinsic
evidence therefore, that would modify, explain or add to the
writing would be deemed "parol" evidence and hence, barred.
Parol evidence is inadmissible to establish stipulations other
than those contained in the writing. Thus, all other evidences
of the contents of the writing are to be ignored.

B a r 1978
X was hired by Philoil Co. as General Manager for
its oil exploration venture in Palawan. The employment
contract expressly provided that X was to receive salary
of PIO.OOO.OO a month plus representation and traveling
expenses of P5,000.00 a month. Philoil Co. failed to pay
and so X filed an action for specific performance of the em-
ployment contract. At the trial, Philoil Co. attempted to
prove, by oral testimony, that the payment of salary to X
was subject to the condition that Philoil Co.'s exploration
in Palawan was already successful.
Is such oral testimony admissible? Reasons.

Suggested answer:
The oral testimony is not admissible. Under the par-
ol evidence rule, no evidence of the terms of a writing are
admissible other than the contents of the written agree-
ment. Such contents cannot be modified, altered or ex-
plained by extrinsic or parol evidence like oral testimony
(Sec. 9, Rule 130, Rules of Court).

Bar 1981
"Q" and "R" entered into a contract covering the
processing and refining of "R's" products. As part of their
written contract, the parties agreed that "Q" could sell the
216 EVIDENCE
(The Bar Lectures Series)

finished goods at his discretion without telling "R" and


apply the proceeds of the sale towards the payment of the
processing and refining costs, and then turn over the bal-
ance of the sales price to "R." This "Q" did, but now "R"
complains that the price "Q" secured was too low and that
in accordance with trade practice, his consent to the sale
should have been first secured.
In the presentation of evidence, should this evidence
of "R" be allowed, and why?

Suggested answer:
The evidence of "R" should not be allowed. Under
the parol evidence rule, no evidence of the terms of a writ-
ing are admissible other than the contents of the written
agreement (Sec. 9, Rule 130, Rules of Court).

Bar 1983
Civil Case No. 8265 entitled "Pedro Calvo v. Hi-Pow-
ered Industries, Inc." is an action for rescission of a deed
of sale over a piece of land that the plaintiff sold to the
defendant. The deed of sale (copy of which was attached
to the complaint) read in full:
"For and in consideration of the sum of P2.5
million, receipt of which is hereby acknowledged,
Pedro Calvo hereby sells, transfers and conveys, as
it is hereby sold, transferred and conveyed unto Hi-
Powered Industries, Inc., that piece of land contain-
ing an area of 24 hectares, more or less, covered by
Transfer Certificate of Title No. 193798 of the Reg-
istry of Deeds of Batangas and more particularly de-
scribed in Annex "A" hereof."
In its answer, the defendant denied all the mate-
rial allegations of the complaint. During the trial, Pedro
Calvo testified on his behalf. While he was testifying, the
following incident took place.

"COUNSEL FOR THE PLAINTIFF:


Q Mr. Calvo, other than the terms contained in
this Deed of Sale, Exhibit "A," what other agreement did
you have with Hi-Powered Industries, Inc.?
OBJECT AND DOCUMENTARY EVIDENCE 217
B Parol Evidence Rule

"COUNSEL FOR THE DEFENDANT:


"Objection, Your Honor."
"COURT: Mr. Counsel, explain why the question is
objectionable?"
If you were the counsel for the defendant, what
would your explanation be?

Suggested answer:
The question is objectionable under the parol evi-
dence rule. When an agreement is reduced into writing,
it is considered to contain all the terms agreed upon by
the parties, and there can be no evidence of such terms
other than the contents of the written agreement. Hence,
a party cannot introduce any evidence as to the terms of
the agreement other than those found in the deed of sale
(Sec. 9, Rule 130, Rules of Court).

B a r 1988
State or explain briefly the Parol Evidence Rule.

Suggested answer:
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 (See
Sec. 9 of Rule 130, Rules of Court).

How to Introduce Parol Evidence


1. The rule prohibiting parol evidence is not absolute.
A party may present evidence to modify, explain or add to the
terms of the written agreement (ACI Philippines v. Coquia,
G.R. No. 174466, July 14, 2008) by showing any of the follow-
ing:
( a ) An intrinsic ambiguity, mistake or imperfection
in the written agreement;
218 EVIDENCE
(The Bar Lectures Series)

(b) The failure of the written agreement to express


the true intent and agreement of the parties thereto; (Sa-
berola v. Suarez, G.R. No. 151227, July 14, 2008).
(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 execu-
tion of the written agreement (Sec. 9, Rule 130, Rules of
Court).
2. Introducing parol evidence means offering extrinsic
or extraneous evidence that would modify, explain or add to
the terms of the written agreement but parol evidence may
only be allowed, if any of the matters mentioned above (from
"a" to "d") is put in issue in the pleadings. Without comply-
ing with this requirement putting in issue in the pleadings
parol evidence cannot be introduced.
E x a m p l e : Seller sues Buyer for P300,000.00, the unpaid
balance of the price of a car bought by and duly delivered to
the latter. Although the deed of sale stipulated a contract price
of P700,000.00, the actual oral agreement was only for Buyer
to pay a price of P400,000.00, an amount already paid. T h e
amount as written in the deed of sale was actually a result of
mere inadvertence. If Buyer wants to prove during the trial
that the true price as agreed by the parties is P400,000.00,
Buyer must allege in his answer to the complaint that there
was a mistake in the writing and it does not reflect the true
agreement of the parties. Such allegations would put such
matters in issue in the pleading, opening the door to the intro-
duction of parol evidence.

3. To reiterate, the parol evidence rule does not per se


bar the introduction of parol evidence as long as the pleader
puts in issue in the pleading any of the matters set forth in
the rule such as the mistake or imperfection of the writing, its
failure to express the true agreement of the parties or the ex-
istence of subsequent agreements. T h e key words are "putting
in issue" in the pleading. Unless duly pleaded, a party will be
barred from offering extrinsic evidence over the objection of
the adverse party.
OBJECT A N D DOCUMENTARY EVIDENCE 219
B Parol Evidence Rule

4. T h e requirement that all the matters in Sec. 9 of


Rule 130 be duly pleaded before parol evidence can be offered
was not a requirement under previous rules. Those required
to be put in issue in the pleadings before the amendments
w e r e introduced w e r e only the following:

( a ) mistake or imperfection in the writing; and


( b ) the failure to express the true agreement of the
parties and the validity of the agreement (Sec. 7, Rule
130 of the 1964 Rules).

5. It is not the province of the courts to amend a con-


tract by construction, or to make a new contract for the par-
ties by interjecting material stipulations, or even to read into
the contract words which it does not contain. If the agreement
was reduced to writing, such agreement is deemed to contain
all its terms and there cannot be, between the parties and
their successors-in-interest, any evidence of the terms of the
written agreement other than the contents of the agreement
itself. As uniformly held, it is only where a party puts in is-
sue in the pleadings the failure of the written agreement to
express the true intent of the parties thereto that said party
may present evidence to modify, explain or add to the terms of
the written agreement (Sps. Sabio v. International Corporate
Bank, Inc., 364 SCRA 385).

6. To justify the introduction of parol evidence a party


must for instance, establish that an alleged agreement failed
to express the true intent of the parties. Until and unless this
has been successfully carried out, there is no right in esse to
speak of (Philippine National Construction Corporation v.
Court of Appeals, G.R. No. 159417, January 25, 2007; Duvaz
Corporation v. Export and Industry Bank, G.R. No. 163011,
June 7, 2007). Although parol evidence is admissible to ex-
plain the meaning of a contract, it cannot serve the purpose
of incorporating into the contract additional contemporane-
ous conditions which are not mentioned at all in the writing
unless there has been fraud or mistake. Evidence of a prior
or contemporaneous verbal agreement is generally not admis-
sible to vary, contradict or defeat the operation of a valid con-
220 EVIDENCE
(The Bar Lectures Series)

tract (SeaOil Petroleum Corporation v. Autocorp Group, G.R.


No. 164326, October 17, 2008).
7. In an action to recover from an insurance policy, the
plaintiff wanted to put forth a witness who would testify as
to the actual terms of the contract of insurance as allegedly
agreed upon despite contrary provisions in said policy. The
testimony was not allowed. The Supreme Court sustained
both the trial court and the Court of Appeals on the basis of
Sec. 9 of Rule 130.
The Court ruled that Section 9, Rule 130 of the Revised
Rules of Court expressly requires that for parol evidence to
be admissible to vary the terms of the written agreement, the
mistake or imperfection thereof or its failure to express the
true agreement of the parties should be put in issue by the
pleadings. As correctly noted by the appellate court, the plain-
tiff failed to raise the issue of an intrinsic ambiguity, mistake
or imperfection in the terms of the insurance policy, or of the
failure of said contract to express the true intent and agree-
ment of the parties thereto in its complaint. There was there-
fore no error on the part of the appellate court when it affirmed
the RTC's order disallowing the witness to testify as to the al-
leged terms of the contract. W h e n 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 par-
ties and their successors-in-interest, no evidence of such other
terms other than the contents of the written agreement (Pili-
pinas Bank v. Court of Appeals, G.R. No. 141060, September
29, 2000).

Prior, Contemporaneous and Subsequent Agreements


1. The traditional rules limit the inadmissibility of par-
ol evidence or extrinsic evidence to prior or contemporaneous
stipulations. Hence, if a written agreement was executed by
the parties on December 22, 2008, agreements before (prior)
that date or even on the same date (contemporaneous) which
modify, alter, or contradict the stipulations written into the
December 22 agreement are not admissible since these con-
OBJECT AND DOCUMENTARY EVIDENCE 221
B Parol Evidence Rule

stitute parol evidence. But assume that the same parties en-
tered into another agreement on January 5, 2009 which modi-
fies some of the terms of the December 22 agreement, would
the January 5 agreement be admissible without violating the
parol evidence rule? Under traditional rules, the agreement
would be admissible because subsequent agreements were not
barred by the parol evidence rule.

Citing American sources, the eminent authority, Moran


writes: "The parties to a written agreement may show by par-
ol evidence that subsequent to the execution of such written
agreement, they have entered into an oral contract tending
to w a i v e , dissolve, or annul the former agreement, or in any
manner to add to, or subtract from or vary or qualify the terms
t h e r e o f (Moran, Comments on the Rules of Court 1980, 112).
2. T h e rule forbidding the admission of evidence ali-
unde or extrinsic evidence did not prohibit proof of an agree-
ment entered into after the written instrument was executed,
notwithstanding that such agreement may have the effect of
adding to, changing or modifying the written agreement of the
parties (Canuto v. Mariano, 37 Phil. 840). This is in fact the
rule in American jurisprudence (Jones On Evidence, 6th Ed.,
Vol. 3, 16.10). Parol evidence on subsequent agreements may
be admitted (29a Am Jur, Evidence, 1133). This means that
the existence of another agreement after the execution of the
original written agreement may be introduced without first
complying with the requirement of putting the subsequent
agreement in issue. In the case of Canuto v. Mariano (37 Phil.
840), for instance, although the deed of sale of a land fixed
the redemption period to one (1) year from the sale, the seller
was allowed to prove that before the expiration of the one year
period, there was an oral agreement to extend the redemption
period for one more month.
3. In contrast to the 1964 Rules of Evidence, the amend-
ments to the rules effective July 1, 1989, added "subsequent
agreements" as among those matters that need to be put in
issue. This signifies that before evidence may be introduced
that the parties entered into another agreement after the ex-
ecution of the written agreement, such subsequent agreement
222 EVIDENCE
(The Bar Lectures Series)

has first to be put in issue in the pleadings. The phraseology


of the rule leads one to conclude that unlike traditional juris-
prudence, such a subsequent agreement could be invoked only
if its existence is put in issue in the pleading.
The addition of a subsequent agreement as an exception
does not square with previous jurisprudence (Dela Rama v.
Ledesma, 143 SCRA 1; Canuto v. Mariano, 37 Phil. 840) on
the matter. The present rule now requires that the admis-
sibility of subsequent agreements be conditioned upon its be-
ing put in issue (Sec. 9[b], Rule 130, Rules of Court). Before
the amendments, there was no such requirement. Subsequent
agreements had always been outside the ambit of the parol ev-
idence rule. Consistent with that principle, such agreements
were not provided for under the previous Rules of Court pro-
mulgated on January 1, 1964. The old rule on parol evidence
(Sec. 7 of Rule 130 of the 1964 Rules on Evidence) provided,
thus:

"Sec. 7. Evidence of written agreements. When


the terms of an agreement have been reduced to writing,
it is to be considered as containing all such terms, and,
therefore, there can be, between the parties and their
successors in interest, no evidence of the terms of the
agreement other than the contents of the writing, except
in the following cases:
(a) Where a mistake or imperfection of the writ-
ing, or its failure to express the true intent and agree-
ment of the parties, or the validity of the agreement is
put in issue by the pleadings;
(b) When there is an intrinsic ambiguity in the
writing.
The term "agreement" includes wills.

Intrinsic Ambiguity in the Writing

1. An instance when evidence aliunde or parol evidence


may be allowed to modify, explain or even add to the written
agreement, is when an intrinsic ambiguity exists in the writ-
OBJECT AND DOCUMENTARY EVIDENCE 223
B Parol Evidence Rule

ten agreement. It must be emphasized however, that the mere


existence of an intrinsic ambiguity will not authorize the ad-
mission of parol evidence. It is very important that the intrin-
sic ambiguity be put in issue in the party's pleading. It is the
raising of the issue of intrinsic ambiguity which will authorize
the introduction of parol evidence.

2. Intrinsic or latent ambiguity is one which is not ap-


parent on the face of the document but which lies in the per-
son or thing that is the subject of the document or deed. In
other words, the ambiguity is intrinsic or latent when the lan-
guage of the writing is clear and intelligible and suggests but
a single meaning but some matter extraneous to the writing
creates the ambiguity (Black's Law Dictionary, 5th Ed., 73 cit-
ing Logue v. Von Almen, 379 III. 208, 40 N.E.2d 73, 82).

In this type of ambiguity, the document is clear on its


face but matters extraneous to the agreement create the am-
biguity.
To illustrate: T h e testator's will bequeaths to Jose Navi-
dad, his grandson, a parcel of grazing land with an area of ten
thousand square meters, located in a town called Magdiwang.
It was discovered after his death that the testator owns two
parcels of land in the same place which are of exactly the same
area and description. There is here an intrinsic ambiguity in
the writing. Similarly, if the testator owns only one parcel of
land and bequeaths that land to his grandson, described in
the will as Jose Navidad, but it was discovered later that he
has two grandsons with the same name, there also exists an
intrinsic or latent ambiguity. Parol evidence may be intro-
duced to show the exact grazing land referred to in the will
or the grandson intended in the will provided that the will's
intrinsic ambiguity is put in issue.

3. The rule allowing parol evidence particularly refers


only to an intrinsic ambiguity in the writing. The obvious im-
plication is that where the ambiguity is patent or extrinsic,
parol evidence will not be admitted even if the same is put in
issue in the pleading.
224 EVIDENCE
(The Bar Lectures Series)

A patent or extrinsic ambiguity is that which appears on


the very face of the instrument, and arises from the defective,
obscure, or insensible language used (Black's Law Dictionary,
5th Ed., 73). Parol evidence is not admissible to explain the
ambiguity otherwise the court would be creating instead of
construing a contract.
For example, if a donor writes in the deed of donation
that he is donating to Jose, one of his cars. Without describing
the specific car, there is a patent ambiguity. The ambiguity
which is apparent on the very face of the document cannot be
clarified or explained by parol evidence.
4. To reiterate, as long as the latent or intrinsic am-
biguity is raised as an issue in the pleadings, the court will
allow evidence aliunde to explain the ambiguity to give effect
to the intention of a party or of the parties. However, even if
a pleader raises as an issue the extrinsic or patent ambiguity
in a contract or will, the court will not allow parol evidence to
explain the ambiguity or supply the deficiency. T h e rule only
allows parol evidence in the case of an intrinsic or latent am-
biguity.

Mistake or Imperfection in the Writing and Failure to Express


the True Agreement of the Parties

1. The admission of evidence aliunde may be justified


when there is a mistake or imperfection in the written agree-
ment. Again, this mistake or imperfection must be put in issue
in the pleading by the party who wants to prove the defect in
the writing.

2. The failure of the writing to express the true agree-


ment of the parties is another ground for admitting parol evi-
dence as long as the issue is raised in the pleadings. In fact,
mistake or imperfection of the writing may be a reason for the
failure of the instrument or writing to embody the intention
of the parties. This does not mean however, that the mistake
or imperfection prevented the meeting of the minds between
the parties. This only means that despite the meeting of the
OBJECT AND DOCUMENTARY EVIDENCE 225
B Parol Evidence Rule

minds, the true agreement of the parties is not reflected in the


instrument.

Aside from mistake, there are some other reasons enu-


merated in substantive law for the failure of the instrument to
express the true intention of the parties like fraud, inequitable
conduct or accident (Art. 1359, Civil Code of the Philippines),
ignorance, lack of skill, negligence or bad faith on the part of
the person drafting the instrument (Art. 1364, ibid.).

3. Although parol evidence is admissible to explain the


meaning of a contract, it cannot serve the purpose of incor-
porating into the contract additional contemporaneous con-
ditions which are not mentioned at all in the writing unless
there has been fraud or mistake (Seaoil Petroleum Corpora-
tion v. Autocorp Group, G.R. No. 164326, October 17, 2008).
4. If the document appears to be a sale, parol evidence
may be resorted to if the same does not express the true in-
tent of the parties because it is actually a loan. The owner of
the property may prove that the contract is really a loan with
mortgage by raising as an issue the fact that the document
is not really a sale (Madrigal v. Court of Appeals, 456 SCRA
247).

5. W h e n there is a meeting of the minds between the


parties but their true intention is not expressed in the instru-
ment by any of the aforementioned causes, one of the parties
may ask for the reformation of the instrument (Art. 1359, Civ-
il Code of the Philippines).
6. In an action for reformation of the instrument under
A r t . 1359 of the Civil Code, the plaintiff may introduce parol
evidence to show the real intention of the parties. An action
for reformation presupposes that a meeting of the minds ex-
ists between the parties, i.e., there is a contract between them
although the instrument that evidences the contract does not
reflect the true agreement of the parties by reason of for in-
stance, fraud or mistake.
If there is no meeting of the minds between the parties
because of mistake, fraud, inequitable conduct or accident, the
226 EVIDENCE
(The Bar Lectures Series)

proper remedy is not reformation of the instrument but an ac-


tion for annulment (Art. 1359, Civil Code of the Philippines)
because the contract is rendered voidable by the vitiation of
the consent of a party (Art. 1390, ibid.).
7. An action for reformation is not an action brought
to reform a contract but to reform the instrument evidenc-
ing the contract. The action for reformation presupposes that
there is nothing wrong with the contract itself because there
is a meeting of minds between the parties (Art. 1359, ibid.).
A contract does not refer to a deed or an instrument but to a
meeting of the minds of the parties (Art. 1305, ibid.). A r t . 1359
of the Civil Code does not in fact refer to a reformation of the
contract but of the 'instrument.'

8. The contract is to be reformed because despite the


meeting of minds of the parties as to the object and cause of
the contract, the instrument which is supposed to embody the
agreement of the parties does not reflect their true agreement
by reason of mistake, fraud, inequitable conduct or accident.
The action is brought so the true intention of the parties may
be expressed in the instrument (Art. 1359, ibid.).

Examples:

( a ) The parties have agreed on the size of the land


subject of the sale. By an act of fraud of the seller who
prepared the deed of sale, a smaller area is indicated in
the deed. There is nothing defective in the contract which
is the meeting of the minds. T h e defect is in the deed of
sale, which is the instrument. If an action for reformation
is brought, the action must be for the purpose of reform-
ing the instrument, not for reforming the contract.

(b) An instrument may be reformed if the instru-


ment does not express the true intention of the parties
because of lack of skill of the person drafting the instru-
ment (Art. 1364, Civil Code of the Philippines).

(c) If the parties agree upon the mortgage or pledge


of property, but the instrument states that the property
OBJECT A N D DOCUMENTARY EVIDENCE 227
B Parol Evidence Rule

is sold absolutely or with a right of repurchase, reforma-


tion of the instrument is proper (Art. 1365, Civil Code of
the Philippines).

( d ) "Even when a document appears on its face to


be a sale, the owner of the property may prove that the
contract is really a loan with mortgage by raising as an
issue the fact that the document does not express the true
intent of the parties. In this case, parol evidence then be-
comes competent and admissible to prove that the instru-
ment was in truth and in fact given merely as a security
for the repayment of a loan. A n d upon proof of the truth
of such allegations, the court will enforce the agreement
orjund^erstandingjn consonance w i t h the true intent of
the parties at the time of the execution of the contract"
(Madrigal v. Court of Appeals, G.R. No. 142944, April 15,
2005 citing Lustan v. Court of Appeals, 334 Phil. 609).

9. Parol evidence is competent and admissible to prove


that the instrument was in truth and in fact given merely as
security for the repayment of a loan and not a sale and upon
adequate proof of the truth of such allegations, the courts will
enforce the agreement or understanding in this regard, in ac-
cord with the true intent of the parties at the time the con-
tract was executed, even if the conveyance was accompanied
by registration in the name of the transferee and of a new
certificate of title in his name (Ayson, Jr. v. Paragas, G.R. No.
146730, July 4, 2008).
10. W h e r e the consent of a party to a contract has been
procured by fraud, inequitable conduct or accident, and an
instrument was executed by the parties in accordance with
the contract, what is defective is the contract itself because of
vitiation of consent. T h e remedy is not to bring an action for
reformation of the instrument but to file an action for annul-
ment of the contract (Art. 1359, Civil Code of the Philippines).
A contract where one party's consent is vitiated is voidable or
annullable (Art. 1330, ibid.; Art. 139012], ibid.).
228 EVIDENCE
(The Bar Lectures Series)

11. Reformation of the instrument cannot be brought to


reform any of the following:
(a) Simple donations inter vivos wherein no condi-
tion is imposed;
(b) Wills; or

(c) When the agreement is void (Art. 1366, ibid.).

Bar 2001
Pedro filed a complaint against Lucio for the recovery
of a sum of money based on a promissory note executed by
Lucio. In his complaint, Pedro alleged 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 Pedro is willing, he may, upon request
of Lucio, give the latter up to 120 days to pay the note.
During the hearing Pedro testified that the truth is that
the agreement between him and Lucio is for the latter to
pay immediately after 90 days. Also, since the original
note was with Lucio and the latter would not surrender to
Pedro the original note which Lucio kept in a place about
one day's trip from where he received the notice to pro-
duce the note and inspite of such notice to produce the
same within six hours from receipt of such notice, Lucio
failed to do so. Pedro presented a copy of the note which
was executed at the same time as the original with identi-
cal contents.
(a) Over the objection of Lucio, will Pedro be al-
lowed to testify as to the true agreement or contents of the
promissory note? Why?
(b) xxx

Suggested answer:
Pedro may be allowed to testify as to the true agree-
ment between Lucio and him. Under the parol evidence
rule, a party may present evidence to show that the writ-
ten agreement failed to express the true intent of the par-
ties provided such matter was put in issue in the plead-
ing. Pedro complied with this requirement by putting the
matter in issue.
OBJECT A N D DOCUMENTARY EVIDENCE 229
B Parol Evidence Rule

^Distinctions Between the Best Evidence Rule and the Parol


Evidence Rule

1. T h e best evidence rule establishes a preference for


the original document over a secondary evidence thereof. The
parol evidence rule is not concerned with the primacy of evi-
dence but presupposes that the original is available.
2. T h e best evidence rule precludes the admission of
secondary evidence if the original document is available. The
parol evidence rule precludes the admission of other evidence
to prove the terms of a document other than the contents of
the document itself for the purpose of varying the terms of the
writing.

3. T h e best evidence rule can be invoked by any litigant


to an action whether or not said litigant is a party to the
document involved. T h e parol evidence rule can be invoked
only by the parties to the document and their successors in
interest.
4. T h e best evidence rule applies to all forms of writing.
T h e parol evidence applies to written agreements (contracts),
and "wills."

Waiver of the Parol Evidence Rule


T h e parol evidence rule can be waived by failure to invoke
the benefits of the rule. This waiver may be made by failure
to object to the introduction of evidence aliunde. Inadmissible
evidence may be rendered admissible by failure to object
(Santiago v. Court of Appeals, 278 SCRA 98; Policarpio v.
Court of Appeals, 194 SCRA 729). Failure to object to the parol
evidence presented by the adverse party operates as a waiver
of the protection of the parol evidence rule (Willex Plastic
Industries Corporation v. Court of Appeals, 256 SCRA 478).

Probative Value
1. Even if parol evidence is admitted, such admission
would not mean that the court would give probative value to
230 EVIDENCE
(The Bar Lectures Series)

the parol evidence. Admissibility is not the equivalent of pro-


bative value or credibility.
2. If the petitioner for instance claims that the parties
had entered into a verbal agreement subsequent to the writ-
ten agreement, the existence of the verbal agreement must
be sufficiently supported by evidence (Raymundo v. Lunaria,
G.R. No. 171036, October 17, 2008).

C Authentication a n d P r o o f of D o c u m e n t s
( R u l e 132)

Concept of Authentication
1. The concept of "authentication" occupies a vital place
in the presentation of evidence. N o t only documents but also
objects introduced in evidence need to be authenticated. It is
the preliminary step in showing the admissibility of an evi-
dence.
For example, a weapon, let us say, a .38 revolver, is found
in the crime scene. To be admissible in evidence, it must be
authenticated. This means that it must be shown to the satis-
faction of the court that the weapon in court is the very same
weapon found in the crime scene. To convince the court, the
proponent of the evidence must call someone to identify the
weapon and affirm: "This is the weapon I found in the crime
scene." This someone could be the police investigator or some-
one else who handled the evidence. W h e n he affirms it is the
same weapon, then the evidence is authenticated.

2. Litigation always involves the authentication of ei-


ther object or documentary evidence. Unless a document is con-
sidered self-authenticating, it will not be admitted in evidence
without a prior authentication. T h e requirement for authenti-
cation of evidence discloses the existence in our legal system
of a legal presumption that is not however, directly written in
statutes or procedural rules but is necessarily implied there-
in. This presumption is: That objects and documents presented
in evidence, are as a rule, counterfeit. In short, an evidence is
OBJECT AND DOCUMENTARY EVIDENCE 231
C Authentication and Proof of Documents

not presumed authentic. It is therefore, incumbent upon the


proponent of the evidence to prove its authenticity.
3. Authentication of a private document does not re-
quire a seal. T h e r e shall be no difference between sealed and
unsealed private documents insofar as their admissibility as
evidence is concerned (Sec. 32, Rule 132, Rules of Court).

Authentication under the Rules on Electronic Evidence


1. T h e person seeking to introduce an electronic docu-
ment in any legal proceeding has the burden of proving its
authenticity (Sec. 1, Rule 5, Rules on Electronic Evidence).
2. As previously mentioned, the authentication of elec-
tronic document requires any of the following means:
( a ) by evidence that it had been digitally signed by
the person purported to have signed the same;
( b ) by evidence that other appropriate security pro-
cedures or devices as may be authorized by the Supreme
Court or by law for authentication of electronic docu-
ments were applied to the document; or
(c) by other evidence showing its integrity and re-
liability to the satisfaction of the judge (Sec. 2, Rule 5,
Rules on Electronic Evidence).

Concept of a Document
The Philippine Supreme Court has defined a document as
a "deed, instrument or other duly authorized paper by which
something is proved, evidenced or set forth" (Bermejo v. Bar-
rios, 31 SCRA 764; People v. Camacho, 44 Phil. 484; U.S. v.
Orera, 11 Phil. 596). However, for documents to be considered
as documentary evidence, it must be "offered as proof of their
contents" (Sec. 2, Rule 130, Rules of Court). If the document
is not offered for that purpose, the document is a mere object
evidence as when the purpose is merely to prove its existence.
Hence, not every document is to be received as a documentary
evidence.
232 EVIDENCE
(The Bar Lectures Series)

Public and Private Documents


1. Documents may either be public or private. This
classification is for the purpose of their presentation in evi-
dence.
2. Section 19 of Rule 132 enumerates the public docu-
ments, thus:

r - "Sec. 19. Classes of documents. For the pur-


pose of their presentation in evidence, documents are
either public or private.
Public documents are:
(a) The written official acts, or records of the of-
ficial acts of the sovereign authority, official bodies and
tribunals, and public officers, whether of the Philippines,
or of a foreign country;
(b) Documents acknowledged before a notary
public except last wills and testaments; and
(c) Public records kept in the Philippines, of pri-
vate documents required by law to be entered therein.
All other writings are private."

3. The written official acts and records of the official


acts of the sovereign authority, do not refer only to those of
the Philippines. T h e y also refer to those of a foreign country.
Documents acknowledged before a notary public are public
documents except last wills and testaments which are private
documents even if notarized (Sec. 19[b], Rule 132, Rules of
Court). Assumed to be included in this class of public docu-
ment are those acknowledged before an officer, other than a
notary public authorized to administer oaths. In the case of
a public record of a private document required by l a w to be
entered in a public record, the public document does not refer
to the private document itself but the public record of that
private document.

4. The rule does not g i v e a specific definition of a pri-


vate document except by providing that "... All other writings
are private" (Sec. 19, Rule 132, Rules of Court).
OBJECT AND DOCUMENTARY EVIDENCE 233
C Authentication and Proof of Documents

Church Registries

It is well-settled that Church registries of births, mar-


riages and deaths made subsequent to the promulgation of
General Orders N o . 68, promulgated on December 18, 1889,
and the passage of A c t N o . 190, enacted on August 7, 1901,
are no longer public writings, nor are they kept by duly au-
thorized public officials. T h e y are private writings and their
authenticity must therefore be proved, as are all other private
writings in accordance with the Rules of Evidence (Llemos v.
Llemos, G.R. No. 150162, January 26, 2007).

' Importance of Knowing Whether a Document is Public or


Private
' 1. Before the admission of a private document in evi-
dence that is offered as authentic, its due execution and au-
thenticity must be proved (Sec. 20, Rule 132, Rules of Court).
This requirement does not apply to a public document which
is admissible without further proof of its due execution and
genuineness.

2. For example, under Sec. 30 of Rule 132, every docu-


ment duly notarized 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.
In other words, notarized documents, being public docu-
ments, do not require authentication, unlike private docu-
ments. They also enjoy the prima facie presumption of au-
thenticity and due execution (Domingo v. Robles, 453 SCRA
812).
3. It is well-settled that a document acknowledged be-
fore a notary public is a public document that enjoys the pre-
sumption of regularity. It is a prima facie evidence of the truth
of the facts stated therein and a conclusive presumption of its
existence and due execution. To overcome this presumption,
there must be presented evidence that is clear and convincing.
Absent such evidence, the presumption must be upheld. In ad-
234 EVIDENCE
(The Bar Lectures Series)

dition, one who denies the due execution of a deed where one's
signature appears has the burden of proving that contrary to
the recital in the jurat, one never appeared before the notary
public and acknowledged the deed to be a voluntary act. Deni-
als without clear and convincing evidence to support the claim
of fraud and falsity are not sufficient to overthrow the above-
mentioned presumption (Spouses Santos v. Spouses Lumbao,
G.R. No. 169129, March 28, 2007).
"Notarized documents may be presented in evidence
without further proof, the certificate of acknowledgment be-
ing prima facie evidence of the execution of the instrument
or document involved (Sec. 30, Rule 132, Rules of Court). To
overcome the presumption, there must be sufficient, clear and
convincing evidence as to exclude all reasonable controversy
as to the falsity of the certificate. In the absence of such proof,
the document must be upheld. Notarization converts a pri-
vate document into a public document, making it admissible
in court without further proof of its authenticity" (St. Mary's
Farm, Inc. v. Prime Real Properties, Inc., G.R. No. 158144,
July 31, 2008, citing Mallari v. Alsol, 484 SCRA 148).
Sec. 30 of Rule 130 affirms the above principles, thus:

"Sec. 30. Proof of notarial documents. Every in-


strument duly acknowledged or proved and certified as
provided by law, may be presented in evidence without
further proof, the certificate of acknowledgement being
prima facie evidence of the execution of the instrument
or document involved."

4. A notary public is empowered to perform a variety of


notarial acts, most common of which are the acknowledgment
and affirmation of a document or instrument. In the perfor-
mance of such notarial acts, the notary public must be mind-
ful of the significance of the notarial seal as affixed on a docu-
ment. The notarial seal converts the document from private
to public, after which it may be presented as evidence without
need for proof of its genuineness and due execution. Thus, no-
tarization should not be treated as an empty, meaningless, or
OBJECT AND DOCUMENTARY EVIDENCE 235
C Authentication and Proof of Documents

routinary act. It is invested with substantive public interest,


such that only those who are qualified or authorized may act
as notaries public. It is through the act of notarization that
a private document is converted into a public one, making it
admissible in evidence without need of preliminary proof of
authenticity and due execution. Indeed, a notarial document
is by law entitled to full faith and credit upon its face, and
for this reason, notaries public must observe utmost care in
complying with the elementary formalities in the performance
of their duties. Otherwise, the confidence of the public in the
integrity of this form of conveyance would be undermined
(Agagon v. Bustamante, A.C. No. 5510, December 20, 2007).
5. Sec. 23 of Rule 130 also confirms the significance of
a public document.
W h e n a public officer in the performance of his duty
makes an entry in the public record, the document of such
entry is deemed prima facie evidence of the facts stated in the
entry. In the case of other public documents, the facts stated
therein constitute evidence of the facts that gave rise to the
execution of such documents and of the date of the execution
of the same. Sec. 23 as quoted, declares:

"Sec. 23. Public documents as evidence. Docu-


ments consisting of entries in public records made in
the performance of a duty by a public officer are prima
facie evidence of the facts therein stated. All other pub-
lic documents are evidence, even against third persons
of the facts which gave rise to their execution and of the
date of the latter."

Evidence of Official Records of Official Acts; Attestation


1. While a public document does not require the au-
thentication imposed upon a private document, there is a ne-
cessity for showing to the court that indeed a record of the offi-
cial acts of official bodies, tribunals or of public officers exists.
H o w is this effected? Sec. 24 of Rule 132 supplies the answer.
The record of a public document may evidenced by:
( a ) An official publication thereof; or
236 EVIDENCE
(The Bar Lectures Series)

(b) By a copy of the document attested by the officer


having legal custody of the record or by the attestation of
his deputy; if the record is not kept in the Philippines,
the attestation must be accompanied by a certificate that
such officer has the custody; if the office in which the re-
cord is kept is in a foreign country, the certificate maybe
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.

2. The attestation referred to in the preceding number


must "state, in substance, that the copy is a correct copy of
the original, or a specific part thereof, as the case may be.
The attestation must be under the official seal of the attesting
officer, if there be any, or if he be the clerk of a court having a
seal, under the seal of such court." (Sec. 25, Rule 132, Rules of
Court)

3. The certificate and attestation are required because


of the general rule on the "irremovability of public records"
embodied in Sec. 26 of Rule 132, thus:

"Sec. 26. Irremovability of public record. Any


public record, an official copy of which is admissible in
evidence, must not be removed from the office in which
it is kept, except upon order of a court where the inspec-
tion of the record is essential to the just determination
of a pending case."

Special Power of Attorney Executed Abroad


In one case, a special power of attorney was executed and
acknowledged before a notary public of the state of Washing-
ton, U S A , authorizing the son of the principal to file in the Phil-
ippines a suit against certain persons. T h e power of attorney
did not contain a certificate of authentication by a secretary
of the Philippine 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.
OBJECT AND DOCUMENTARY EVIDENCE 237
C Authentication and Proof of Documents

T h e Court held that a notary public in a foreign country


is not of those who can issue the certificate mentioned in Sec-
tion 24 of Rule 132 of the Rules of Court. T h e Court ruled that
non-compliance with Section 24 of Rule 130, will render the
special power of attorney inadmissible in evidence. N o t be-
ing duly established in evidence, the special power of attorney
cannot be used by the son to file a suit in representation of his
father. T h e case filed then is considered as one not filed by a
real party in interest. N o t being a real party in interest and
without the authority to pursue the case, the son could not
have validly commenced the case. T h e argument that the lack
of consular authentication is a mere technicality that can be
brushed aside in order to uphold substantial justice was also
considered as untenable. T h e failure to have the special power
of attorney authenticated according to the Court, is not a mere
technicality but a question of jurisdiction. Citing the previous
case of Lopez v. Court of Appeals (156 SCRA 838), it was held
that jurisdiction over the real party in interest was never ac-
quired by the courts. As a result, all proceedings in the lower
courts are declared null and void and thus, set aside (Heirs of
Medina v. Natividad, G.R. No. 177505, November 27, 2008).

Evidence of Public Record of a Private Document


1. A public record of a private document may be proved
by any of the following:
( a ) By the original record; or
( b ) By a copy thereof, attested by the legal custo-
dian of the record, with an appropriate certificate that
such officer has the custody (Sec. 27, Rule 132, Rules of
Court).

How to Prove the Lack of Record


A litigation does not always involve evidence of the exis-
tence of a record. Sometimes the issue centers on the absence
of an official record. How then may the absence of a record be
proven?
238 EVIDENCE
(The Bar Lectures Series)

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:
( a ) there has been a diligent search of the record;
(b) that despite the diligent search, no record of en-
try of a specified tenor is found to exist in the records of
his office.
The written statement must be accompanied by a certifi-
cate that such officer has the custody of official records (Sec.
28, Rule 132, Rules of Court).

Last Wills and Testaments


Last wills and testaments must undergo an authentica-
tion process even if they are notarized in accordance with A r t .
806 of the Civil Code of the Philippines. The Rules of Court
(Rule 132, Sec. 19[b]), while declaring that the term "public
document" includes one acknowledged before a notary pub-
lic, nevertheless expressly excludes last wills and testaments.
Besides, substantive law provides that no will shall pass ei-
ther real or personal property unless proved and allowed in
the proper court (Art. 838, Civil Code of the Philippines). T h e
same substantive rule is echoed in Sec. 1 of Rule 75 which
provides:

"Sec. 1. Allowance of will necessary. Conclusive


as to execution. No will shall pass either real or per-
sonal estate unless it is proved and allowed in the prop-
er court. Subject to the right of appeal, such allowance
of the will shall be conclusive as to its due execution."
(Emphasis supplied)

Proof of a Private Document


1. Sec. 20 of Rule 132 provides:

"Sec. 20. Proof of private document. Before


any private document offered as authentic is received
in evidence, its due execution and authenticity must be
proved either:
OBJECT AND DOCUMENTARY EVIDENCE 239
C Authentication and Proof of Documents

(a) By anyone who saw the document executed


or written; or
(b) By evidence of the genuineness of the signa-
ture or handwriting of the maker.
Any other private document need only be identi-
fied as that which it is claimed to be.

2. W h e r e the private document is offered in evidence


as authentic, there is a need to prove its due execution and
authenticity. Section 20 recognizes two ways of proving the
due execution and genuineness of a private instrument. One
w a y is to rely on the personal knowledge of a witness. Here,
the witness attests to its genuineness because the document
was executed or signed in his presence, i.e., he personally wit-
nessed the execution or writing of the document. The second
mode does not require that the document be executed in the
presence of the witness. H e r e the witness testifies or shows
evidence that the signature or handwriting of the maker is
genuine (Sec. 20, Rule 132, Rules of Court; Ong v. People, 342
SCRA 372).

3. T h e manner of authenticating a document required


by Sec. 20 of Rule 132, applies only when a private document
is offered as authentic as when it is offered to prove that the
document was truly executed by the person purported to have
made the same. W h e r e the document is offered in evidence not
as authentic, its genuineness and due execution need not be
proven as when the only purpose is for the offeror to show that
a certain piece of document exists. When a witness says: "I
found this document in the drawer of my table," the document
only needs identification and not authentication. But when
the witness wants to show that the deed was indeed executed
by his brother, the process of authentication required by Sec.
20 must be complied with.

How to Prove Genuineness of a Handwriting


1. Sec. 22 of Rule 132 enumerates how the genuineness
of a handwriting may be proved:
240 EVIDENCE
(The Bar Lectures Series)

"Sec. 22. How genuineness of handwriting proved.


The handwriting of a person may be proved by any
witness who believes it to be the handwriting of such
person because he has seen the person write, or has
seen writing purporting to be his upon which the wit-
ness has acted or been charged, and thus has acquired
knowledge of the handwriting of such person. Evidence
respecting the handwriting may also be given by a com-
parison, made by the witness or the court, with writ-
ings admitted or treated as genuine by the party against
whom the evidence is offered, or proved to be genuine
to the satisfaction of the judge."

2. Sec. 22 of Rule 132 does not require expert testimony


to prove the handwriting of a person.
It may be proven by any witness who believes it to be the
handwriting of a person because: (1) he has seen the person
write; or (2) he has seen writing purporting to be his upon
which the witness has acted or been charged, and has thus
acquired knowledge of the handwriting of such person; (3) by
a comparison made by the witness or the court, with writings
admitted or treated as genuine by the party against whom the
document is offered, or proved to be genuine to the satisfac-
tion of the judge (Heirs ofAmado Celestial v. Heirs ofEditha
G. Celestial, 408 SCRA 291).

Ancient Documents
There is an exception to the rule requiring proof of the
genuineness and due execution of a private document. T h e
exception is in the case of a private "ancient document." A
private document is considered ancient when it is more than
thirty (30) years old, is produced from a custody in which it
would naturally be found if genuine, and is unblemished by
any alterations or circumstances of suspicion (Sec. 21, Rule
132, Rules of Court).

When a document is ancient pursuant to the descriptions


in Section 21 of Rule 132, evidence of its authenticity need not
be given, i.e., there is no need to prove its genuineness and
due execution. This means that there is no necessity for ob-
OBJECT AND DOCUMENTARY EVIDENCE 241
C Authentication and Proof of Documents

servance of the authentication process under Section 20 such


as the testimony of a person who saw the document executed
or by one who w i l l show evidence of the genuineness of the
handwriting of the maker of the document. It must however,
be established first that the document is ancient and that it
has the characteristics of a document so provided under Sec-
tion 21. W h e n all these are done, no other evidence of its au-
thenticity need be given.

Sec. 21 of Rule 132 is clear on this point: To quote:

"Sec. 21. When evidence of authenticity of docu-


ment not necessary. Where a private document is
more than thirty years old, is produced from a custody
in which it would naturally be found if genuine, and is
unblemished by any alterations or circumstances of
suspicion, no other evidence of its authenticity need be
given."

B a r 1990
In the trial of a case on July 5,1990, plaintiff offered
in evidence a receipt dated July 7, 1959 issued by defen-
dant company which was found in a cabinet for receipts
of payment. It is without any blemish or alteration. As
no witness testified on the execution and authenticity of
the document, defendant moved for the exclusion of this
receipt notwithstanding that it is a private writing.
Should the said motion be granted?

Suggested answer:
The motion should not be granted. There is no need
for a witness to testify as to its execution and authentic-
ity. The testimony will only be for the purpose of identify-
ing the document and not to prove its authenticity. There
is an exception to the rule requiring proof of the genuine-
ness and due execution of a private document. The excep-
tion is in the case of a private "ancient document" as in
the instant case. When this is done, there is no need to
prove its authenticity.
242 EVIDENCE
(The Bar Lectures Series)

A private document is considered ancient when it is


more than thirty (30) years old, is produced from a cus-
tody in which it would naturally be found if genuine, and
is unblemished by any alterations or circumstances of
suspicion (Sec. 21, Rule 132, Rules of Court). Note: While
a witness is not needed to prove the due execution and
authenticity of the document, a witness is needed to iden-
tify the same.
Note: Even if the document is not ancient, it is sub-
mitted that a private document the authenticity of which
has been admitted by the parties requires no further au-
thentication.

How to Explain Alterations in a Document


The party producing the document as genuine but which
bears alterations after its execution has the duty to account
for any alteration found in a document purported to be genu-
ine. For such purpose, he may show any of the following:

( a ) that the alteration was made by another with-


out his concurrence; or
(b) that the alteration was made with the consent
of the parties affected by it;
(c) that the alteration was otherwise properly or
innocently made; or that the alteration did not in anyway
change the meaning or language of the instrument.
Failure to do any of the above will make the document
inadmissible in evidence (Sec. 31, Rule 132, Rules of Court).

How to Prove Documents in an Unofficial Language


Because the rule provides that a document written in an
unofficial language shall not be admitted as evidence, it must
be accompanied by a translation into English or Filipino. To
avoid interruption of court proceedings, attorneys are required
to have such translation prepared before trial (Sec. 33, Rule
132, Rules of Court).
OBJECT AND DOCUMENTARY EVIDENCE 243
C Authentication and Proof of Documents

Impeachment of Judicial Record


1. A judicial record refers to the record of judicial pro-
ceedings (Black's Law Dictionary, 5th Ed., 762) It does not
only include official entries or files or the official acts of a judi-
cial officer (Wharton's Criminal Evidence, 11th Ed., 805), but
also the judgment of the court (Black's Law Dictionary, 762).

2. Sec. 29 of Rule 132 authorizes the impeachment of


any judicial record if there be evidence of the existence of any
of the following grounds: ( a ) lack of jurisdiction in the court or
judicial officer; ( b ) collusion between the parties, or (c) fraud
in the party offering the record, in respect to the proceedings.

Registration of Contracts
1. W h e r e a contract is required by law to be registered,
the same must be, as a rule, in a public instrument. For ex-
ample, for purposes of registration and convenience, acts and
contracts which have for their object the creation, transmis-
sion, modification or extinguishment of real rights over im-
movable property must appear in a public instrument (Art.
1358, Civil Code of the Philippines).
2. Public documents are evidence, even against a third
person, of the fact which gave rise to their execution and of
the date of its execution. In the case of public documents con-
sisting of public records, they are also prima facie evidence of
the facts stated in the document (Sec. 23, Rule 132, Rules of
Court).
3. Certain contracts must be embodied in a public in-
strument in order to be valid. Examples: ( a ) A donation of an
immovable (Art. 749, Civil Code of the Philippines); (b) A dona-
tion of a movable with a value exceeding five thousand pesos
(Art. 748, ibid.); (c) A partnership where immovable property
or real rights are contributed (Art. 1771, ibid.).

- oOo -
Chapter IV

TESTIMONIAL EVIDENCE

A Qualifications of Witnesses

Nature of Testimonial or Oral Evidence


1. Testimonial or oral evidence is evidence elicited from
the mouth of a witness as distinguished from real and docu-
mentary evidence (Black's Law Dictionary, 5th Ed., 1323). It
is sometimes called viva voce evidence which literally means
"living voice" or by word of mouth. In this kind of evidence, a
human being is called to the stand, is asked questions, and
answers the questions asked of him. The person who gives the
testimony is called a "witness."

2. Recall that competent evidence means evidence that


is not excluded by the law or by the rules. It therefore means
the eligibility of an evidence to be admitted by the court. W h e n
applied to a witness, competence means that the witness is
qualified to take the stand and testify. It means that he is fit
or that he is eligible to testify on a particular matter in a judi-
cial proceeding.

If a witness cannot perceive or even if he can perceive he


cannot remember what he has perceived, he is incompetent to
testify. If he has no personal knowledge of an event the truth
of which he wants to prove, he is also incompetent to testify.
Competence of a witness therefore, refers to his personal qual-
ifications to testify. Competence also includes the absence of
any factor that would disqualify him from being a witness.

3. Experience and plain observation will tell us that


the presentation and introduction of every kind of evidence,

244
TESTIMONIAL EVIDENCE 245
A Qualifications of Witnesses

whether it be object, demonstrative or documentary evidence,


needs the intervention of a witness. T h e admission of any
evidence requires its identification by a witness. It is a legal
truth that identification precedes authentication. Without a
witness, no evidence can ever be authenticated. Even the so-
called "self-authenticating documents" need a witness to iden-
tify the document. T h e reason is simple. Being inanimate, a
document or an object cannot speak for itself.

Presumption in Favor of Competence of a Witness


As a general rule, a person who takes the stand as a wit-
ness, is presumed to be qualified to testify. A party who de-
sires to question the competence of a witness must do so by
making an objection as soon as the facts tending to show in-
competency are apparent (Jones on Evidence, Vol. 3, 796).

Qualifications of a Witness
1. As to the qualifications of a witness, the relevant
provision provides:

"Section 20. Witnesses; their qualifications. Ex-


cept as provided in the next succeeding section, all
persons who can perceive, and in perceiving, can make
known their perception to others, may be witnesses.
Religious or political belief, interest in the outcome
of the case, or conviction of a crime unless otherwise
provided by law, shall not be a ground for disqualifica-
tion."

2. T h e above provision supplies the basic qualifications


of a witness, namely:
( a ) he can perceive; and in perceiving
(b) he can make known his perception to others.
To these, we may add the following:
( a ) he must take either an oath or an affirmation
(Section 1, Rule 132, Rules of Court); and
246 EVIDENCE
(The Bar Lectures Series)

(b) he must not possess the disqualifications im-


posed by law or the rules.

Oath or Affirmation
1. While the taking of an oath or of an affirmation is
either rarely mentioned and is merely glossed over by com-
mentators in discussing the qualifications of a witness to take
the stand, the rule clearly requires that the examination of a
witness in a trial or hearing shall be done xxx under oath or
affirmation (Section 1, Rule 132, Rules of Court). T h e willing-
ness to take an oath or affirmation is an essential qualification
of a witness. No court would and should allow the testimony of
someone who desires to testify but who refuses to swear or to
make an affirmation.

2. A person is not qualified to be a witness if he is in-


capable of understanding the duty to tell the truth. An oath
or affirmation is necessary for the witness to recognize the
duty to tell the truth. T h e oath of a witness signifies that he is
swearing to the Creator "to tell the truth and nothing but the
truth" and that if he does not, he will later on answer for all
the lies he is guilty of. Of course, in the early stages of legal
history, this was concededly the underlying reason for requir-
ing an oath before a witness testifies. In modern times, this
reason may have been obscured by a universal shift in moral
values but the oath is nevertheless, required as a rule, even if
to many, the oath appears merely to be a pious incantation or
a meaningless ritual which must simply be done to be allowed
to testify.

3. The issue which a judge must resolve before a wit-


ness is allowed to take the stand is whether the witness un-
derstands the nature of an oath, realizes the moral duty to tell
the truth, and understands the prospects of being punished
for a falsehood. This understanding is not necessarily inferred
from the age of the witness. One American case (People v.
Berry [1968] 260 CA2d 649, 67 CR 312), ruled that it is not re-
quired that the understanding of the importance of an oath be
TESTIMONIAL EVIDENCE 247
A Qualifications of Witnesses

a detailed one. It is enough that the witness understands and


believes that some earthly evil will occur to him for lying.
4. A n y objection to the competency of a witness raises
an issue of fact: whether or not the witness is capable of un-
derstanding the duty to tell the truth. T h e issue is addressed
to judicial determination and in the absence of a clear abuse of
discretion, the trial court's findings will not be reversed (Peo-
ple v. Blagg [91970] 10 CA3d 1035, 89 CR 446).
5. N o t all may want to take an oath for reasons of re-
ligion or the lack of it. Thus, the rule in this jurisdiction af-
fords the courts the flexibility to deal with those who refuse to
being sworn by requiring the witness to make an affirmation
instead. Consider this hypothetical:

Suppose that the prosecution calls a witness and


offers his testimony to prove that it was indeed the
accused who ran over the victim with a car. Here goes the
brief exchange between the bailiff or appropriate court
personnel and the supposed witness:
"Sir, please raise your right hand."
The supposed witness retorts: "For what?"
The bailiff snaps: "You are going to be sworn before
you testify, Sir."
"No! I will not!"
"Do you instead want to make an affirmation?"
"I won't do that either!"

The most likely scenario is of the court dismissing the


proposed witness. Most likely that person will not be allowed
to testify. This is because he failed to meet the oath or affirma-
tion requirement.

Ability to Perceive
A witness must be able to perceive an event. Thus, it
would be absurd to ask a blind man what he saw, or a deaf
person what he heard. Corollary to this capacity to perceive is
248 EVIDENCE
(The Bar Lectures Series)

the requirement that the witness must have personal knowl-


edge of the facts surrounding the subject matter of his testi-
mony. Section 36 of Rule 130 explicitly requires that a witness
can testify only to those facts which he knows of his personal
knowledge, i.e., those which are derived from his own percep-
tion. When the witness takes an oath or an affirmation to tell
the truth, he cannot live up to that oath or affirmation with-
out his ability to show that his testimony is based on his per-
sonal knowledge. Without this personal knowledge, the wit-
ness lacks the competence to testify. To illustrate:

A witness is called to testify in a defamation suit for al-


leged defamatory acts committed against the complainant on
March 27, 2008 in the corner of XYZ and ABC Sts. in Manila.
He willingly took the oath.

Q: Sir, where were you on the 27th of March 2007 at


around 7:30 in the evening?
A I was in Israel, Sir for a pilgrimage.

Obviously, the witness will be dismissed from the stand.


The court has no use for him. He is incompetent for the pur-
pose for which he was called. W h i l e taking the oath enabled
him to meet the first requirement for competency, he miser-
ably failed the next test. He did not perceive anything about
the incident and could offer no facts about the incident based
on his personal knowledge.

Ability to Make Known the Perception to Others


1. The ability to make known the perception of the wit-
ness to the court involves two factors: ( a ) the ability to remem-
ber what has been perceived; and ( b ) the ability to communi-
cate the remembered perception. Consider a witness who has
taken the oath and who has personal knowledge of the event
on which he is going to testify. Imagine the exchange that fol-
lows in the courtroom:

Q: What incident if any occurred... etc... etc....


A: Sorry, sir. I... can't recall... I don't remember.
TESTIMONIAL EVIDENCE 249
A Qualifications of Witnesses

It is of common reason to realize that a witness is pre-


sented to testify on a matter he has perceived. If he cannot
remember, he cannot be a competent witness.

2. Deaf-mutes are not necessarily incompetent as wit-


nesses. T h e y are competent where they: ( a ) can understand
and appreciate the sanctity of an oath; ( 2 ) can comprehend
facts they are going to testify to; and ( 3 ) can communicate
their ideas through a qualified interpreter (People v. Tuangco,
345 SCRA 429).

Competency and Credibility


1. Competence is a matter of law or in this jurisdiction,
also a matter of rule. Credibility of the witness has nothing to
do with the law or the rules. It refers to the weight and the
trustworthiness or reliability of the testimony. In deciding the
competence of a witness, the court will not inquire into the
trustworthiness of the witness.

2. Accordingly, a prevaricating witness or one who has


given contradicting testimony is still a competent witness
(U.S. v. Cook, 949 F2d 289 [10th Cir. 1991]). Although he may
be competent as a witness, his testimony may not be given
much weight by the court or no weight at all if the court deems
him not worthy of belief. T h e competence of the witness must
hence, be sharply distinguished from his credibility.

Bar 2004
Distinguish clearly but briefly between:
1. xxx
2. Competency of the witness and credibility of
the witness.
250 EVIDENCE
(The Bar Lectures Series)

Suggested answer:
Competency of a witness has reference to the basic
qualifications of a witness as his capacity to perceive and
his capacity to communicate his perception to others. It
also includes the absence of any of the disqualifications
imposed upon a witness (Sees. 20-24, Rule 130, Rules of
Court). Credibility of the witness refers to the believabil-
ity of the witness and has nothing to do with the law or
the rules. It refers to the weight and the trustworthiness
or reliability of the testimony.
In deciding the competence of a witness, the court
will not inquire into the trustworthiness of the witness.
Accordingly, a prevaricating witness or one who has given
contradicting testimony is still a competent witness (U.S.
v. Cook, 949 F2d 289 [10th Cir. 1991]).

3. Bias is not even a basis for declaring a witness in-


competent to testify (U.S. v. Cervantes-Pacheco, 826 F2d 310
[5th Cir. 1987]).
4. Under the Rules of Court, persons covered by the
Survivorship Disqualification Rule (Dead Man's Statute) can-
not testify as to any matter of fact occurring before the death
or insanity of the adverse party (Section 23, Rule 130). This
rule is one which is directed to the issue of competency of a
witness, not to his credibility.

5. Drug abuse will not render a person incompetent to


testify (U.S. v. Behrens, 689 F.2d 154 [10th Cir. 1982]). Drug
abuse becomes relevant only if the witness was under the in-
fluence of drugs at the time he is testifying or at the time the
events in question were observed (U.S. v. Novo Sampol, 636
F.2d 621 [B.C. Cir. 1980]). While bias and drug abuse may
not be grounds for barring a witness from testifying, they may
serve as grounds for attacking the credibility of the witness.

6. Questions concerning the credibility of a witness are


best addressed to the sound discretion of the trial court as it is
in the best position to observe his demeanor and bodily move-
ments (Llanto v. Alzona, 450 SCRA 288). The Supreme Court
TESTIMONIAL EVIDENCE 2S1
A Qualifications of Witnesses

generally defers to the trial court's assessment because it has


the singular opportunity to observe the demeanor of witnesses
and their manner of testifying (People v. Bustamante, G.R
No. 177769, September 12, 2007).

7. T h e findings of trial courts on the credibility of wit-


nesses deserve a high degree of respect and w i l l not be dis-
turbed on appeal absent a clear showing that the trial court
had overlooked, misunderstood or misapplied some facts or
circumstances of weight and substance which could reverse a
judgment of conviction. Also, the assignment of value to the
testimony of a witness is essentially the domain of the trial
court and that is w h y the Supreme Court is not the proper
forum from which to secure a re-evaluation of factual issues,
except only where the factual findings of the trial court do not
find support in the evidence on record or where the judgment
appealed from was based on a misapprehension of facts (Las-
cano v. People, G.R. No. 166241, September 7, 2007).

T i m e and again, the Court has held that when it comes


to the issue of credibility of the victim or the prosecution wit-
nesses, the findings of the trial courts carry great weight and
respect and, generally, the appellate courts will not overturn
the said findings unless the trial court overlooked, misunder-
stood or misapplied some facts or circumstances of weight
and substance which w i l l alter the assailed decision or affect
the result of the case. This is so because trial courts are in
the best position to ascertain and measure the sincerity and
spontaneity of witnesses through their actual observation of
the witnesses' manner of testifying, their demeanor and be-
havior in court. Trial judges enjoy the advantage of observing
the witness' deportment and manner of testifying, the "fur-
tive glance, blush of conscious shame, hesitation, flippant or
sneering tone, calmness, sigh, or the scant or full realization
of an oath" all of which are useful aids for an accurate de-
termination of a witness' honesty and sincerity. Trial judges,
therefore, can better determine if such witnesses are telling
the truth, being in the ideal position to weigh conflicting tes-
timonies. Again, unless certain facts of substance and value
were overlooked which, if considered, might affect the result
252 EVIDENCE
(The Bar Lectures Series)

of the case, its assessment must be respected, for it had the


opportunity to observe the conduct and demeanor of the wit-
nesses while testifying and detect if they were lying. The rule
finds an even more stringent application where the said find-
ings are sustained by the Court of Appeals (People v. Cerilla,
539 SCRA 251; People v. Aguilar, G.R. No. 177749, December
17,2007).

Other Factors that Do Not Affect the Competency of a Wit-


ness
1. Under Section 20 of Rule 130, except as provided by
the law and the rules, the following factors do not, as a gen-
eral rule, constitute a disqualification of a witness:
( a ) religious belief;
(b) political belief;
(c) interest in the outcome of the case; or
(d) conviction of a crime, unless otherwise provided
by law (Example: those who have been convicted of falsi-
fication of a document, perjury or false testimony are dis-
qualified from being witnesses to a w i l l ) . (Art. 821, Civil
Code of the Philippines). As a consequence, these persons
may not also testify as witnesses in the probate of a will
where the subject of the testimony is the very fact of ex-
ecution of the will in their presence.

2. The relationship of a witness with a party does not


ipso facto render him a biased witness in criminal cases where
the quantum of evidence is proof beyond reasonable doubt.
There is no reason why the same principle should not apply to
a civil case where the quantum of evidence is only preponder-
ance of evidence (Northwest Airlines, Inc. v. Chiong, G.R. No.
155550, January 31, 2008).

Bar 1994
Al was accused of raping Lourdes. Only Lourdes
testified on how the crime was perpetrated. On the other
TESTIMONIAL EVIDENCE 253
A Qualifications of Witnesses

hand, the defense presented Al's wife, son and daughter


to testify that Al was with them when the alleged crime
took place. The prosecution interposed a timely objection
to the testimonies on the ground of obvious bias due to the
close relationship of the witnesses with the accused.
If you were the judge:
(1) How would you rule on the objection?
(2) xxx

Suggested answer:
(1) I would overrule the objection. Interest in the
outcome of a case which also includes close relationship,
is not a ground to disqualify a witness (Section 20, Rule
132, Rules of Court).

(2) xxx

B a r 1994
Louise is being charged with the frustrated murder
of Roy. The prosecution's lone witness, Mariter, testi-
fied to having seen Louise prepare the poison which she
later surreptitiously poured into Roy's wine glass. Louise
sought the disqualification of Mariter as witness on ac-
count of her previous conviction of perjury.
(1) Rule on Louise's contention.
(2) xxx

Suggested answers:
(1) The contention of Louise has no legal basis.
Basic is the rule that previous conviction is not a ground
for disqualification of a witness, unless otherwise provided
by law. Mariter's conviction is not sufficient to have her
disqualified to testify. Her situation is not one of the
exceptions provided for by law.
(2) xxx
254 EVIDENCE
(The Bar Lectures Series)

B Disqualifications of Witnesses

Disqualification by Reason of Mental Incapacity


1. In relation to a disqualification by reason of mental
incapacity, Section 21 of Rule 130 declares:

"Section 21. Disqualification by reason of mental


incapacity x x x. The following persons cannot be wit-
nesses:
(a) 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;
(b) x x x"

2. To be disqualified as a witness by reason of mental


incapacity, the following must concur:
( a ) the person must be incapable of intelligently
making known his perception to others; and
(b) his incapability must exist at the time of his
production for examination.
Section 21(a) of Rule 130 establishes the rule that the
mental incapacity of the witness at the time of his perception
of the events subject of the testimony does not affect his com-
petency as long as he is competent at the time he is produced
for examination to make known his perception to others. His
incapacity at the time of perception although without legal ef-
fect on his competency to testify, would however, concededly
have an adverse effect on his credibility.

3. The test supplied by the Rules of Court is a simple


test: Is the mental condition of the proposed witness at the
time he is to testify such that he is incapable of intelligently
making known his perception to others? (Section 21[a], Rule
130, Rules of Court). T h e answer to this question will deter-
mine whether or not a person is a mentally competent wit-
ness.
TESTIMONIAL EVIDENCE 255
B Disqualifications of Witnesses

Disqualification by Reason of Immaturity


1. Section 21 of Rule 130 provides:

"Section 21. Disqualification by reason of xxx im-


maturity. The following persons cannot be witness-
es:
(a) xxx
(b) Children whose mental maturity is such as to
render them incapable of perceiving the facts respect-
ing which they are examined and of relating them truth-
fully."

2. To be disqualified as a witness by reason of immatu-


rity the following must concur:

( a ) the mental maturity of the witness must render


him incapable of perceiving the facts respecting which he
is examined; and
( b ) he is incapable of relating his perception truth-
fully (Section 21[b], Rule 130, Rules of Court).
3. N o t e that in a disqualification by reason of mental
incapacity under Section 21(a) of Rule 130, 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. In disqualification by reason of immaturity, the
incompetence of the witness must occur at the time the wit-
ness perceives the event including his incapability to relate
his perceptions truthfully.
The rule on disqualification by reason of immaturity must
however, be construed in relation to the Rule on Examination
of A Child Witness (A.M. No. 004-07-SC, December 15, 2000).

Child Witness; Meaning


1. A "child witness" is any person who at the time of
giving testimony is below the age of eighteen (18) years (Sec-
256 EVIDENCE
(The Bar Lectures Series)

tion 4[a], Rule On Examination of A Child Witness, A.M. No.


004-07-SC).
2. May a person over eighteen (18) years old be some-
times considered as a child? Sometimes, he may. In child
abuse cases, a child includes one over eighteen (18) years but
is found by the court as unable to fully take care of himself or
protect himself from abuse, neglect, cruelty, exploitation, or
discrimination because of a physical or mental disability or
condition (Section 4[a], Rule On Examination of A Child Wit-
ness, A.M. No. 00-4-07-SC).

Competency of a Child Witness


1. Every child is presumed qualified to be a witness.
This is the presumption established by the Rule on Examina-
tion of a Child Witness (Section 6 of A.M. No. 004-07-SC) and
to rebut the presumption of competence enjoyed by a child,
the burden of proof lies on the party challenging his compe-
tence (Section 6[b], Rule on Examination of Child Witness).
2. When the court finds that substantial doubt exists
regarding the ability of the child to perceive, remember, com-
municate, distinguish truth from falsehood, or appreciate the
duty to tell the truth in court, the court shall conduct a com-
petency examination of the child. T h e court may do so motu
propio or on motion of a party (Section 6, Rule on Examination
of a Child Witness).
A party who seeks a competency examination must pres-
ent proof of necessity of a competency examination. Proof of
such necessity must be grounded on reasons other than age of
the child because such age in itself is not a sufficient basis for
a competency examination (Section 6[a], Rule on Examination
of A Child Witness).

3. The competency examination of a child witness is


not open to the public. Only the following are allowed to at-
tend the examination:

( a ) The judge and necessary court personnel;


(b) T h e counsel for the parties;
TESTIMONIAL EVIDENCE 257
B Disqualifications of Witnesses

(c) T h e guardian ad litem;

( d ) One or more support persons for the child; and


( e ) T h e defendant, unless the court determines that
competence can be fully evaluated in his absence (Section
6[c], Rule on Examination of A Child Witness).

4. T h e competency examination of the child shall be


conducted only by the judge. If the counsels of the parties de-
sire to ask questions, they cannot do so directly. Instead, they
are allowed to submit questions to the judge which he may
ask the child in his discretion (Section 6[d], Rule on Examina-
tion of A Child Witness).

5. T h e questions asked at the competency examination


shall be appropriate to the age and developmental level of the
child. T h e questions shall not be related to the issues at the
trial but shall focus on the ability of the child to remember, to
communicate, to distinguish between truth and falsehood and
to appreciate the duty to testify truthfully (Section 6[e], Rule
on Examination of A Child Witness).
6. T h e assessment is designed to be a continuing one.
T h e court has the duty of continuously assessing the compe-
tence of the child throughout his testimony (Section 6[f], Rule
on Examination of A Child Witness).

B a r 2005
(a) xxx
(b) xxx
(c) xxx
(d) xxx
(e) When may the trial court order that the testi-
mony of a child be taken by live-link television?

Suggested answer:
(e) The court may order that the testimony of the
child be taken by live-link television if there is a likeli-
26S EVIDENCE
(The Bar Lectures Series)

hood 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 tes-
timony of the child (Section 25[f], Rule on Examination of
A Child Witness).

Survivorship Disqualification Rule or the Dead


Man's Statute
1. The survivorship disqualification rule (dead man's
statute) is detailed in Section 23 of Rule 130 and provides:

'Section 23. Disqualification by reason of death


or insanity of adverse party. Parties or assignors of
parties to a case, or persons in whose behalf a case is
prosecuted, against an executor or administrator or oth-
er representative of a deceased person, or against a per-
son of unsound mind, upon a claim or demand against
the estate of such deceased person or against such per-
son of unsound mind, cannot testify as to any matter of
fact occurring before the death of such deceased per-
son or before such person became of unsound mind."

2. This rule "applies only to a civil case or a special pro-


ceeding" (Regalado, Remedial Law Compendium ,Vol. II, 2004
Ed. p. 705). case against the estate of the decease
or a person with an unsound mind.
The following are the elements for the application of this
rule: applies only to plaintiff, not defendants.

( a ) T h e defendant in the case is the executor or


administrator or a representative of the deceased or the
person of unsound mind;

(b) T h e suit is upon a claim by the plaintiff against


the estate of said deceased or person of unsound mind;
(c) The witness is the plaintiff, or an assignor of
that party, or a person in whose behalf the case is pros-
ecuted; and

( d ) The subject of the testimony is as to any matter


of fact occurring before the death of such deceased person
TESTIMONIAL EVIDENCE 259
B Disqualifications of Witnesses

or before such person became of unsound mind (Section


23, Rule 130, Rules of Court).

3. A simple hypothetical may help us understand the


rule:

Mr. D approaches Mr. C one rainy Sunday morning


to borrow one hundred thousand pesos to be paid exactly
a year after. Without hesitation, Mr. C gives Mr. D the
amount requested. Mr. C does not require Mr. D to ex-
ecute a promissory note. They had been very good friends
for as long as they can remember. Years ago, when Mr.
C's small business was on the verge of bankruptcy it was
the generosity of the then wealthy Mr. D that bailed him
out. Exactly a day before the agreed date for payment, Mr.
D peacefully joins his Creator without paying the debt.
What does Mr. C do? Well, he does what every creditor
would do under the circumstances. He goes to the execu-
tor of what remains of the estate of Mr. D, and tells him
of the debt of Mr. D. He says:
T o d a y is supposed to be the due date of his debt.
I cannot demand payment from him because he is dead.
You are the executor and you are very much alive. I am
asking you to pay his debt."
The executor retorts:
"Look Sir! I am not sure if you are telling the truth.
Don't get me wrong! I am not calling you a liar but I can-
not verify the truth of your claim. Mr. D is dead. He can-
not speak. His lips are forever sealed. I would be doing an
act unfair to the memory of Mr. D if I were to listen to you.
I am sorry, I cannot pay."

W h a t is the effect of the death of Mr. D? The rule is clear.


M r . C is rendered incompetent to testify as to the transaction
he had with M r . D. He is incompetent because of the possibil-
ity that his claim is fraudulent. If Mr. C were to be heard,
there would be a high risk of paying a fraudulent or a ficti-
tious claim. It is M r . C who has the motive to lie. He is the
survivor. Mr. D cannot lie. He is dead. He did not survive.
Worse, he cannot answer back. He cannot disprove the claim
260 EVIDENCE
(The Bar Lectures Series)

of Mr. C. To level the playing field between the lucky survivor


and the poor deceased, our remedial law ancestors devised a
rule that would seal the lips of the survivor by declaring him
incompetent to testify on the transaction between him and the
deceased. The rule is definitely one that does not protect the
survivor even at the risk of not paying a just and valid claim
because it is the survivor who has the stronger reason to file a
false claim. The rule is for the protection of the guy who died.
Hence, the name, Dead Man's Statute.
4. The Supreme Court had repeatedly held in not a few
cases that the object of the rule is to guard against the temp-
tation to give false testimony in regard to the transaction on
the part of the surviving party and thereby put the parties
upon equal terms. Its purpose is to close the lips of the plain-
tiff when death has closed the lips of the defendant, in order to
remove from the defendant the temptation to do falsehood and
the possibility of fictitious claims against the deceased (Tan v.
Court of Appeals, 295 SCRA 755).

It is obvious that the rule, by its terms, intends to protect


the representatives of the deceased person when sued in such
capacity or a person of unsound mind on a claim against the
estate of the decedent or a claim against the insane person.

How to Apply the Rule

1. The initial point of inquiry for a clearer understand-


ing of the rule would be in regard to the parties involved. In
order to determine whether or not the survivorship disquali-
fication rule will apply to a particular situation, we should
know who the plaintiff is. We should also know who the defen-
dant is.

The plaintiff is the person who has a claim against the


estate of the decedent or person of unsound mind. He is the
survivor. The defendant is the representative (executor or ad-
ministrator) of the deceased or the person of unsound mind.
The persons therefore entitled to invoke the protection of the
dead man's statute are the executor, administrator and any
TESTIMONIAL EVIDENCE 261
B Disqualifications of Witnesses

other representative of a deceased person, when they are the


defendants in a claim against the estate of the deceased. The
protection m a y likewise be invoked by a person of unsound
mind in a claim filed against him.

T h e rule will not apply where the plaintiff is the execu-


tor or administrator as representative of the deceased or if
the plaintiff is the person of unsound mind. So if the executor
of the estate of M r . C, sues M r . D to collect an unpaid debt
incurred in favor of M r . C by M r . D before the death of M r . C,
M r . D, although a survivor, is not precluded from testifying as
to the transaction he previously had with M r . C, because the
case is not upon a claim against the estate of M r . C but a claim
by his estate against M r . D.

2. As held by the Court, the rule contemplates a suit


against the estate, its administrator or executor and not a suit
filed by the administrator or executor of the estate. A defen-
dant who opposes the suit filed by the administrator to re-
cover alleged shares of stock belonging to the deceased, is not
barred from testifying as to his transaction with the deceased
with respect to the shares (Razon u. Intermediate Appellate
Court, 207 SCRA 234).

Also when a counterclaim is set up by the administrator


of the estate, the case is removed from the operation of the
"dead man's statute," the plaintiff may testify to occurrences
before the death of the deceased to defeat the counterclaim
which is not brought against the representative of the estate
but by the representative (Sunga-Chan v. Chua, 363 SCRA
249).
3. T h e next essential point to consider is the nature
of the case. W h a t is the case about? Section 23 of Rule 130
clearly specifies that the case be "upon a claim or demand
against the estate of the deceased person or a person of un-
sound mind." T h e rule does not apply when the action brought
is not "against" the estate, or not upon a claim or demand
"against" the estate. This claim, from the tenor of the rule, is
by its nature civil, not criminal because the estate itself can-
not be criminally liable.
262 EVIDENCE
(The Bar Lectures Series)

4. The parties and the subject of the action having


been determined, the inquiry should now shift to the persons
prohibited to testify and the subject matter of their testimony.
The provisions of Section 23 of Rule 130 describes them as the
"parties or assignors of parties to a case, or persons in whose
behalf a case is prosecuted." These persons are those who had
previous dealings with the deceased or the person of unsound
mind. The rule is obviously intended to be exclusive and does
not prohibit a testimony by a mere witness to the transac-
tion between the plaintiff and the deceased and who has no
interest in such transaction. Thus, offering the testimony of a
so-called "disinterested witness" is not a transgression of the
rule since the prohibition extends only to the party or his as-
signor or the person in whose behalf the case is prosecuted.
Consider the following illustration:

The case is an action for a sum of money against the de-


cedent's estate. The decedent is Mr. D, the debtor. The plaintiff
is Mr. C, the creditor. Mr. C claims that Mr. D borrowed two
hundred thousand pesos from him and that the debt has been
due even before the death of Mr. D who despite demand upon
him, failed to pay. Mr. C calls his secretary to testify about the
transaction that occurred in her presence.

Q: What did Mr. D say to Mr. C on that day and time


you mentioned earlier?
Adverse counsel: "Objection, Your Honor. I invoke the
dead man's statute."
Counsel for Mr. C: "May I be heard, Your Honor before
ruling on the objection?"
Court: 'You may."
Counsel for Mr. C: "The ground for the objection does not
a
PPly> Your Honor. The witness is not a plaintiff or
an assignor of the plaintiff or one on whose behalf
the claim against the estate is prosecuted."
Court: "Objection is overruled." (The reason for the ruling
is obvious. The witness is not one of those prohibited
to testify).
TESTIMONIAL EVIDENCE 263
B Disqualifications of Witnesses

B a r 2001
Maximo filed an action against Pedro, the adminis-
trator of the estate of the deceased Juan, for the recovery
of a car which is part of the latter's estate. During the
trial, Maximo presented witness Mariano who testified
that he was present when Maximo and Juan agreed that
the latter would pay a rental of P20,000 for the use of
Maximo's car for one month after which Juan should im-
mediately return the car to Maximo. Pedro objected to the
admission of Mariano's testimony.

If you were the judge, would you sustain Pedro's ob-


jection? Why?

Suggested answer:
The objection of Pedro should not be sustained. The
testimony is admissible because the witness is not dis-
qualified to testify. Those disqualified under the dead
man's statute or the survivorship disqualification rule
are parties or assignors of parties to a case, or persons in
whose behalf a case is prosecuted. The witness is not one
of those enumerated under the rule (Section 23, Rule 130,
Rules of Court).

5. T h e incompetency imposed upon the witness is to


testify "on any matter of fact occurring before the death of
such deceased person or before such person became of unsound
mind." Hence, if the subject of the testimony is on some other
matter, the witness may testify on such matter as when the
subject of the testimony is on a fact which transpired after the
death of such person. Also, since a claim or demand against
the estate implies a claim adverse to the estate, a testimony
beneficial to such estate should not be excluded.
In other words, the rule does not altogether intend to
keep the witness out of the stand altogether. The witness is
merely precluded from testifying on particular topics. Thus,
a testimony favorable to the estate or to the insane person is
not barred since the rule is designed to protect the interest of
the estate of the deceased or insane person. In one old case,
264 EVIDENCE
(The Bar Lectures Series)

an oral testimony to prove a lesser claim than what might


be warranted by the evidence was allowed (Icard v. Masigan,
40 O.G., 13th Suppl., 215; 71 Phil. 419). Also, witnesses who
testify on the basis of their knowledge of a transaction not
based on their dealings with the deceased are not barred. As
the Court ruled: "The dead man's statute does not operate to
close the mouth of a witness as to any matter of fact coming to
his knowledge in any other w a y than through personal deal-
ings with the deceased person, or communication made by the
deceased to the witness." (Bordalba v. Court of Appeals, 374
SCRA 555).

6. The survivorship disqualification rule is intended to


benefit the estate of the deceased or insane person, hence, this
protection may be waived by ( a ) failing to object to the testi-
mony, or (b) cross-examining the witness on the prohibited
testimony (Santos v. Santos, 366 SCRA 395), or by (c) offering
evidence to rebut the testimony.

Comment: The survivorship disqualification rule raises


legitimate questions on the justness of the rule. In trying to
avoid fictitious claims against the estate, it ignores the rights
of persons with legitimate claims and whose lips are sealed
because of a transaction conducted without any third person
as witness or any other evidence to prove the claim.

Bar 2007
True or False.
(a) The surviving parties rule bars Maria from tes-
tifying for the claimant as to what the deceased Jose had
said to her, in a claim filed by Pedro against the estate of
Jose.

Suggested answer:
(a) False. The rule bars only a party plaintiff, or
his assignor or a person in whose behalf a case is pros-
ecuted (Section 23, Rule 130, Rules of Court). Maria is
merely a witness and is not one of those enumerated as
barred from testifying.
TESTIMONIAL EVIDENCE 265
B Disqualifications of Witnesses

Marital Disqualification Rule (Spousal Immunity)

1. T h e marital disqualification rule is provided for in


Section 22 of Rule 130 and quoted hereunder:

"Section 22. Disqualification by reason of mar-


riage. During their marriage, neither the husband nor
the wife may testify for or against the other without the
consent of the affected spouse, except in a civil case by
one against the other, or in a criminal case for a crime
committed by one against the other or the latter's direct
descendants or ascendants."

2. T h e rule prohibiting testimony by one spouse against


the other is based on society's intent to preserve the marriage
relations and promote domestic peace. A spouse testifying
against the other creates an ugly sight inimical to society's in-
terests. T h e rule prohibiting a testimony in favor of the spouse
is intended to discourage the commission of perjury.
T h e case of Alvarez v. Ramirez (473 SCRA 72) gives the
specific reasons for the rule, thus:
( a ) There is identity of interests between husband
and wife;
( b ) If one were to testify for or against the other,
there is a consequent danger of perjury;
(c) T h e policy of the law is to guard the security
and confidences of private life, even at the risk of an occa-
sional failure of justice, and to prevent domestic disunion
and unhappiness; and
( d ) W h e r e there is want of domestic tranquility
there is danger of punishing one spouse through the hos-
tile testimony of the other.
3. The marital disqualification rule under Section 22
of Rule 130, forbids the husband or the wife to testify for or
against the other without the consent of the affected spouse
except in those cases authorized by the rule. The prohibition
extends not only to a testimony adverse to the spouse but
also to a testimony in favor of the spouse. It also extends to
266 EVIDENCE
(The Bar Lectures Series)

both criminal and civil cases because the rule does not distin-
guish.
4. In order that the husband or wife may claim the
privilege, it is essential that they be validly married. If they
are not, there is no privilege (Moran, Comments on the Rules of
Court, Vol. 5,176 citing state v. Hancock, 28Nev. 300, 32, Pac.
95). The rule therefore, does not cover illicit cohabitation.
Section 22 of Rule 130 requires not only a valid marriage
but the existence of that valid marriage at the moment the
witness-spouse gives the testimony.
5. The rule applies whether the witness-spouse is a
party to the case or not but the other spouse must be a party.
That the other spouse must be a party is evident from the
phrase " . . .neither the husband nor the wife may testify for or
against the other..."

6. The prohibited testimony is one that is given or of-


fered during the existence of the marriage. Section 22 explic-
itly refers to a testimony "During their marriage..." Hence,
the rule does not prohibit a testimony for or against the other
after the marriage is dissolved. W h e n the marriage is dis-
solved on the grounds provided for by law like annulment or
declaration of nullity, the rule can no longer be invoked. One
may now testify for against the other despite an objection be-
ing interposed by the latter because there is no more marriage
to speak of.

7. If the testimony for or against the other spouse is


offered during the existence of the marriage, it does not mat-
ter if the facts subject of the testimony occurred or came to
the knowledge of the witness-spouse before the marriage. T h e
affected spouse may still invoke the rule by objecting to the
testimony as long as the testimony is offered during the mar-
riage. Nothing in the tenor of the rule allows a contrary v i e w .

To illustrate: Before the marriage of W to H, she wit-


nessed the murder of X by H but she never reported what she
witnessed to the authorities. A year after the murder, H and
W married. Barely six months after the marriage, W became a
TESTIMONIAL EVIDENCE 267
B Disqualifications of Witnesses

battered wife and to get even with H, she decided to report the
murder to the police, ( a ) M a y she testify against H over the
latter's objection even if the murder took place before the mar-
riage? Answer: She cannot testify over the objection of H. The
situation is covered by the marital disqualification rule, (b)
Suppose a year after the marriage, the marriage is annulled,
may W now testify despite the objection of H? Answer: She can
now testify after the marriage is annulled. The prohibition no
longer applies since the testimony is to be offered after, not
during the marriage.

8. Be it noted that the testimony is prohibited only


over the objection of the affected spouse or the spouse against
whom the testimony is offered. It is the latter spouse who has
the right to object to the competency of the spouse-witness. It
goes without saying that the testimony is admissible where
no objection is interposed by the spouse who has the right to
invoke the prohibition. In other words, the benefit of the rule
may be waived and it may be waived impliedly or expressly.
T h e pronouncements of the Supreme Court in one case is
instructive:

"x x x Under this rule, neither the husband nor


the wife may testify for or against the other without the
consent of the affected spouse, except in a civil case by
one against the other, or in a criminal case for a crime
committed by one against the other or the latter's direct
descendants or ascendants. However, objections to the
competency of a husband and wife to testify in a crimi-
nal prosecution against the other may be waived as in
the case of other witnesses generally. The objection to the
competency of the spouse must be made when he or she is
first offered as a witness. In this case, the incompetency
was waived by appellant's failure to make a timely objec-
tion to the admission of his wife's testimony." (People v.
Pansensoy, 388 SCRA 669)

9. The testimony covered by the marital disqualifica-


tion rule not only consists of utterances but also the produc-
tion of documents (State v. Bramlet, 114 S. C. 389, 103 S.E.
755).
268 EVIDENCE
(The Bar Lectures Series)

Exceptions to the Marital Disqualification Rule


1. In the following instances, a spouse may testify for
or against the other even without the consent of the latter:
( a ) in a civil case by one against the other; or
(b) in a criminal case for a crime committed by one
against the other, or the latter's direct descendants or
ascendants (Section 22, Rule 130, Rules of Court).
2. The phrase, "or the latter's direct descendants or as-
cendants" did not appear in the old rules. Section 19(c) of the
then Rule 130 only mentioned two exceptions: ( a ) in a civil
case by one against the other; or ( b ) in a criminal case for a
crime committed by one against the other.
The current rule has been harmonized with the Supreme
Court ruling in Ordoho v. Daquigan (62 S C R A 270), allowing
the wife to testify against her husband who was accused of
raping their daughter.

In Ordoho, the Court ruled that the correct rule is the one
laid down in Cargill v. State (35 ALR 133, 220 Pac 64, 25 Okl.
314), which held that:

"The rule that the injury must amount to a physical


wrong upon the person is too narrow x x x . The better rule
is that, when an offense directly attacks or directly and
vitally impairs the conjugal relations, it comes within the
exception to the statute. . ."

3. If the wife sues the husband for fraudulently em-


bezzling the paraphernal funds of the former, the reason for
the prohibition in the rule ceases. T h e wife can now testify
against the husband. Also, if the wife is sued for adultery, the
husband cannot be barred from testifying against the wife.
In a suit for annulment of marriage, each spouse can testify
against each other. T h e same rule applies when the husband
is sued by the wife for bigamy.

4. In order for a spouse to be allowed to testify against


the other in a civil case, the case must be a "civil case by one
TESTIMONIAL EVIDENCE 269
B Disqualifications of Witnesses

against the other." This contemplates a situation where one


spouse is a plaintiff or petitioner and the other spouse is a
defendant or respondent. W h e r e the civil case is between a
spouse and the direct descendants or ascendants of the other,
the marital disqualification rule still applies. Thus, if the wife
sues the father of her husband for collection of a loan, the hus-
band may be barred from testifying against the wife upon the
objection of the latter. This is because the civil case is not by
one against the other but between a spouse and the parent of
the other.

5. T h e rule is different in a criminal case. In a criminal


case, the privilege of one to testify against the other is not con-
fined to crimes committed by one against the other, but covers
crimes committed by one against the direct descendants or
ascendants of the latter like the latter's children or parents.
H o w e v e r , crimes committed against a spouse's collateral rela-
tives like uncles, aunties, cousins or nephews and nieces are
not covered by the exception because they are neither direct
descendants nor ascendants.

Bar 2000
Vida and Romeo are legally married. Romeo is
charged in court with the crime of serious physical in-
juries committed against Selmo, son of Vida, step-son of
Romeo. Vida witnessed the infliction of the injuries on
Selmo by Romeo. The public prosecutor called Vida to the
witness stand and offered her testimony as eyewitness.
Counsel for Romeo objected on the ground of the marital
disqualification rule under the Rules of Court.
(a) Is the objection valid?
(b) Will your answer be the same if Vida's testimo-
ny is offered in a civil case for recovery of personal prop-
erty filed by Selmo against Romeo?

Suggested answers:
(a) The objection is not valid. While the rule pro-
vides that neither the husband nor the wife may testify
270 EVIDENCE
(The Bar Lectures Series)

for or against the other without the consent of the affected


spouse, the prohibition is merely the general rule. Said
rule is subject to certain exceptions, one of which is in a
criminal case committed by one against the direct descen-
dant of the other. Romeo is accused of committing a crime
against Selmo, the son of Vida and the latter's direct de-
scendant (Section 22, Rule 130, Rules of Court).
(b) The answer will not be the same. The rule in
a criminal case is not the same as that in a civil case.
In a civil case, for the marital disqualification rule not to
apply, the case must be by one spouse against the other.
In the case under consideration, the case is by the son
(Selmo) of one spouse (Vida) against the other spouse (Ro-
meo). Romeo may thus, invoke the marital disqualifica-
tion rule against Vida's proposed testimony.

Testimony Where Spouse is Accused With Others


M a y a spouse testify in a trial where the spouse is a co-
accused? Consider the following illustration:

Accused-appellant was accused with parricide for


the alleged killing of his own father but was tried jointly
in the murder case filed against his two other co-accused,
two brothers who were his alleged conspirators in causing
the death of his father. One of the witnesses presented by
the prosecution against all the accused was the wife of ac-
cused-appellant. May the wife testify in the proceedings
against all the accused?

In People v. Quidato, Jr. (297 SCRA 1), the Court ruled


in the affirmative but likewise held that the testimony of the
wife in reference to her husband must be disregarded since the
husband timely objected thereto under the marital disqualifi-
cation rule. T h e Court explained that the disqualification is
between husband and wife, but the rule does not preclude the
wife from testifying when it involves other parties or accused.
Hence, the wife could testify in the murder case against the
brothers who were jointly tried with the husband of the wit-
ness. The Court stressed however, that the testimony cannot,
TESTIMONIAL EVIDENCE 271
B Disqualifications of Witnesses

be used against accused-appellant directly or through the


guise of taking judicial notice of the proceedings in the murder
case without violating the marital disqualification rule. "What
cannot be done directly cannot be done indirectly."

Testimony by the Estranged Spouse

1. Section 22 of Rule 130 prohibits a testimony by one


spouse against the other without the consent of the latter
"during their marriage." Literally, this prohibition would cov-
er a testimony by the estranged spouse because a separation
"de facto" does not sever the marriage bonds and the spouses
remain legally married to each other. A testimony under such
a situation would still technically be a testimony "during their
marriage." This literal construction of the rule has however,
been rejected by the Supreme Court.

2. Whether or not the estranged spouse may testify


against the other is illustrated by the following facts:

Susan Ramirez, the respondent is the complaining


witness in a criminal case for arson of her house against
the accused Maximo Alvarez, the petitioner who is the
estranged husband of Esperanza Alvarez, the sister of
the respondent and who also lives in the house allegedly
burned.
During the trial of the case, the private prosecutor
called Esperanza Alvarez to the witness stand as the first
witness against her husband. Petitioner and his counsel
raised no objection. In the course of Esperanza's direct
testimony against petitioner, the latter showed "uncon-
trolled emotions," prompting the trial judge to suspend
the proceedings.
Subsequently, before the continuation of the testi-
mony of his estranged wife, petitioner, through counsel,
filed a motion to disqualify Esperanza Alvarez from tes-
tifying against him. The trial court issued an order dis-
qualifying Esperanza Alvarez from further testifying and
deleting her testimony from the records. The prosecution
filed a motion for reconsideration but was denied.
EVIDENCE
(The Bar Lectures Series)

The denial prompted respondent Susan Ramirez,


the complaining witness to file with the Court of Appeals
a petition for certiorari with application for preliminary
injunction and temporary restraining order. The Court of
Appeals rendered a decision nullifying and setting aside
the assailed orders issued by the trial court. In a subse-
quent petition for review on certiorari, the issue sought to
be resolved by the Court was whether Esperanza Alvarez
can testify against her estranged husband.

In sustaining the Court of Appeals allowing the testimo-


of Esperanza Alvarez, the Court explained:

" x x x like all other general rules, the marital dis-


qualification rule has its own exceptions, both in civil
actions between the spouses and in criminal cases for
offenses committed by one against the other. Like the
rule itself, the exceptions are backed by sound reasons
which, in the excepted cases, outweigh those in support
of the general rule. For instance, where the marital and
domestic relations are so strained that there is no more
harmony to be preserved nor peace and tranquility which
may be disturbed, the reason based upon such harmony
and tranquility fails. In such a case, identity of interests
disappears and the consequent danger of perjury based
on that identity is non-existent. Likewise, in such a situ-
ation, the security and confidences of private life, which
the law aims at protecting, will be nothing but ideals,
which through their absence, merely leave a void in the
unhappy home (Emphasis supplied).
"Obviously, the offense of arson attributed to peti-
tioner, directly impairs the conjugal relation between him
and his wife Esperanza. His act, as embodied in the In-
formation for arson filed against him, eradicates all the
major aspects of marital life such as trust, confidence, re-
spect and love by which virtues the conjugal relationship
survives and flourishes.
"As correctly observed by the Court of Appeals:
"The act of private respondent in setting fire to the
house of his sister-in-law Susan Ramirez, knowing fully
well that his wife was there, and in fact with the alleged
TESTIMONIAL EVIDENCE 273
B Disqualifications of Witnesses

intent of injuring the latter, 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 im-
pairing the conjugal relation. It underscored the fact, that
the marital and domestic relations between her and t.hp
accused-husband have become so strained that there is
no more harmony, peace or tranquility to be preserved
The Supreme Court has held that in such a case, identity
is non-existent. In such a situation, the security and con-
fidences of private life which the law aims to protect are
nothing but ideals which through their absence, merely
leave a void in the unhappy home. (Alvarez v. Ramirez,
473 SCRA 72 [October 14, 2005] citing People v. Casta-
heda, 271 SCRA 504; Emphasis supplied). Thus, there is
no longer any reason to apply the Marital Disqualification
Rule."

"It should be stressed that as shown by the records,


prior to the commission of the offense, the relationship
between petitioner and his wife was already strained. In
fact, they were separated de facto almost six months be-
fore the incident. Indeed, the evidence and facts presented
reveal that the preservation of the marriage between pe-
titioner and Esperanza is no longer an interest the State
aims to protect" (Alvarez v. Ramirez, supra).

B a r 2006
Leticia was estranged from her husband Paul for
more than a year due to his suspicion that she was having
an affair with Manuel, their neighbor. She was temporar-
ily living with her sister in Pasig City.
For unknown reasons, the house of Leticia's sister
was burned, killing the latter. Leticia survived. She saw
her husband in the vicinity during the incident. Later he
was charged with arson in an Information filed with the
Regional Trial Court, Pasig City.
During the trial, the prosecutor called Leticia to the
witness stand and offered her testimony to prove that her
husband committed the arson.
274 EVIDENCE
(The Bar Lectures Series)

Can Leticia testify over the objection of her husband


on the ground of marital privilege?

Suggested answer:
Leticia cannot testify. Section 22, of Rule 130 bars
her testimony without the consent of the husband during
the marriage. The separation of the spouses has not oper-
ated to terminate their marriage (Note: This is an answer
based on the tenor of the Rules of Court).
The following answer should also be considered:
Leticia may testify over the objection of her hus-
band. Where the marital and domestic relations between
her and the accused-husband have become so strained
that there is no more harmony, peace or tranquility to
be preserved, there is no longer any reason to apply the
Marital Disqualification Rule (People v. Castaneda, 271
SCRA 504; Alvarez v. Ramirez, 473 SCRA 72 [October 14,
2005).

Marital Privileged Communications


1. There are two independent codal provisions which
cover marital disqualifications. T h e first is Section 22 of Rule
130 (Disqualification by reason of marriage) and the second is
Section 24(a) of Rule 130 (Disqualification by reason of privi-
leged communication).

2. Under Section 24 of Rule 130 of the Rules of Court,


there are certain persons who cannot testify as to matters
learned in confidence. A m o n g those subject to the rule are le-
gitimate spouses. T h e provision states as follows:

"Section 24 Disqualification by reason of privi-


leged communication. The following persons cannot
testify as to matters learned in confidence in the follow-
ing cases:

(a) The husband or wife, during or after the mar-


riage, cannot be examined without the consent of the
other as to any communication received in confidence
TESTIMONIAL EVIDENCE 275
B Disqualifications of Witnesses

by one from the other during the marriage except in a


civil case by one against the other, or in a criminal case
for a crime committed by one against the other or the
latter's direct descendants or ascendants; x x x"

3. Under the provisions of Section 24(a) of Rule 130, the


husband or the wife cannot be examined without the consent
of the other as to any communication received in confidence by
one from the other during the marriage.

T h e application of the rule requires the presence of the


following elements:

( a ) there must be a valid marriage between the


husband and wife;

( b ) there is a communication received in confidence


by one from the other; and

(c) the confidential communication was received


during the marriage.
4. "The law insures absolute freedom of communication
between the spouses by making it privileged x x x . Neither
may be examined without the consent of the other as to any
communication received in confidence by one from the other
during the marriage, save for specified exceptions. But one
thing is freedom of communication; quite another is a compul-
sion for each one to share what one knows with the other and
this has nothing to do with the duty of fidelity that each owes
to the other" (Zulueta v. Court of Appeals, 253 SCRA 699, Feb-
ruary 20,1996).
5. Since the application of the rule requires a confiden-
tial information received by one spouse from the other dur-
ing the marriage, information acquired by a spouse before the
marriage even if received confidentially will not fall squarely
with the provisions of Section 24(a) of Rule 130 but divulg-
ing the same may be objected to under Section 22 of Rule 130
upon proper objection as long as the information is sought to
be revealed during the marriage through a testimony for or
against the affected spouse. The tenor of Section 22 of Rule
276 EVIDENCE
(The Bar Lectures Series)

130 does not distinguish as to when the information subject


of the testimony was acquired and thus, may cover matters
which occurred or adverse information acquired prior to the
marriage. It is sufficient that the witness-spouse testifies dur-
ing the marriage. It is unlike Section 24(a) which explicitly
requires that the confidential information be received during
the marriage.
Note that Section 24(a) of Rule 130 also requires that the
information received in confidence during the marriage be "by
one from the other." The implication is clear: confidential in-
formation received from a third person is not covered by the
privilege.
5. For the information to be confidential, it must be
made during and by reason of the marital relations and is
intended not to be shared with others. Without such inten-
tion, common reason suggests that the information is not
confidential. Thus, in U.S. v. Antipolo (37 Phil. 726), the wife
was allowed, in a prosecution for murder, to testify as to her
husband's dying declaration regarding the identity of the as-
sailant because there was no intent of confidentiality in the
information. T h e declaration is intended to be communicated
after the husband's death because it was made in the further-
ance of justice.

Communications in private between husband and wife


are presumed to be confidential (Blau v. United States, 340
U.S. 332 in McCormick on Evidence, Third Edition, 80). A
variety of factors however, may serve to rebut a claim that
confidentiality was intended. In particular, if a third person
(other than a child of the family) is present with the knowl-
edge of the communicating spouse, this stretches the web of
confidence beyond the marital pair, and the communication
is unprivileged (Pereira v. United States, 347 U.S. 1 in Mc-
Cormick on Evidence, Third Edition, 80). If children of the
family are present this likewise deprives the conversation of
protection unless the children are too young to understand
what is said (Freeman v. Freeman, 238 Mass, 150, 130 N. E.
220 in McCormick on Evidence, Third Edition, 80).
TESTIMONIAL EVIDENCE 277
B Disqualifications of Witnesses

6. T h e marital privilege rule, being a rule of evidence,


may be w a i v e d by failure of the claimant to object timely to
its presentation or by any conduct that may be construed as
implied consent (Lacurom v. Jacoba, A.C. No. 5921, March 10
2006).

B a r 2004
XYZ, an alien, was criminally charged of promot-
ing and facilitating child prostitution and other sexual
abuses under Rep. Act No. 7610. The principal witness
against him was his Filipina wife, ABC. Earlier, she had
complained that XYZ's hotel was being used as a center
for sex tourism and child trafficking. The defense counsel
for XYZ objected to the testimony of ABC at the trial of
the child prostitution case and the introduction of the af-
fidavits she executed against her husband as a violation
of espousal confidentiality and marital privilege rule. It
turned out that DEF, the minor daughter of ABC by her
first husband who was a Filipino, was molested by XYZ
earlier. Thus, ABC had filed for legal separation from
XYZ since last year.

May the court admit the testimony and affidavits of


the wife, ABC, against her husband XYZ, in the criminal
case involving child prostitution?

Suggested answer:
If the testimony and affidavit of the wife are evidence
of the case against her husband for child prostitution in-
volving her daughter, the evidences are admissible. The
marital privileged communication rule under Section 24
of Rule 130 as well as the marital disqualification rule un-
der Section 22 of Rule 130 do not apply to and cannot be
invoked in a criminal case committed by a spouse against
the direct descendants of the other.
A crime committed by the husband against the
daughter of his wife is considered a crime committed
against the wife and directly attacks or vitally impairs the
marital relations (Ordono v. Daquigan, 62 SCRA 270).
278 EVIDENCE
(The Bar Lectures Series)

Explanation of Distinctions Between the Marital Disqualifi-


cation Rule and the Marital Privileged Communication Rule
1. Section 24(a) of Rule 130 has reference to confiden-
tial communications received by one spouse from the other
during the marriage. The marital disqualification rule under
Section 22 of Rule 130 does not refer to confidential communi-
cations between the spouses. It will not come into play when
the fact pattern in a problem makes reference to confidential
communications between husband and wife during the mar-
riage. Section 24(a) of Rule 130 will instead apply.

However, communications that are not intended to be


confidential because they were uttered in the presence of third
parties are not deemed confidential even when made during
the marriage, but Section 22 could apply instead of Section
24(a) when used as parts of a testimony for or against the
party-spouse.
The marital privileged communication rule in Sec 24(a)
applies only to testimonies of a confidential nature received by
one spouse from the other during the marriage and obviously
does not include acts merely observed by the spouse unless
such acts are intended as a means of conveying confidential
communication by one to the other.

Section 22 of Rule 130 includes facts, occurrences or infor-


mation even prior to the marriage unlike Section 24(a) which
applies only to confidential information received during the
marriage. In this sense, Section 22 is broader because it pre-
vents testimony for or against the spouse on any fact and not
merely a disclosure of confidential information.

2. When the marital privileged communication rule


under Section 24(a) applies, the spouse affected by the disclo-
sure of the information or testimony may object even after the
dissolution of the marriage. T h e privilege does not cease just
because the marriage has ended. T h e marital disqualification
rule under Section 22 on the other hand, can no longer be in-
voked once the marriage is dissolved. It may be asserted only
during the marriage.
TESTIMONIAL EVIDENCE 279
B Disqualifications of Witnesses

3. T h e marital disqualification rule in Section 22 re-


quires that the spouse for or against whom the testimony is
offered is a party to the action. This is not required in the
marital privileged communication rule in Section 24(a) and
applies regardless of whether the spouses are parties or not.
N o t e : In the marital disqualification rule in Section 22,
the prohibition is a testimony for or against the other. In Sec-
tion 24(a), what is prohibited is the examination of a spouse as
to matters received in confidence by one from the other during
the marriage.

B a r 1995
Allan and Narita were married on August 1, 1989.
After two months, Narita told Allan in confidence that the
10-year old Liza whom she claimed to be her niece was ac-
tually her daughter by a certain Basilio, a married man.
In 1992, Narita obtained a judicial decree of nullity
of her marriage with Allan on the latter's psychological
incapacity to fulfill his marital obligations. When the de-
cree became final, Liza, assisted by Narita, filed 10 cases
of rape against Allan purportedly committed in 1991.
During the trial, Narita was called to the witness stand
to testify as a witness against Allan who objected thereto
on the ground of marital disqualification.
1. As public prosecutor, how would you meet the
objection?
2. Suppose Narita's testimony was offered while
the decision nullifying her marriage to Allan was pending
appeal, would your answer be different?
3. Suppose Narita died during the pendency of the
appeal, and soon after, the legal wife of Basilio sued for
legal separation on sexual infidelity in view of Basilio's
love affair with Narita. At the trial Allan was called by
Basilio's wife to testify that Narita confided to him (Al-
lan) during their marriage that Liza was her love child
by Basilio. As counsel for Basilio, can you validly object
to the presentation of Allan as witness for the plaintiff?
Explain.
280 EVIDENCE
(The Bar Lectures Series)

Suggested answers:
(1) I would ask the court to overrule the objection.
Under the marital disqualification rule, the objection to
the testimony of one spouse against the other may be
invoked only during the marriage. At the time the tes-
timony of Narita was offered, the marriage was already
dissolved. Besides, the crime was committed against a di-
rect descendant of Narita (Section 22, Rule 130, Rules of
Court).
(2) The answer would not be different and the
court may likewise be asked to overrule the objection.
The marital disqualification rule may not be invoked in a
criminal case for a crime committed against the direct de-
scendant of the other spouse. Here, Liza is the daughter
of Narita.
(3) Suggested answer of U.P. Law Center: Yes. I
could validly object to the presentation of Allan as a wit-
ness on the ground that the communication of Narita was
a privileged communication which could be invoked dur-
ing or after the marriage. Moreover, the testimony of Al-
lan would be hearsay.
Writer's Comment: It is submitted that the testimo-
ny could not be validly objected upon by Basilio's counsel
on the basis of the marital privileged communication rule.
Basilio does not own the privilege. The prerogative to ob-
ject to a confidential communication between spouses is
vested upon the spouses themselves, particularly the com-
municating spouse, not a third person. This is clear from
the provision: "...cannot be examined without the consent
of the other..." (Section 24, Rule 130, Rules of Court). The
proper objection should be on hearsay grounds, not on
privileged communications.

Bar 1998
C is the child of the spouses H and W. H sued his wife
for judicial declaration of nullity of marriage under Art.
36 of the Family Code. In the trial, the following testified
over the objection of W: C, H and D, a doctor of medicine
who used to treat W. Rule on Ws objection which are the
following:
TESTIMONIAL EVIDENCE 281
B Disqualifications of Witnesses

(a) H cannot testify against her because of the rule


on marital privilege.
(b) xxx
(c) xxx

Suggested answer:
The objection should be overruled. The rule invoked
by W, i.e., the rule on marital privilege, does not apply to
a civil case by one against the other. The suit between the
spouses is a civil case against the other.

Attorney-Client Privilege

1. T h e following is the applicable provision involving


privileged communications between an attorney and his cli-
ent:

"Section 24. Disqualification by reason of privi-


leged communication. The following persons cannot
testify as to matters learned in confidence in the follow-
ing cases:
(a) xxx
(b) An attorney cannot, without the consent of
his client, be examined as to any communication made
by the client to him, or his advice given thereon in the
course of, or with a view to, professional employment,
nor can attorney's secretary, stenographer, or clerk be
examined, without the consent of his client and his em-
ployer, concerning any fact the knowledge of which has
been acquired in such capacity."

2. The following requisites must be present for the


privilege to arise:
( a ) There must be a communication made by the
client to the attorney or an advice given by the attorney
to his client;
(b) The communication or advice must have been
given in confidence; and
282 EVIDENCE
(The Bar Lectures Series)

(c) The communication or advice must have been


given either in the course of the professional employment
or with a view to professional employment.
3. The present rules do not require a perfected attor-
ney-client relationship for the privilege to exist. The commu-
nications between the attorney and the client no longer need
to be in the course of an actual professional employment. It
is enough that the communication or advice be "with a view
to" professional employment (Section 24[b], Rule 130, Rules
of Court). Hence, the privilege is extended to communications
made for the purpose of securing the services of counsel even
if the counsel later refuses the professional relationship. T h e
insertion of the clause "with a v i e w to" includes preliminary
negotiations within the privilege. Without the clause, it would
seem extremely risky to consult an attorney for the first time
and communicate to him certain sensitive information with-
out the protection of confidentiality.

4. T h e relationship between the attorney and the cli-


ent is said to exist where a person employs the professional
services of an attorney or seeks professional guidance, even
though the lawyer declines to handle the case (Keir v. State,
152 Fla, 389,11 So. [2d] 886 [1943]).

5. The privilege of a client to keep communications to


his attorney confidential is predicated upon the client's belief
that he is consulting a lawyer in that capacity and has mani-
fested his intention to seek professional legal advice (24 Iowa
L. Rev. 538, In Note). There is authority to support the theory
that it is enough if he reasonably believes that the person con-
sulted is a lawyer, although in fact he is not as in the case of a
detective pretending to be a lawyer (People v. Barker, 60 Mich.
277, 27N.W. 539 cited in McCormick on Evidece, 88). For the
privilege to exist, payment of a fee is not essential (United
States v. Landorf, 591 F .2d 36 3d Cir. 1980).

6. Where a person consults an attorney not as a lawyer


but merely as a friend, or a participant in a business transac-
tion, the consultation would not be one made in the course
of a professional employment or with a v i e w to professional
TESTIMONIAL EVIDENCE 283
B Disqualifications of Witnesses

employment as required by Section 24(b) Rule 130, Rules of


Court, and if proven to be so, would not be within the ambit of
the privilege (U.S. v. Tedder, 801 F.2d 1437 [4th Cir. 1986]).
7. Accordingly, the privilege is not confined to commu-
nications regarding actual pending cases. The communica-
tions may refer to anticipated litigations or may not refer to
any litigation at all. It is sufficient that the statements have
been made in the course of legitimate professional relation-
ship between the attorney and the client (Jones on Evidence,
Vol. 3, 749). T h e communication may be oral or written but
is deemed to extend to other forms of conduct like physical
demonstration as long as they are intended to be confidential.
It is likewise submitted that the communication between a
client and his lawyer is not deemed lacking in confidentiality
solely because the communication is transmitted by facsimile,
cellular telephone, or other electronic means.

8. It is commonly acknowledged that the privilege does


not extend to communications where the client's purpose is the
furtherance of a future intended crime or fraud (8 Wigmore,
Evidence, 2298, 2299 [McNaughton Reev. 1961]; Gardner,
The Crime of Fraud Exception to the Attorney-Client Privilege,
47 A.BA.J. 708), or for the purpose of committing a crime or a
tort (U.S. v. Wilson, 798 F.2d 509 [1st Cir. 1986] or those made
in furtherance of illicit activity (U.S. v. Aucoin, 964 F.2d 1492
[5th Cir. 1992]). Accordingly, although communications made
when used to further crimes are not privileged, the discussion
of the communications in confidence with the lawyer after the
crime has been committed may still be privileged even though
the earlier ones were not (In re Federal Grand Jury Proceed-
ings 89-10 [MIA] 938 F.2d 1578 [11th Cir. 1991]).
9. Does the privilege preclude inquiries into the fact
that the lawyer was consulted? The traditional and still ap-
plicable rule is that an inquiry into the fact of consultation or
employment is not privileged. Even the identity of the client
is not privileged as well as that of the lawyer is not privileged
(Behrens v. Hironimus, 170 F.2d 627 [4th Cir. 1948]; Shien-
tag, J. in People v. Warden, 270 N.Y.S., 369). However, under
284 EVIDENCE
(The Bar Lectures Series)

the so-called "last link doctrine," non-privileged information,


such as the identity of the client, is protected if the revelation
of such information would necessarily reveal privileged infor-
mation (In re Grand Jury Proceedings [GJ90-2J, 946 2d 746
[11th Cir. 1991]).
10. The statements of the client need not have been
made to the attorney in person. Those made to the attorney's
secretary, clerk or stenographer for transmission to the attor-
ney for the purpose of the professional relationship or with a
view to such relationship or those knowledge acquired by such
employees in such capacity are covered by the privilege. L i k e
the attorney, their employer, these persons cannot be exam-
ined as to the communication made by the client or the advice
given by the attorney without the clients consent and also the
employer's consent (Section 24[b], Rule 130, Rules of Court).

11. Before the statements of the client and the advice of


the attorney be deemed as privileged, the same should have
been intended to be confidential. This confidentiality is the
essence of the privilege. T h e communications between law-
yer and client do not become confidential merely from the fact
that they were made to each other. T h e matters communicat-
ed to the attorney are evidently not intended to be confiden-
tial when they were made to the lawyer but in the presence
of third persons who neither stand in a position of peculiar
confidence to the client or are not agents of the attorney. If
the communications made by the client to his attorney w e r e
also made to third persons, the intention of secrecy does not
appear (McCormick on Evidence, 91). T h e r e can be no attor-
ney-client privilege where the information is given with the
expectation that it will be revealed to others (In re Grand Jury
Proceeding, 727 F.2d 1354 [4th Cir. 1984]). In the case of per-
sons overhearing without the knowledge of the client, it seems
that the more reasonable v i e w is one which would protect the
client against disclosure, unless he has failed to use ordinary
precautions against overhearing, but the cases in American
jurisprudence have permitted the eavesdropper to speak (Van
Horn v. Commonwealth, 239 Ky 833, 40S.W.2d 372).
TESTIMONIAL EVIDENCE 285
B Disqualifications of Witnesses

12. Does the privilege apply in suits between the attor-


ney and the client? T h e weight of authority supports the view
that when the client and attorney become embroiled in a con-
troversy between themselves, as in an action filed for payment
of attorney's fees or for damages against the negligence of the
attorney, the privilege is removed from the attorney's lips (So-
kol v. Mortimer, 81 ill. App.2d 225 N.E.2d 496 in McCormick,
91). This rule however, should be made to apply only where
the suit is between the attorney and his client. The communi-
cation would still be privileged where the suit is by or against
a third party (State v. Markey, 259 Wis. 527, 49 N.W. 2d 437
[1951]).

13. In relation to the attorney, the privilege is owned


by the client. It is he who can invoke the privilege. As a rule,
every communication arising from the professional relation-
ship cannot be disclosed without his consent. T h e privilege
is personal and belongs to the client. If the client waives the
privilege, no one else including the attorney can invoke it (In
Re Young's Estate, 33 Utah 382, 94 P 731, 732). For example,
if the client is asked on cross examination of his communi-
cations to his lawyer and reveals the same, there would be
a waiver of the confidentiality of the communication. There
would also be a waiver if the client does not object to his attor-
ney's testimony on the communication.

14. T h e protection of the privilege will generally sur-


vive the death of the client (Denver Tramway Co. v. Owens, 20
Colo., 107,36Pac. 848; State v. Macumber, 1121 Ariz. 569, 544
P.2d 1084 [1976]). There had been cases where the privilege
was not made to apply in cases involving the validity or inter-
pretation of the client's will. Where there is an attack on the
validity of the will, communications made to the attorney on
the drawing of the will, while confidential during the lifetime
of the client are not intended to require secrecy after his death
(8 Wigmore, Evidence, 2314 [MacNaughton rev. 1961]).

15. A lawyer is bound to comply with Canon 21 of the


Code of Professional Responsibility which states that "a law-
yer shall preserve the confidence and secrets of his client even
286 EVIDENCE
(The Bar Lectures Series)

after the attorney-client relation is terminated." The reason


for the prohibition is found in the relation of attorney and cli-
ent, which is one of trust and confidence of the highest degree.
A lawyer becomes familiar with all the facts connected with
his client's case. He learns from his client the weak points of
the action as well as the strong ones. Such knowledge must be
considered sacred and guarded with care (Samala u. Valencia,
512 SCRA 1; Mercado v. Vitriolo, 459 SCRA 1).
16. A brief but exhaustive discussion of the nature of
the relationship between attorney and client and the rule on
attorney-client privilege was made in Mercado v. Vitriolo, su-
pra).

"In engaging the services of an attorney, the client


reposes on him special powers of trust and confidence.
Their relationship is strictly personal and highly con-
fidential and fiduciary. The relation is of such delicate,
exacting and confidential nature that is required by ne-
cessity and public interest. Only by such confidentiality
and protection will a person be encouraged to repose his
confidence in an attorney. The hypothesis is that absti-
nence from seeking legal advice in a good cause is an evil
which is fatal to the administration of justice. Thus, the
preservation and protection of that relation will encour-
age a client to entrust his legal problems to an attorney,
which is of paramount importance to the administration
of justice. One rule adopted to serve this purpose is the at-
torney-client privilege: an attorney is to keep inviolate his
client's secrets or confidence and not to abuse them. Thus,
the duty of a lawyer to preserve his client's secrets and
confidence outlasts the termination of the attorney-client
relationship, and continues even after the client's death.
It is the glory of the legal profession that its fidelity to
its client can be depended on, and that a man may safely
go to a lawyer and converse with him upon his rights or
supposed rights in any litigation with absolute assurance
that the lawyer's tongue is tied from ever disclosing it.
With full disclosure of the facts of the case by the client to
his attorney, adequate legal representation will result in
the ascertainment and enforcement of rights or the pros-
ecution or defense of the client's cause.
TESTIMONIAL EVIDENCE 287
B Disqualifications of Witnesses

"Now, we go to the rule on attorney-client privilege.


Dean Wigmore cites the factors essential to establish the
existence of the privilege, viz:
(1) Where legal advice of any kind is sought, (2)
from a professional legal adviser in his capacity as such,
(3) the communications relating to that purpose, (4) made
in confidence, (5) by the client, (6) are at his instance per-
manently protected, (7) from disclosure by himself or by
the legal advisor, (8) except the protection be waived.
"In fine, the factors are as follows:
(1) There exists an attorney-client relationship,
or a prospective attorney-client relationship, and it is by
reason of this relationship that the client made the com-
munication.
"Matters disclosed by a prospective client to a law-
yer are protected by the rule on privileged communica-
tion even if the prospective client does not thereafter
retain the lawyer or the latter declines the employment.
The reason for this is to make the prospective client free
to discuss whatever he wishes with the lawyer without
fear that what he tells the lawyer will be divulged or used
against him, and for the lawyer to be equally free to ob-
tain information from the prospective client.
"On the other hand, a communication from a (pro-
spective) client to a lawyer for some purpose other than on
account of the (prospective) attorney-client relation is not
privileged. Instructive is the case of Pfleider v. Palanca,
35 SCRA 75, where the client and his wife leased to their
attorney a 1,328-hectare agricultural land for a period of
ten years. In their contract, the parties agreed, among
others, that a specified portion of the lease rentals would
be paid to the client-lessors, and the remainder would be
delivered by counsel-lessee to client's listed creditors. The
client alleged that the list of creditors which he had "confi-
dentially" supplied counsel for the purpose of carrying out
the terms of payment contained in the lease contract was
disclosed by counsel, in violation of their lawyer-client re-
lation, to parties whose interests are adverse to those of
the client. As the client himself, however, states, in the
execution of the terms of the aforesaid lease contract be-
288 EVIDENCE
(The Bar Lectures Series)

tween the parties, he furnished counsel with the "confi-


dential" list of his creditors. We ruled that this indicates
that client delivered the list of his creditors to counsel not
because of the professional relation then existing between
them, but on account of the lease agreement. We then
held that a violation of the confidence that accompanied
the delivery of that list would partake more of a private
and civil wrong than of a breach of the fidelity owing from
a lawyer to his client.
(2) The client made the communication in confi-
dence.
"The mere relation of attorney and client does not
raise a presumption of confidentiality. The client must in-
tend the communication to be confidential.
"A confidential communication refers to information
transmitted by voluntary act of disclosure between attor-
ney and client in confidence and by means which, so far as
the client is aware, discloses the information to no third
person other than one reasonably necessary for the trans-
mission of the information or the accomplishment of the
purpose for which it was given.
"Our jurisprudence on the matter rests on quies-
cent ground. Thus, a compromise agreement prepared
by a lawyer pursuant to the instruction of his client and
delivered to the opposing party, an offer and counter-of-
fer for settlement, or a document given by a client to his
counsel not in his professional capacity are not privileged
communications, the element of confidentiality not being
present.

(3) The legal advice must be sought from the at-


torney in his professional capacity. The communication
made by a client to his attorney must not be intended for
mere information, but for the purpose of seeking legal ad-
vice from his attorney as to his rights or obligations. The
communication must have been transmitted by a client to
his attorney for the purpose of seeking legal advice.
"If the client seeks an accounting service or business
or personal assistance, and not legal advice, the privilege
does not attach to a communication disclosed for such
purpose" (Mercado v. Vitriolo, 459 SCRA 1).
TESTIMONIAL EVIDENCE 289
B Disqualifications of Witnesses

B a r 2008
A tugboat owned by Speedy Port Service, Inc. (SPS)
sank in Manila Bay while helping tow another vessel,
drowning five (5) of the crew in the resulting shipwreck.
At the maritime board inquiry, the four (4) survivors tes-
tified. SPS engaged Atty. Ely to defend against potential
claims and to sue the company owning the other vessel
for damages to the tug. Ely obtained signed statements
from the survivors. He also interviewed other persons, in
some instances making memoranda. The heirs of the five
(5) victims filed an action for damages against SPS. Plain-
tiffs counsel sent written interrogatories to Ely, asking
whether statements of witnesses were obtained; if writ-
ten, copies were to be furnished; if oral, the exact provi-
sions were to be set forth in detail. Ely refused to comply,
arguing that the documents and information asked are
privileged communication. Is the contention tenable? Ex-
plain.

Suggested answer:
The contention is not tenable. The documents and
information sought to be disclosed are not privileged.
They are evidentiary matters which will eventually be
disclosed during the trial. What is privileged under Sec-
tion 24(b) of Rule 130, is (a) the communication made by
the client to the attorney, or (b) the advice given by the
attorney, in the course of, or with the view to professional
employment. The information sought is neither a commu-
nication by the client to the attorney nor is it an advice by
the attorney to his client.

Physician-Patient Privilege
1. The privileged communication between a physician
and his patient is stated as follows in Section 24 of Rule 130:

"Section 24. Disqualification by reason of privi-


leged communication. The following persons cannot
testify as to matters learned in confidence in the follow-
ing cases:
(a) xxx
290 EVIDENCE
(The Bar Lectures Series)

(b) xxx
(c) A person authorized to practice medicine,
surgery or obstetrics cannot in a civil case, without the
consent of the patient, be examined as to any advice or
treatment given by him or any information which he may
have acquired in attending such patient in a profession-
al capacity, which information was necessary to enable
him to act in that capacity, and which would blacken the
reputation of the patient; x x x"

2. This privilege, embodied in Section 24(c) of Rule 130


applies to a civil case, whether the patient is a party or not.
The phraseology of the rule implies that the privilege cannot
be claimed in a criminal case presumably because the interest
of the public in criminal prosecution should be deemed more
important than the secrecy of the communication.
3. The rationale traditionally mentioned to justify the
privilege is to encourage the patient to freely disclose all the
matters which may aid in the diagnosis in the treatment of a
disease or an injury. For this purpose it is necessary to shield
the patient from embarrassing details concerning his condi-
tion (Falkinburg v. Prudential Insurance Co., 132 Neb. 831,
273 N.W. 478). Accordingly, this privilege protects the inter-
est of the patient. It is designed to promote health, not truth.
It encourages free disclosure in the sickroom by preventing
disclosure in the courtroom. T h e patient is the person to be
encouraged and he is the holder of the privilege (Metropolitan
Life and Insurance Co. v. Kaufman, 104 Colo. 13, 87 P.2d 758
in McCormick, Evidence, 102).

4. The person against whom the privilege is claimed


is a person duly authorized to practice medicine, surgery or
obstetrics.

The information which cannot be disclosed refers to;


( a ) any advice given to the client;
( b ) any treatment given to the client; and
(c) any information acquired in attending such pa-
tient provided that the advice, treatment or information
TESTIMONIAL EVIDENCE 291
B Disqualifications of Witnesses

was made or acquired in a professional capacity and was


necessary to enable him to act in that capacity; and

( d ) that the information sought to be disclosed


would tend to blacken the reputation of the patient (Sec-
tion 24[c], Rule 130, Rules of Court). The word "reputa-
tion" is used instead of the previous word, "character."
5. Also, it is opined that the rule does not require that
the relationship between the physician and the patient be a
result of a contractual relationship. It could be the result of
a quasi-contractual relationship as when the patient is seri-
ously ill and the physician threats him even if he is not in a
condition to give his consent as in the situation described in
A r t . 2167 of the Civil Code of the Philippines.

6. It is necessary for the operation of the privilege that


the physician is acting in his "professional capacity" and that
the advice or treatment given or acquired in such capacity. The
physician may be said to be acting in a professional capacity
when he attends to the patient for either curative or preven-
tive treatment (Baird's Estate, 173 Cal., 617, 160 Pac, 1078;
Smart v. Kansas City, 208 Mo., 162, 105 S.W. 709). Hence, it
is submitted that results of autopsies may not be deemed cov-
ered by the privilege because autopsies are not intended for
treatment.

7. The privilege does not apply to shield the commission


of a crime or when the purpose is an unlawful one as to obtain
narcotics or prohibited drugs in violation of law because there
is no treatment involved. Similarly, where the purpose is to
ask a physician to have one's appearance disguised by cos-
metic or plastic surgery to escape apprehension, the privilege
does not apply. Common reason suggests that all these cases
be deemed outside the operation of the privilege because the
purpose is not for treatment or prevention of any disease or
injury.
8. The privilege survives the death of the patient
(Bassil v. Ford Motor Co., 278 Mich. 173, 270 N.W. 258, 107
A.L.R. 1491). Death does not permit the living to impair the
292 EVIDENCE
(The Bar Lectures Series)

deceased's name by disclosing communications held confiden-


tial by law (Westover v. Aetna Life Ins. Co., 99 N.Y., 69 Am
Rep. 1. Rep 769). Thus, in Gonzales v. Court of Appeals (298
SCRA 322), the Supreme Court, prevented the disclosure of
medical findings that would tend to blacken the reputation of
the patient even after his death.
9. The privilege may be waived by the patient. The
waiver may be made expressly or impliedly. The waiver may
be by a contract as in medical or life insurance. W h e n there
is disclosure by the patient of the information, there is neces-
sarily, a waiver. When the patient answers questions on cross
on matters which are supposedly privileged, the waiver also
exists.
There could also be a w a i v e r by operation of law or of the
rules. Under Rule 28 of the Rules of Court, the court in which
the action is pending may, in its discretion, order a party to
submit to a physical or mental examination. This happens
when the mental or physical condition of a party is in dispute.
The party examined may request a report of the examination.
By doing so, he waives any privilege he may have in that ac-
tion regarding the testimony of every other person who has
examined him in respect of the same examination (Section 4,
Rule 28, Rules of Court).

Bar 1998
C is the child of the spouses H and W. H sued his wife
for judicial declaration of nullity of marriage under Art.
36 of the Family Code. In the trial, the following testified
over the objection of W: C, H and D, a doctor of medicine
who used to treat W. Rule on Ws objection which are the
following:
(a) xxx
(b) xxx
(c) D cannot cannot testify against her because of
the doctrine of privileged communication.
TESTIMONIAL EVIDENCE 293
B Disqualifications of Witnesses

Suggested answer:
(a) xxx
(b) xxx
(c) D cannot testify over the objection of W where
the subject of the testimony is the advice or treatment
given by him or any information which he may have ac-
quired in attending to W in his professional capacity (Sec-
tion 24[c], Rule 130, Rules of Court).

Priest/Minister-Penitent Privilege
1. Another privileged communication under the Rules
is as follows:

"Section 24. Disqualification by reason of priv-


ileged communication. The following persons
cannot testify as to matters learned in confidence
in the following cases:
xxx
(d) A minister or priest cannot, without the
consent of the person making the confession, be
examined as to any confession made to or any ad-
vice given to him in his professional character in
the course of discipline enjoined by the church to
which the priest or minister or priest belongs;
xxx"

2. The person making the confession holds the privi-


lege and the priest or minister hearing the confession in his
professional capacity is prohibited from making a disclosure
of the confession without the consent of the person confess-
ing.
The privilege also extends not only to a confession made
by the penitent but also to any advice given by the minister or
priest. The confession and the advice must have been made or
given pursuant to the course of discipline of the denomination
or sect to which the minister or priest belongs (Section 24[d],
Rule 130, Rules of Court). Thus, the minister or priest must be
duly ordained or consecrated by his sect.
294 EVIDENCE
(The Bar Lectures Series)

3. Not every communication made to a minister or


priest is privileged. The communication must be made pur-
suant to confessions of sins (Wigmore on Evidence, 848). As
clearly provided in the rule, the advice given as a result of
the confession, must be made in the minister's "professional
character" (Section 24[d], Rule 130, Rules of Court) or in his
"spiritual" capacity. Accordingly, where the penitent discussed
business arrangements with the priest, the privilege does not
apply (U.S. v. Gordon, 493 F. Supp. 822 [7th Cir. 1987]).

Privileged Communications to Public Officers state secrets

1. As to privileged communications to public officers,


the relevant rule declares:

"Section 24. Disqualification by reason of privi-


leged communication. The following persons cannot
testify as to matters learned in confidence in the follow-
ing cases:
xxx
(e) A public officer cannot be examined during
his term of office or afterwards, as to communications
made to him in official confidence, when the court finds
that the public interest would suffer by the disclosure."

2. Under the above rule, communications made to a


public officer in official confidence are privileged when the
court finds that the disclosure would adversely affect the pub-
lic interest. It is the interest of the public that is sought to be
protected by the rule. Hence, the disclosure or non-disclosure
is not dependent on the will of the officer but on the determi-
nation by a competent court. T h e privilege may be invoked not
only during the term of office of the public officer but also after
(Section 24[e], Rule 130, Rules of Court).

3. National security matters and State secrets are of


course, confidential and a court will most likely uphold the
privilege. A society may not always be able to conduct its busi-
ness with total openness and matters affecting national inter-
TESTIMONIAL EVIDENCE 295
B Disqualifications of Witnesses

est must not be divulged (Guong v. U.S., 860 F.2d 1063 [Fed
Cir 1988]).

4. There is also authority supporting the theory that


protection must be given to protect the identity of individu-
als who provide information to the government. Effective law
enforcement often results from information provided by citi-
zens who do not wish to publicly involve themselves (U.S. v.
Straughter, 950 F.2d 1223 [6th Cir. 1991 ] ) .

Executive Privilege; Presidential Communications Privilege


1. The concept of "executive privilege" and its origins
were elucidated in sufficient detail in Senate of the Philippines
u. Ermita (488 SCRA 1). As defined in relation to its Ameri-
can origins, the privilege has been described as "the power of
the government to withhold information from the public, the
courts, and the Congress."

2. T h e doctrine of executive privilege found recognition


in the 1995 case of Almonte v. Vasquez (244 SCRA 286). Here
the Court acknowledged that there are certain types of infor-
mation which the government may withhold from the public
like military, diplomatic and national security secrets. Allud-
ing to foreign jurisprudence, it was ruled that the President
and those who assist him must be free to explore alternatives
in the process of shaping policies and making decisions and
to do so in a way many would be unwilling to express except
privately.
3. Chavez v. PCGG (299 SCRA 744), ruled that there
is a privilege against disclosure on certain matters involving
state secrets regarding the following;
(a) military;
(b) diplomatic; and,
(c) other national security matters.
Again, in Chavez v. Public Estates Authority (384 SCRA
152), it was similarly held that secrets involving military, dip-
lomatic and national security matters and information on in-
296 EVIDENCE
(The Bar Lectures Series)

vestigations of crimes by law enforcement agencies before the


prosecution of the accused were exempted from the right to
information. The right to information does not also extend to
presidential conversations, correspondences, and discussions
in closed-door cabinet meetings.
4. The 2006 case of Senate of the Philippines v. Ermita
(488 SCRA 1), cited by both the majority and dissenting opin-
ions in subsequent cases, illustrates how the Court resolved a
constitutional question on the extent of executive privilege in
relation to inquiries in aid of legislation.
The case of Ermita is the result of consolidated petitions
for certiorari and prohibition praying for a declaration of the
unconstitutionality of Executive Order 464 for having been is-
sued through a grave abuse of presidential powers.
At issue was the constitutionality of Executive Order 464
issued by the President of the Philippines for the purpose of
"Ensuring Observance of the Principle of Separation of P o w -
ers, Adherence to the Rule on Executive Privilege and Respect
for the Rights of Public Officials Appearing in Legislative In-
quiries in A i d of Legislation under the Constitution, and for
Other Purposes."
The questioned Executive Order was issued at the height
of Senate investigations on the N o r t h Rail Project and alle-
gations of fraud in the 2004 national elections involving the
controversial taped conversations between the President and
a former Comelec Commissioner.
Relying on Almonte v. Vasquez (244 SCRA 286), E . O . 464
stressed that "the rule on confidentiality based on executive
privilege is fundamental to the operation of government and
rooted in the separation of powers under the Constitution."
Section 2(a) of E.O 464 considered the executive privilege to
cover all confidential and classified information between the
President and the public officers enumerated in the executive
order, including:

( a ) Conversation and correspondence between the


President and the public official covered by the executive
order;
TESTIMONIAL EVIDENCE 297
B Disqualifications of Witnesses

( b ) Military, diplomatic and other national security


matters which in the interest of national security should
not be divulged;

(c) Information between inter-government agen-


cies prior to the conclusion of treaties and executive
agreements;

( d ) Discussions in closed-door cabinet meetings;


and
( e ) Matters affecting national security and public
order.

Section 2(b) proceeded by enumerating the following


public officers also covered by Executive Order 464:
( a ) Senior officials of executive departments who
in the judgment of department heads are covered by the
executive privilege;

( b ) General and flag officers of the A r m e d Forces of


the Philippines and such other officers who, in the judg-
ment of the Chief of Staff, are covered by the executive
privilege;
(c) Philippine National Police ( P N P ) officers with
rank of chief superintendent or higher and such other of-
ficers who, in the judgment of the Chief of the P N P , are
covered by the executive privilege;
( d ) Senior national security officials who in the
judgment of the National Security Adviser are covered
by the executive privilege; and
( e ) Such other officers as may be determined by the
President.
Section 3 of E.O. 464 required that all public officials
enumerated above shall have to secure prior consent of the
President prior to appearing before either House of Congress
to give effect to the purpose of the executive order.
Relying on E.O. 464 (with the exception of General Gu-
dani and Col. Balutan who were subsequently relieved from
298 EVIDENCE
(The Bar Lectures Series)

their military posts and were made to face court martial pro-
ceedings for defying the President's executive order),various
government officials failed to appear in Senate hearings.
The Court, in resolving the issues involved, gave recogni-
tion to the power of inquiry of congress in aid of legislation
in accordance with its duly published rules of procedure, de-
scribing such power as being broad enough to cover officials
of the executive branch and co-extensive with the power to
legislate. It held that the matters which may be a proper sub-
ject of legislation and of investigation are one and because the
operation of government could be a subject of legislation, it
could also be the subject of investigation. Since Congress has
the authority to inquire into the operations of the executive
branch, "it would be incongruous to hold that the power of
inquiry does not extend to executive officials who are the most
familiar with and informed on executive operations."

The Court also however, recognized that Presidential


communications fall under the protection of executive privi-
lege. While the Court upheld the doctrine of executive privi-
lege, it found the executive order partly constitutionally defec-
tive, specifically Sees. 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. T h e Court noted that E . O . 464
covers persons which is a misuse of the doctrine because the
privilege is to be properly invoked in relation to specific cat-
egories of information and not to categories of persons.

When Congress exercises its powers of judicial inquiry,


the department heads are not exempt by the mere fact that
they are department heads. Accordingly, only one executive
official may be exempted from the power of inquiry of Con-
gress the President upon whom executive power is vested
and is beyond the reach of congress except through the power
of impeachment.

The Court added that Section 1 of Executive Order 464


makes reference only to Section 22 of A r t . VI of the Consti-
tution, and in the absence of reference to inquiries in aid of
TESTIMONIAL EVIDENCE 299
B Disqualifications of Witnesses

legislation, must be construed as limited in its application to


appearances of department heads in the question hour which
is contemplated in Section 22. T h e requirement then to secure
presidential consent under Section 1 is limited only to appear-
ances in the question hour, and is valid on its face. Under Sec-
tion 22 of A r t . V I , the appearances of department heads in the
question hour is discretionary on their part.

Section 1 however, declared the Court, cannot be applied


to appearances of department heads in inquiries in aid of leg-
islation and Congress is not bound to respect the refusal of
the department heads in such inquiry, unless a valid claim of
privilege is subsequently made by the President herself or by
the Executive Secretary.

T h e letter of Secretary Ermita to the Senate which is to


be construed as an implied claim of the privilege, was unac-
companied as it is by any specific allegation of the basis of the
claim. In other words, if the executive branch wants to claim
the privilege, it must formally assert the same and state the
reasons for the claim. Certainly, according to the Court, "Con-
gress has the right to know why the executive considers the
requested information privileged." It does not suffice to mere-
ly declare that the President, or an authorized representative,
has determined that it is so. In the absence of a specific basis
for the claim, there is no w a y of determining whether it falls
under one of the traditional privileges or whether it should
be respected. Instead of providing precise and certain reasons
for the claim, Section 3 of E.O. 464 merely invokes the execu-
tive order coupled with a statement that the President has
not given her consent. This emphasized the Court, severely
frustrates the power of inquiry of congress. Thus, Section 3 of
E.O 464 in relation to Section 2(b) was declared also invalid
per se.

Postcript: On March 6, 2008, the President of the Philip-


pines issued Memorandum Circular 151 revoking Executive
Order 464. The Memorandum instructed all executive employ-
ees to abide by the Constitution, the laws and jurisprudence
including the case of Senate v. Ermita.
300 EVIDENCE
(The Bar Lectures Series)

5. The Constitution of the Philippines recognizes the


right of the people to information on matters of public concern
and guarantees access to official records, and to documents,
and papers pertaining to official acts, transactions, or deci-
sions, as well as to government research data used as basis
for policy development, subject to such limitations as may be
provided by law (Section 7, Article III [Bill of Rights], Consti-
tution of the Philippines).

What matters may be disclosed in relation to the right to


information on matters of public concern?
This was actually one of the issues sought to be resolved
in AKBAYAN v. Aquino (G.R. No. 170516, July 16,2008). The
petitioners in the case, a tapestry of various personalities like
citizens, taxpayers, congressmen including non-government
organizations, sought via a petition for mandamus and pro-
hibition to obtain from respondents in the persons of various
government functionaries, the full text of the Japan-Philip-
pines Economic Partnership A g r e e m e n t ( J P E P A ) , informa-
tion which the government previously refused to disclose. T h e
petitioners assert among others, that the refusal of the gov-
ernment to disclose the documents bearing on the J P E P A vio-
lates their right to information on matters of public concern,
and contravenes other constitutional provisions on transpar-
ency, such as the policy of full disclosure of all transactions
involving public interest. T h e y likewise posit that non-disclo-
sure of the documents undermines their right to effective and
reasonable participation in all levels of social, political and
economic decision-making.

Respondents do not dispute that the J P E P A as an inter-


national trade agreement is a matter of public concern but
they claim that a full disclosure of matters sought by the pe-
titioners would involve disclosure of diplomatic negotiations
which were then in progress. It is asserted by respondents
that diplomatic negotiations are covered by the doctrine of ex-
ecutive privilege, thus constituting an exception to the right
to information and the policy of full public disclosure.
TESTIMONIAL EVIDENCE 301
B Disqualifications of Witnesses

The petitioners on the other hand admit that diplomatic


negotiations are entitled to a reasonable amount of confiden-
tiality so as not to jeopardize the diplomatic process but are
confidential only at certain stages of the negotiating process
after which such information must be revealed to the public.
T h e duty to disclose allegedly arises when the negotiations
have moved from the formulation and exploratory stage to the
firming up of propositions or official recommendations.

In resolving the conflicting claims of the parties the Court


first affirmed what it termed "the well-established jurispru-
dence that neither the right to information nor the policy of
full disclosure is absolute, there being matters which, albeit
of matters of public concern or public interest, are recognized
as privileged in nature."
T h e Court reiterated what it held in previous cases that
the information on inter-government exchanges prior to the
conclusion of treaties and executive agreements may be sub-
ject to reasonable safeguards for the sake of national interest.
T h e Court then declared that by applying the principles it had
previously adopted, the Court held that while the final text of
the J P E P A may not be left perpetually confidential since there
is a need to discuss the same before it is approved, the offers
exchanged by the parties during the negotiations continue to
be privileged even after the J P E P A is published. Disclosing
these exchanges could impair the ability of the Philippines
to deal not only with Japan but with other foreign govern-
ments in future negotiations. Reminding the parties of what it
had declared in Chavez v. PCGG (384 SCRA 152), that while
the constitutional right to information includes official infor-
mation on on-going negotiations before a final contract, such
information does not cover recognized exceptions like privi-
leged information, military and diplomatic secrets and similar
matters affecting national interest. The matters falling under
these exceptions according to the Court, cannot be disclosed
even if they constitute definite propositions. Since diplomatic
negotiations enjoy a presumptive privilege against disclosure,
petitioners need to sufficiently show the existence of a public
interest sufficient to overcome the privilege. The court con-
302 EVIDENCE
(The Bar Lectures Series)

eluded with a finding that the petitioners have failed to pres-


ent a "sufficient showing of need" in their arguments.
The standard to be employed in determining whether
there is a sufficient interest in favor of disclosure is the strong
"sufficient showing of need" which must be shown whether
that party is Congress or a private citizen. The Court also held
that when the government has claimed executive privilege,
and it has established that the information is indeed covered
by the same, then the party demanding it, if it is to overcome
the privilege, must show that the information is vital, not sim-
ply for the satisfaction of its curiosity, but for its ability to
effectively and reasonably participate in social, political, and
economic decision-making.

Closely related to the "presidential communications"


privilege is the deliberative process privilege recognized in the
United States, which privilege covers documents reflecting
advisory opinions, recommendations and deliberations com-
prising part of a process by which governmental decisions and
policies are formulated, x x x [CJlearly, the privilege accorded
to diplomatic negotiations follows as a logical consequence
from the privileged character of the deliberative process (AK-
BAYAN v. Aquino, G.R. No. 170516, July 16, 2008).

6. An earlier case, Neri v. Senate Committees on Ac-


countability of Public Officers and Investigations (G.R. No.
180643, March 25,2008), similarly demonstrates the extent of
the right to information on matters alleged to be of public con-
cern. Romulo N e r i , the petitioner in this case, as then direc-
tor of the N E D A , was accordingly said to have discussed with
the President of the Philippines regarding the Z T E - N B N deal.
The petitioner, upon invitation of the respondents (Senate
Committee on Accountability of Public Officers and Investiga-
tions, Senate Committee on Trade and Commerce, and Senate
Committee on National Defense and Security), testified on the
Z T E - N B N contract and the bribe offers in connection with the
deal. When asked on the details of the matters he discussed
with the President after he divulged to the latter the bribe
offers, petitioner declined to disclose the details of their con-
TESTIMONIAL EVIDENCE 303
B Disqualifications of Witnesses

versation invoking the privileged nature of the conversation


on specifically the following matters:

( a ) W h e t h e r the President followed up the N B N


project;

( b ) W h e t h e r N e r i was dictated upon to follow up


the project; and

(c) W h e t h e r the President said to go ahead and ap-


prove the project after being told of the alleged bribe.

W h e n called for another hearing, petitioner then sent re-


grets to the Senate for his inability to appear in the next hear-
ing and through Secretary Ermita, requested the respondents
to dispense with the petitioner's testimony on the ground of
executive privilege. T h e respondents then asked petitioner to
explain why he should not be cited for contempt. Petitioner
explained his side and requested that he be furnished in ad-
vance with questionnaires should the respondents touch on
new matters aside from those already asked of him in a previ-
ous hearing conducted for eleven (11) straight hours. Without
responding to the petitioner's request and finding the petition-
er's explanation unsatisfactory, a contempt order was subse-
quently issued against the petitioner including an order for
his arrest and detention. Petitioner then assailed the orders
via a petition for certiorari with application for a temporary
restraining order in the Supreme Court after his motion to
reconsider the orders were denied.

The Court, in deciding the petition started with the


premise recognizing the power of Congress to conduct inqui-
ries in aid of legislation, a power which extends even to pub-
lic officials. The only way for them to be exempted from the
compulsory process of Congressional subpoena is through a
valid claim of executive privilege. The Court declared it was
convinced that the communications elicited by the three (3)
questions are covered by the presidential communication
privilege. Citing foreign precedents and rulings and previous
Supreme Court pronouncements, and specifically citing the
case of United States v. Nixon (418 U.S. 813), and drawing
304 EVIDENCE
(The Bar Lectures Series)

from Nixon, In Re Sealed Case and Judicial Watch, the Court


enumerated the following elements of "presidential communi-
cations privilege;"
( a ) The protected communications must relate to a
"quintessential and non-delegable presidential power."
(b) The communication must be authored or "solic-
ited and received" by a close advisor of the President or
the President himself. The judicial test is that an advisor
must be in "operational proximity" with the President;
and
(c) The presidential communications privilege
remains a qualified privilege that may be overcome by
a showing of adequate need, such that the information
sought "likely contains important evidence" and by the
unavailability of the information elsewhere by an appro-
priate investigating authority.

The Court then concluded that the communications be-


tween the petitioner and the President fall within the privi-
lege based on the following reasons:

"First, the communications relate to a "quintessen-


tial and non-delegable power" of the President, i.e., the
power to enter into an executive agreement with other
countries. This authority of the President to enter into
executive agreements without the concurrence of the Leg-
islature has traditionally been recognized in Philippine
jurisprudence, x x x
"Second, the communications are "received" by a
close advisor of the president. Under the "operational
proximity test" petitioner can be considered a close advi-
sor, being a member of President Arroyo's cabinet, x x x
"Third, there is no adequate showing of a compelling
need that would justify the limitation of the privilege and
of the unavailability of the information elsewhere by ap-
propriate investigating authority."

The respondent committees argued that a claim of execu-


tive privilege does not guard against a possible disclosure of
TESTIMONIAL EVIDENCE 305
B Disqualifications of Witnesses

wrongdoing. T h e Court did not contest the argument and fur-


ther declared that the need for evidence in a pending criminal
trial outweighs the President's generalized interest in confi-
dentiality. T h e argument was however, brushed aside by the
declaration that the present case does not involve a criminal
proceeding where the information sought would help in meet-
ing the demands of fair administration of criminal justice. The
Court in the same case likewise held that the right of Con-
gress or any of its committees to obtain information in aid of
legislation cannot be equated with the people's right to pub-
lic information. T h e former cannot claim that every legisla-
tive inquiry is an exercise of the people's right to information.
Hence, the members of Congress should not invoke as justifi-
cation a right properly belonging to the people.

T h e Neri case reiterated the rule that for the claim of ex-
ecutive privilege to be invoked, there must be a formal claim
of the privilege, lodged by the head of the department which
has control of the matter, and that a formal and proper claim
of the privilege requires a "precise and certain reason" for
preserving confidentiality, but Congress must not require the
executive to state the reasons for the claim with such par-
ticularity as to compel the disclosure of the information which
the privilege is meant to protect. This is a matter of respect
for a coordinate and co-equal department. It was ruled that
the letter of Secretary Ermita to the respondents satisfies the
requirement.
Chief Justice Puno's dissenting opinion is of profound le-
gal interest. In substance, the venerable Chief Justice opines
that there must be a "sufficient showing or demonstration of
specific need" for the withheld information on the part of the
branch of government seeking its disclosure.
"Two standards must be met to show the specific need;
one is evidentiary; the other is constitutional."

xxx
"In the case at bar, we cannot assess the validity of
the claim of the Executive Secretary that disclosure of
306 EVIDENCE
(The Bar Lectures Series)

the withheld information may impair our diplomatic rela-


tions with the People's Republic of China. There is but a
bare assertion in the letter of Secretary Ermita that the
"context in which executive privilege is invoked is that the
information sought to be disclosed might impair our dip-
lomatic as well as our economic relations with the People's
Republic of China." There is absolutely no explanation of-
fered by the Executive Secretary on how diplomatic se-
crets will be exposed at the expense of our national in-
terest if petitioner answers the three disputed questions
propounded by the respondent Senate committees. In the
Oral Argument x x x , petitioner Neri similarly failed to
explain how democratic secrets will be compromised if the
three disputed questions would reveal privileged demo-
cratic secrets. The Court cannot engage in guesswork in
resolving this important issue."

Privileged Communications under the Rules on Electronic


Evidence
Privileged communications apply even to electronic evi-
dence. Under Section 3, Rule 3 of the Rules on Electronic Evi-
dence, the confidential character of a privileged communica-
tion is not lost solely on the ground that it is in the form of an
electronic document.

Parental and Filial Privilege


1. T w o privileges are embodied in Section 25 of Rule
130, namely: ( a ) the parental privilege rule; and ( b ) the filial
privilege rule.

Under the parental privilege rule, a parent cannot be


compelled to testify against his child or direct descendants.
Under the filial privilege rule, a child may not be compelled to
testify against his parents or direct ascendants.
2. A person however, may testify against his parents or
children voluntarily but if he refuses to do so, the rule protects
him from any compulsion. Said rule applies to both criminal
and civil cases since the rule makes no distinction (Section 25,
Rule 130, Rules of Court). T h e rule states:
TESTIMONIAL EVIDENCE 307
B Disqualifications of Witnesses

"Section 25. Parental and filial privilege. No per-


son may be compelled to testify against his parents,
other direct ascendants, children or other direct de-
scendants."

3. In criminal cases, the Family Code of the Philippines,


lays down as a general rule, a policy substantially the same
as Section 25, Rule 130 of the Rules of Court. Under the
F a m i l y Code, no descendant shall be compelled, in a criminal
case, to testify against his parents and grandparents. T h e
Code however, specifically provides for an exception. The
descendant may be compelled to give his testimony in the
following instances:

( a ) when such testimony is indispensable in a crime


committed against said descendant, or
(b) in a crime committed by one parent against the
other (Art. 215, Family Code of the Philippines).
T h e relevant article provides:

"Art. 215. No descendant shall be compelled, in a


criminal case, to testify against his parents and grand-
parents, except when such testimony is indispensable
in a crime, against the descendant or by one parent
against the other."

Bar 1998
C is the child of the spouses H and W. H sued his wife
for judicial declaration of nullity of marriage under Art.
36 of the Family Code. In the trial, the following testified
over the objection of W: C, H and D, a doctor of medicine
who used to treat W. Rule on W's objection which are the
following:
(a) xxx
(b) C cannot testify against her because of the doc-
trine on parental privilege.
(c) xxx
308 EVIDENCE
(The Bar Lectures Series)

Suggested answer:
(a) xxx
(b) W cannot invoke the privilege which belongs to
the child. C may testify if he wants to although he may
not be compelled to do so (Section 25, Rule 130, Rules of
Court).

Other Privileged Communications Not Found in the Rules of


Court
1. Section 24 of Rule 130 deals with the types of dis-
qualifications by reason of privileged communication, to wit:
( a ) communication between husband and wife; ( b ) communica-
tion between attorney and client; (c) communication between
physician and patient; ( d ) communication between priest and
penitent; and ( e ) public officers and public interest.
2. There are, however, other privileged matters that
are not mentioned by Rule 130. A m o n g them are the follow-
ing: ( a ) editors may not be compelled to disclose the source of
published news; (b) voters may not be compelled to disclose for
whom they voted; (c) trade secrets; ( d ) information contained
in tax census returns; and ( d ) bank deposits (Air Philippines
v. Pennswell, Inc., G.R. No. 172835, December 13, 2007).

Under A r t . 233 of the Labor Code of the Philippines, infor-


mation and statements made at conciliation proceedings shall
be treated as confidential. Under Section 6 of R . A . N o . 9194
amending Section 9 of R . A . N o . 9160 (Anti-Money Laundering
Act of 2001), institutions covered by the l a w and its officers
and employees who communicate a suspicious transaction to
the Anti-Money Laundering Council, are barred from disclos-
ing the fact of such report to other persons.

C E x a m i n a t i o n of W i t n e s s e s

Open Court Examination

1. Section 1 of Rule 132 provides for the examination


of the witness in open court and unless the question calls for a
TESTIMONIAL EVIDENCE 309
C Examination of Witnesses

different mode, the answer of the witness shall be given orally.


This method allows the court the opportunity to observe the
demeanor of the witness and also allows the adverse party to
cross-examine the witness.

2. There are however, testimonies which need not be


given in open court. U n d e r the Rules of Summary Procedure,
the affidavits of the parties shall constitute the direct testi-
monies of the witnesses who executed the same (Section 15,
Rule on Summary Procedure). In civil cases, the parties are
merely required to submit the affidavits of their witnesses
and other pieces of evidence on the factual issues, together
with their position papers, setting forth the law and the facts
relied upon (Section 9, Rule on Summary Procedure). Like-
wise, depositions need not be taken in open court. They may
be taken before a notary public (Section 10, Rule 23) or before
any person authorized to administer oaths (Section 14, Rule
23). In a criminal case, either party may utilize the testimony
of a witness who is deceased, out of the country, or one who
is unavailable or unable to testify despite the exercise of due
diligence, even if the testimony was one used in another case
or proceeding, judicial or administrative, provided the said
proceeding involved the same parties and subject matter and
the adverse party had the opportunity to cross-examine the
witness (Section l[f], Rule 115, Rules of Court).

Oath or Affirmation
1. The witness must take either an oath or an affirma-
tion but the option to take an oath or an affirmation (Section
1, Rule 132, Rules of Court) is given to the witness and not to
the court.
2. An oath is an outward pledge made under an imme-
diate sense of responsibility to God or a solemn appeal to the
Supreme Being in attestation of the truth of some statement
(Black's Law Dictionary, 5th Ed., 966). An affirmation is a
substitute for an oath and is a solemn and formal declaration
that the witness will tell the truth (Ibid., 55).
310 EVIDENCE
(The Bar Lectures Series)

3. Where the witness refuses to take an oath or give


any affirmation, the testimony may be barred (U.S. v. Fowler,
605F.2d 181 [5th Cir. 1979]).
4. The rule requiring an oath or an affirmation is satis-
fied when the court takes pains to impress on the witness the
need to testify truthfully and the witness said he would (U.S.
v. Salim, 855 F.2d 944 [2nd Cir. 1988]). No special wording is
necessary for an affirmation, provided that the language used
is designed to impress upon the individual the duty to tell the
truth (U.S. v. Kalaydjian, 784 F.2d 53 [2d Cir. 1986]). It may
be an abuse of the court's discretion to require the use of the
words "swear" or "affirm" in the oath if the language would
violate the witness's religious beliefs where the witness could
otherwise testify truthfully (Gordon v. State of Idaho, 778 F.2d
1397 [4th Cir. 1969]). It is an abuse of discretion to refuse to
allow the accused to testify pursuant to an oath which he had
drafted by which he swore to testify honestly (U.S. v. Ward,
989 F.2d 1015 [9th Cir, 1992]).

Examination of Witnesses and Record of Proceedings


1. The examination of witnesses presented in a trial or
hearing shall be done in open court and under oath or affirma-
tion. The answers of the witness shall be given orally except
if: ( a ) the witness is incapacitated to speak, or ( b ) the question
calls for a different mode of answer (Section 1, Rule 132, Rules
of Court).

Bar 1978
After the accused himself had testified in his defense
in a murder case, the trial judge, over the objection of the
fiscal, allowed the defense counsel to file and merely sub-
mit the affidavits of the other witnesses of the accused
in lieu of their direct testimony but subject still to cross-
examination by the prosecution. The fiscal thus filed with
the Supreme Court a petition for certiorari and prohibi-
tion to nullify the order of the trial court judge allowing
such a procedure.
Should said petition be granted?
TESTIMONIAL EVIDENCE 311
C Examination of Witnesses

Suggested answer:
The petition should be granted. The provisions of
the Rules of Court require that the examination of the
witnesses shall be done in open court and their answers
be given orally, not in writing unless the exceptions men-
tioned therein apply, to wit: (a) the witness is incapacitat-
ed to speak, or (b) the questions calls for a different mode
of answer (Section 1, Rule 132, Rules of Court). None of
the exceptions apply to the case under consideration. The
court therefore, acted in excess of jurisdiction amounting
to lack of jurisdiction when it allowed the presentation
of the affidavits without an oral examination of the wit-
ness.

2. T h e questions propounded to a witness and his an-


swers thereto shall be recorded. Also to be recorded are the
statements made by the judge, any of the parties or any of the
counsels. In fact, the entire proceedings of the trial or hearing
must be recorded. T h e recording may be by shorthand, steno-
type or any means of recording found suitable by the court
(Section 2, Rule 132, Rules of Court).

3. T h e official stenographer, stenotypist or recorder


shall make a transcript of the record of the proceedings and
shall be certified by him as correct. The transcript so prepared
and certified shall be deemed prima facie a correct statement
of such proceedings (Section 2, Rule 132, Rules of Court).

Rights and Obligations of a Witness


1. As a rule, a witness has an obligation to answer
questions, although his answer may tend to establish a claim
against him (Section 3, Rule 132, Rules of Court). Of course,
there are questions which he is not bound to answer. This
is because a witness has certain rights like: ( a ) Not to give
an answer that will tend to subject him to a penalty for an
offense; (b) To be protected from irrelevant, improper, or in-
sulting questions, and from harsh or insulting demeanor; (c)
N o t to be examined except only as to matters pertinent to the
issue; (d) N o t to be detained longer than the interest of justice
312 EVIDENCE
(The Bar Lectures Series)

requires; and ( e ) N o t to give an answer which will tend to de-


grade his reputation, unless it be the very fact at issue or to a
fact from which the fact in issue would be presumed (Section
3, Rule 132, Rules of Court).
2. Foremost among the rights of a witness is the right
not to give an answer that will subject him to a penalty, un-
less otherwise provided by law (Section 3[4], Rule 132, Rules
of Court). This provision in the Rules of Court gives meaning
to the right of a person against self-incrimination (Art. Ill, Sec
17, Constitution of the Philippines).
Note however, that under Republic Act N o . 6981 (Wit-
ness Protection, Security and Benefit A c t ) , a witness admitted
into the witness protection program cannot refuse to testify or
give evidence or produce books, documents, records or writ-
ings necessary for the prosecution of the offense or offenses for
which he has been admitted on the ground of the right against
self-incrimination (Section 14, RA. 6981).

Bar 2005
" x x x Under Republic Act No. 8353, one may be
charged with and found guilty of qualified rape if he knew
on or before the commission of the crime that he is af-
flicted with Human Immuno Deficiency Virus (HRO/Ac-
quired Immune Deficiency Syndrome (AIDS) or any other
sexually transmissible disease and the virus or disease is
transmitted to the victim.

Under Section 17(a) of Republic Act No. 8504, the


court may compel the accused to submit himself to a blood
test where blood samples would be extracted from his
veins to determine whether he has HrV.
(a) Are the rights of the accused to be presumed
innocent of the crime charged, to privacy, and against
self-incrimination violated by such compulsory testing?
Explain.
(c) xxx
TESTIMONIAL EVIDENCE 313
C Examination of Witnesses

Suggested answer:
The rights of the accused are not violated by such
testings. This is a settled rule. There is no testimonial
compulsion involved by extracting blood from the accused
for testing purposes (Tijing v. Court of Appeals, 354 SCRA
17). There is hence, no violation of the right to privacy
and the right to be presumed innocent.

B a r 2004
At the scene of a heinous crime, police recovered a
man's shorts with blood stains and strands of hair. Shortly
afterwards, a warrant was issued and police arrested the
suspect, A A . During his detention, a medical technician
extracted blood sample from his finger and cut a strand
from his hair, despite AA's objections.
During AA's trial for rape and murder, the prosecu-
tion sought to introduce D N A evidence against A A , based
on forensic matching of the materials found at the crime
scene and AA's hair and blood samples. AA's counsel ob-
jected, claiming that D N A evidence is inadmissible be-
cause the materials taken from AA were in violation of
his constitutional right against self-incrimination as well
as his right of privacy and personal integrity.
Should the D N A evidence be admitted or not?

Suggested answer:
The D N A evidence should be admitted. The right
against self-incrimination applies only to testimonial evi-
dence. Extracting blood samples and cutting strands of
hair do not involve testimonial compulsion but purely me-
chanical acts which neither requires discretion or reason-
ing (Tijing v. Court of Appeals, 354 SCRA 17).

Bar 1998
A was accused of having raped X. Rule on the admis-
sibility of the following pieces of evidence:
(1) xxx
314 EVIDENCE
(The Bar Lectures Series)

(2) a pair of short pants allegedly left by A at the


crime which the court, over the objection of A, required
him to put on, and when he did, it fit him well.

Suggested answer:
The pair of short pants may be considered as circum-
stantial evidence when taken with other circumstances.
No valid objection may be interposed over the order of the
court to put on the pair of pants. The right against self-in-
crimination does not apply to a physical and mechanical
act. It applies only to testimonial compulsion which is not
the case under the facts.

3. Aside from the right against self-incrimination, a


witness likewise has the right against being degraded. This
refers to his right not to give an answer that will degrade him.
However, even if the answer is degrading to his reputation, he
must answer the question if the degrading answer: ( a ) is the
very fact in issue; or (b) refers to a fact from which the fact
in issue would be presumed (Section 3[5], Rule 132, Rules of
Court).

But a witness must answer to the fact of his previous


final conviction for an offense (Ibid.).
If the witness is the accused, he may totally refuse to
take the stand. A mere witness cannot altogether refuse to
take the stand. Before he refuses to answer, he must wait for
the incriminating question (Bagadiong v. Gonzales, 94 SCRA
906).

4. Counsel must always come to the aid of his wit-


ness being subjected to intimidation, harassment and embar-
rassment. Such acts are objectionable and a timely objection
should be raised.

Examination of a Child Witness


1. The examination of a child witness presented in a
hearing or any proceeding shall be done in open court. T h e
answer of the witness shall be given orally, unless the witness
TESTIMONIAL EVIDENCE 315
C Examination of Witnesses

is incapacitated to speak, or the question calls for a different


mode of answer (Section 8, Rule on Examination of A Child
Witness).

T h e examination in this provision does not refer to the


competency examination of the child pursuant to Section 6
of the same rule, but to a situation where the child is already
testifying in court. Under Section 6(c), only specified persons
are allowed to attend the competency examination of the child
and is obviously not an open court examination.

W h e n the child is testifying, the court may exclude the


public and persons who do not have a direct interest in the
case, including members of the press. The order shall be made
if the court determines on the record that to testify in open
court would cause psychological harm to him, hinder the ascer-
tainment of truth, or result in his inability to effectively com-
municate due to embarrassment, fear or timidity. The court
may also 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 (Section
23, ibid.).
The court may also order that persons attending the trial
shall not enter or leave the courtroom during the testimony of
the child (Section 24, ibid.).
2. W h e n a child does not understand the English or Fil-
ipino language or is unable to communicate in said languages
due to his developmental level, fear, shyness, disability, or
other similar reason, an interpreter whom the child can un-
derstand and who can understand the child may be appointed
by the court, motu proprio or upon motion, to interpret for the
child (Section 9[a], ibid.). Being another witness in the same
case or a member of the family of the child is not in itself a
disqualification. Such a person may be an interpreter if he is
the only one who can serve as interpreter. If the interpreter is
also a witness, he shall testify ahead of the child (Section 9[b],
ibid.).
316 EVIDENCE
(The Bar Lectures Series)

3. If the court determines that the child is unable to un-


derstand or respond to questions asked, the court may, motu
proprio or upon motion, appoint a facilitator. The facilitator
may be a child psychologist, psychiatrist, social worker, guid-
ance counselor, teacher, religious leader, parent, or relative
(Section 10, ibid.).
4. A child testifying at a judicial proceeding or making
a deposition shall have the right to be accompanied by two or
more persons of his own choosing to provide him emotional
support. Said support persons shall remain within the view
of the child during his testimony. One of the support persons
may even accompany the child to the witness stand and the
court may also allow the support person to hold the hands of
the child or to take other appropriate steps to provide emo-
tional support to the child in the course of the proceedings but
the court shall instruct the support persons not to prompt,
sway, or influence the child during his testimony (Section 11,
ibid.).
The support person may be another witness but the court
shall disqualify him if it could be sufficiently established that
the attendance of such support person pose a substantial risk
of influencing or affecting the content of the testimony of the
child. If the support person who is also a witness is allowed by
the court, he shall testify ahead of the child (Section ll[b][c],
ibid.).

5. An application for the child may be made for the tes-


timony of the child to be taken in a room outside the courtroom
and to be televised to the courtroom by live-link television.
The application may be made by the prosecutor, counsel or
guardian ad litem at least five ( 5 ) days before the trial date.

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 pres-
ence of the accused, his counsel or the prosecutor as the case
may be. The trauma should be of a kind which would impair
the completeness or truthfulness of the testimony of the child
(Section 25[ff, ibid.; Bar 2006).
TESTIMONIAL EVIDENCE 317
C Examination of Witnesses

If the child is testifying by live-link television and it is


necessary to identify the accused at trial, the court may al-
low the child to enter the courtroom for the limited purpose
of identifying the accused, or the court may allow the child to
identify the accused by observing his image of the latter on a
television monitor (Section 25[g][3], ibid.).

6. T h e testimony of the child shall be preserved on vid-


eotape, digital disc, or other similar devices which shall be
made part of the court record and shall be subject to a protec-
tive order (Section 25[h], ibid.).

7. To shield the child from the accused, the court may


allow the child to testify in such a manner that the child can-
not see the accused by testifying through one-way mirrors,
and other devices (Section 26, ibid.).
8. Reports regarding a child shall be confidential and
kept under seal. Except upon written request and order of the
court, a record shall only be released to the following:
(1) Members of the court staff for administrative
use;
( 2 ) T h e prosecuting attorney;
( 3 ) Defense counsel;
(4) T h e guardian ad litem;
(5) Agents of investigating law enforcement agen-
cies; and
(6) Other persons as determined by the court (Sec-
tion 31, ibid.).
9. 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 im-
mediate member family of the child shall be liable to the con-
tempt power of the court (Section 31[d], ibid.).
10. Where a youthful offender has been charged before
any city or provincial prosecutor or before any municipal judge
318 EVIDENCE
(The Bar Lectures Series)

and the charges have been dropped, all the records of the case
shall be considered as privileged and may not be disclosed di-
rectly or indirectly to anyone for any purpose whatsoever. If
he is charged and acquitted or the case is dismissed, the re-
cords are also privileged as a rule (Section 31[g], ibid.).
11. The youthful offender who fails to acknowledge the
case against him or to recite any fact related thereto in re-
sponse to any inquiry made to him for any purpose, shall not
be held under any provision of law to be guilty of perjury or of
concealment or misrepresentation (Section 31[g], ibid.).

Kinds of Examinations
1. Direct examination This is the examination-in-
chief of a witness by the party presenting him on the facts
relevant to the issue (Section 5, Rule 132, Rules of Court). It is
actually a procedure for obtaining information from one's own
witness in an orderly fashion. It is information which counsel
wants the court to hear. The purpose is to elicit facts about the
client's cause of action or defense.

2. Cross-examination This is the examination of the


witness by the adverse party after said witness has given his
testimony on direct examination. As a rule, the scope of the
cross-examination is not confined to the matters stated by the
witness in the direct examination. Thus, under the Rules of
Court, an objection that the question in the cross-examina-
tion is on a matter not touched upon by the witness in his
testimony will seldom be sustained provided the question cov-
ers matters allowed to be asked by w a y of cross-examination.
This is because the rule allows questions designed to test the
accuracy and truthfulness of the witness, his freedom from in-
terest and bias, or the reverse, and to elicit all important facts
bearing upon the issue (Section 6, ibid.).

Although Section 6 of Rule 132 allows the cross-examiner


a wide latitude in asking his questions, this provision mere-
ly states a general rule. Where the witness is an unwilling
or a hostile witness as so declared by the court, he may be
cross-examined only as to the subject matter of his examina-
TESTIMONIAL EVIDENCE 319
C Examination of Witnesses

tion-in-chief (Section 12, ibid.). T h e same limited scope of a


cross-examination is imposed upon the cross examiner where
the witness examined is an accused because he is subject to
cross-examination on matters covered by the direct examina-
tion (Section l[d], Rule 115, Rules of Court).

Cross-examination has two basic purposes, namely: ( a )


To bring out facts favorable to counsel's client not established
by the direct testimony (Jackson v. Feather River Water Co.,
1859 14 C 18); and (b) To enable counsel to impeach or to im-
pair the credibility of the witness (Kelly v. Bailey 1961 189
CA2d 728,11 CR 448).

3. Re-direct examination This examination is con-


ducted after the cross examination of the witness. The party
who called the witness on direct examination may re-examine
the same witness to explain or supplement his answers given
during the cross-examination. It is the examination of a wit-
ness by the counsel who conducted the direct examination af-
ter the cross-examination. In redirect examination the counsel
may elicit testimony to correct or repel any wrong impression
or inferences that may have been created in the cross-exami-
nation. It may also be an opportunity to rehabilitate a wit-
ness whose credibility has been damaged. In its discretion,
the court may even allow questions on matters not touched in
the cross-examination (Section 7, Rule 132, Rules of Court).

4. Re-cross examination This is the examination


conducted upon the conclusion of the re-direct examination.
Here the adverse party may question the witness on matters
stated in his re-direct examination (Section 8, ibid.).

Death or Absence of a Witness


1. If the witness dies before his cross-examination is
over, his testimony on the direct may be stricken out only with
respect to the testimony not covered by the cross-examination.
The absence of the witness is not enough to warrant striking
out his testimony for failure to appear for further cross-ex-
amination where the witness has already been sufficiently
320 EVIDENCE
(The Bar Lectures Series)

cross-examined, and the matter on which cross-examination


is sought is not in controversy (People v. Seneris, 99 SCRA
92).
2. If the witness was not cross-examined because of
causes attributable to the cross-examining party and the wit-
ness had always made himself available for cross-examina-
tion, the direct testimony of the witness shall remain in the
record and cannot be ordered stricken off because the cross-
examiner is deemed to have waived the right to cross-examine
the witness (De la Paz v. Intermediate Appellate Court, 154
SCRA 65).

Recalling a Witness
If a witness has been examined by both sides, the witness
cannot be recalled without leave of court. Recalling a witness
is a matter of judicial discretion. In the exercise of its discre-
tion, the court shall be guided by the interests of justice (Sec-
tion 9, Rule 132, Rules of Court).

Leading Questions
1. A leading question is one that is framed in such a
way that the question indicates to the witness the answer de-
sired by the party asking the question. In the words of Section
10 of Rule 132, it is a question "which suggests to the witness
the answer which the examining party desires."
2. Leading questions are not appropriate in direct and
re-direct examinations particularly when the witness is asked
to testify about a major element of the cause of action or de-
fense. Leading questions are allowed in cross and re-cross ex-
aminations. In fact, leading questions are the types of ques-
tions that should be employed in a cross-examination. Such
questions enable the counsel to get the witness to agree with
his client's version of the facts. Most lawyers will agree that
a "why" question should not be asked in cross-examination.
This kind of question allows a witness to explain his or her po-
sition, emphasize key points of harmful testimony and control
TESTIMONIAL EVIDENCE 321
C Examination of Witnesses

the pace and scope of the examination. It invites the witness


to deliver an unwanted "lecture" in the courtroom. Short and
leading questions will help control the witness.

3. Leading questions are however, allowed in a direct


examination in the following instances: ( a ) on preliminary
matters; (b) when the witness is ignorant, or a child offender
years, or is feeble-minded or a deaf-mute and there is diffi-
culty in getting direct and intelligible answers from such wit-
ness; (c) when the witness is a hostile witness; or (d) when
the witness is an adverse party, or when the witness is an
officer, director, managing agent of a corporation, partnership
or association which is an adverse party (Section 10, Rule 132,
Rules of Court).

Leading Questions to a Child Witness


As to a child witness, Section 10, Rule 132 of the Rules
of Court should be deemed modified by Section 20 of the Rule
on Examination of a Child Witness. Under the latter rule, the
court may allow leading questions in all stages of examination
of a child under the condition that the same will further the
interest of justice. Under the Rules of Court, a leading ques-
tion may be asked of a child only if there is difficulty of elicit-
ing from said child a direct and intelligible answer (Section
10[c], Rule 132, Rules of Court).

Illustrations
The following examples of leading questions in a direct
examination may be illuminating:

Illustration No. 1
The case is a collection case. The defendant contends that
the debt has been paid. He calls a witness to testify to the fact
of payment.
Q: While the plaintiff and the defendant were engaged
in a conversation on the date and time you men-
tioned, did you see the defendant deliver fifty thou-
sand pesos to the plaintiff?
322 EVIDENCE
(The Bar Lectures Series)

The question is objectionable on the ground that it is lead-


ing. Here the examiner obviously wants the witness to direct-
ly testify that money was delivered by the defendant to the
plaintiff in his presence. The question could have been properly
framed in this manner: "What have you observed if any, while
the plaintiff and the defendant were engaged in a conversa-
tion?"

Illustration N o . 2
The fact situation is a robbery case. The accused claims
innocence and that a couple of hours after the alleged robbery,
he is arrested by the police while in the park with his children.
The defense counsel calls the accused to the stand.
Q: What were you doing in the park?
A: I was taking a stroll with my two adolescent chil-
dren.
Q: While you were in the park with your children, the
police officers arrived to arrest you, is that true?
The question is leading. It suggests the next event which
the witness should testify to. The attorney could convert the
question into a non-leading one by taking the suggestive ele-
ment out of the question. Thus, "What happened if any, while
you and your children were at the park?"

Misleading Questions
1. A misleading question 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 (Section 10,
Rule 132, Rules of Court) in any type of examination.
2. Consider this illustration:

Counsel: "You testified that you and the accused


were in a car bound for Baguio City. How fast were you
driving?"

This question is objectionable as misleading where there


was no previous testimony from the witness that he was driv-
ing the car. The question assumes a fact not yet in evidence.
TESTIMONIAL EVIDENCE 323
D Impeachment of a Witness

D I m p e a c h m e n t of a W i t n e s s

1. Impeachment is basically a technique employed


usually as part of the cross-examination to discredit a witness
by attacking his credibility. Destroying credibility is vital be-
cause it is linked with a witness' ability and willingness to tell
the truth.

2. T h e rules enumerate certain guideposts in impeach-


ing a witness:

( a ) T h e impeachment of a witness is to be done by


the party against whom the witness is called (Section 11,
Rule 132, Rules of Court).

(b) Subject to certain exceptions, the party produc-


ing the witness is barred from impeaching his own wit-
ness (Section 12, ibid.). Thus, if D calls W as his witness,
D is not allowed to impeach the credibility of W. It is the
adverse party, P against whom W was called, who is ac-
corded the privilege of impeaching W.

(c) By w a y of exception to the immediately preced-


ing rule, if the witness is unwilling or hostile, the party
calling him may be allowed by the court to impeach the
witness. But it is not for the party calling the witness to
make a determination that the witness is unwilling or
hostile. Whether or not a witness is hostile, is addressed
to judicial evaluation and the declaration shall be made
only if the court is satisfied that the witness possesses
an interest adverse to the party calling him or there is
adequate showing that the reluctance of the witness is
unjustified or that he misled the party into calling him
as a witness (Section 12, ibid.). A party may be also be
allowed to impeach his own witness when said witness
is an adverse party or is an officer, director, or managing
agent of a corporation, partnership or association which
is an adverse party (Section 12, ibid.).

(d) It is improper for the party calling the witness to


present evidence of the good character of his own witness.
324 EVIDENCE
(The Bar Lectures Series)

The same is allowed only if the character of the witness


has been impeached (Section 14, ibid.). Thus, evidence of
the good character of the witness is allowed only to rebut
the evidence offered to impeach the witness's character.
If he has been impeached, then he can be rehabilitated by
evidence of his good character.

How to Impeach a Witness


1. Section 11 of Rule 132 specifies the manner of im-
peaching the witness of the adverse party. It declares:

"Section 11. Impeachment of adverse party's wit-


ness. A witness may be impeached by the party
against whom he was called, by contradictory evidence,
by evidence that his general reputation for truth, hon-
esty, or integrity is bad, or by evidence that he has made
at other times statements inconsistent with his present
testimony, but not by evidence of particular wrongful
acts, except that it may be shown by the examination of
the witness, or the record of the judgment, that he has
been convicted of an offense."

2. Under the above rule, a witness may be impeached


through the following modes:

( a ) By contradictory evidence;
(b) By evidence that his general reputation for
truth, honesty and integrity is bad; or

(c) By evidence that he has made at other times


statements inconsistent with his present testimony (Sec-
tion 11, Rule 132, Rules of Court).

3. A witness cannot be impeached by evidence of par-


ticular wrongful acts except evidence of his final conviction of
an offense as disclosed by his examination or by the record of
the judgment (Section 11, ibid.). Thus, the witness cannot be
impeached by enumerating in court specific wrongful acts he
had committed.
TESTIMONIAL EVIDENCE 325
D Impeachment of a Witness

4. An unwilling or hostile witness so declared by the


court or the witness who is an adverse party cannot be im-
peached by evidence of his bad character (Section 12, ibid.).

Impeachment by Contradictory Evidence


1. E v e r y ethical trial lawyer will tell us that one basic
rule in impeaching a witness by contradictory evidence is the
observance of fairness. Fairness demands that the impeach-
ing matter be raised in the cross-examination of the witness
sought to be impeached by allowing him to admit or deny a
matter to be used as the basis for impeachment by contradic-
tory evidence. N o r m a l l y the basis of this mode of impeach-
ment is a declaration made by the witness in his direct testi-
mony. T h e cross-examiner's intention is to show to the court
that there w e r e allegations made by the witness that do not
correspond to the real facts of the case.
This mode of impeachment may also be used to contradict
conclusions made by expert witnesses during their testimo-
nies. Usually the adverse party may also call another expert
to testify to a contrary conclusion.

Illustration
Witness A testifies on direct that he was barely five me-
ters away from where the accused D fired a shot at the victim,
V. The defense counsel has reliable information that at the
time the shooting took place, Witness A was standing as a wit-
ness in a wedding of his friend, Witness B in a place a hundred
miles away. The defense counsel now asks:
Q: You testified that you were present when D shot V,
is that right?
A: Perfectly right, Sir!
Q. Isn't it true that at the time of the alleged shooting
of V by D, you were in a wedding of your friend miles
and miles away?
A: That isn't true. Sir. Absolutely not.
326 EVIDENCE
(The Bar Lectures Series)

Because Witness A denied his being in a friend's wedding


at the time of the incident, the defense counsel now has the
chance to prove the contrary by a contradictory evidence. He
can do so by calling Witness B or any other witness to testify
on the whereabouts of Witness B on the relevant date and
time. An expert witness may likewise be contradicted by pre-
senting another expert with contrary opinions.

Impeachment by Prior Inconsistent Statements


1. Prior inconsistent statements are statements made
by a witness on an earlier occasion which contradict the state-
ments he makes during the trial. In the words of Section 13
of Rule 132, they are "statements that he has made at other
times inconsistent with his present testimony." These state-
ments are admissible to impeach the credibility of the witness
making them. Impeachment by a prior inconsistent statement
is the most commonly used method because of its simplicity
and the impact it makes when properly used. T h e relevant
rule provides:

"Section 13. How witness impeached by evidence


of inconsistent statements. Before a witness can be
impeached by evidence that he has made at other times
statements inconsistent with his present testimony, the
statements must be related to him, with the circumstanc-
es of the times and places and the persons present, and
he must be asked whether he made such statements,
and if so, allowed to explain them. If the statements be
in writing they must be shown to the witness before any
question is put to him concerning them."

2. Effectively impeaching a witness by prior inconsis-


tent statements requires laying the proper foundation for the
impeachment. Laying the foundation, commonly referred to
as "laying the predicate" is a preliminary requirement before
the impeachment process prospers. T h e elements of this foun-
dation are clearly spelled out in Section 13 of Rule 132. These
are:
TESTIMONIAL EVIDENCE 327
D Impeachment of a Witness

( a ) T h e 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 be shown to him;

( b ) He must be asked whether he made such state-


ments and also to explain them if he admits making those
statements.

3. The mere presentation of the prior declarations of


the witness without the same having been read to him while
testifying in court is insufficient for the desired impeachment
of his testimony if he was not given the ample opportunity to
explain the supposed discrepancy. This rule is founded not
only upon common sense but is essential to protect the char-
acter of the witness (People v. De Guzman, 288 SCRA 346,
354).

4. To achieve a dramatic effect, the first step in setting


up the prior inconsistent statement would actually be to ask
the witness to repeat or reaffirm his most recent statement.
The second step would be to relate to the witness his prior
inconsistent statement and at the same time "building up" or
highlighting the contradictory utterance by relating to the wit-
ness the circumstances of time, persons and place. Then the
witness is asked whether or not, the statements were made
(Section 13, Rule 132, Rules of Court).
The underlying purpose for laying the predicate is to al-
low the witness to admit or deny the prior statement and af-
ford him an opportunity to explain the same. Non-compliance
with the foundational elements for this mode of impeachment
will be a ground for an objection based on "improper impeach-
ment." Over a timely objection, extrinsic evidence of a prior
inconsistent statement without the required foundation is not
admissible.

Illustration No. 1
The case is a robbery case. The accused has Oriental fea-
tures and is five feet and three inches tall. The prosecution
328 EVIDENCE
(The Bar Lectures Series)

witness is one who allegedly saw the culprit come out of the
crime scene.

Q: Mr. A, you testified on direct examination that the


man you saw come out of the burglarized store had
Oriental features and was a little over five feet tall.
Is that correct?
A: Yes, Sir.
Q: Are you certain of your description of the man?
A: Very certain, Sir.
Q: And when was this?
A: On February 15, 2005, around 9:30 in the evening.
That was the date and time of the burglary.
Q: Do you recall having seen SP04 Morales outside the
burglarized store at around 10:00 of the same day
and night?
A: I do, Sir. He spoke to me that night and asked me
what I saw.
Q: And that was only ten minutes from the time you
saw the man. Is that correct?
A: That is correct, Sir.
Q: And at that time, everything was still fresh in your
mind. Right?
A- You're absolutely right, Sir.
Q: Do you recall telling SP04 Morales that you cannot
give an accurate description of the man who came
out of the burglarized store because he was wearing
a bonnet over his face, had a pair of gloves on and
was wearing dark long sleeves?

At this point the witness gets boxed in, and his credibility
starts crumbling no matter how he responds to the question
asking him to affirm or deny the prior inconsistent statement.
If the witness admits the prior inconsistent statement, the
rule requires that he be allowed to explain them. Often, it is
difficult to explain inconsistent statements and would require
TESTIMONIAL EVIDENCE 327
D Impeachment of a Witness

( a ) T h e 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 be shown to him;

( b ) He must be asked whether he made such state-


ments and also to explain them if he admits making those
statements.

3. The mere presentation of the prior declarations of


the witness without the same having been read to him while
testifying in court is insufficient for the desired impeachment
of his testimony if he was not given the ample opportunity to
explain the supposed discrepancy. This rule is founded not
only upon common sense but is essential to protect the char-
acter of the witness (People v. De Guzman, 288 SCRA 346,
354).

4. To achieve a dramatic effect, the first step in setting


up the prior inconsistent statement would actually be to ask
the witness to repeat or reaffirm his most recent statement.
The second step would be to relate to the witness his prior
inconsistent statement and at the same time "building up" or
highlighting the contradictory utterance by relating to the wit-
ness the circumstances of time, persons and place. Then the
witness is asked whether or not, the statements were made
(Section 13, Rule 132, Rules of Court).
The underlying purpose for laying the predicate is to al-
low the witness to admit or deny the prior statement and af-
ford him an opportunity to explain the same. Non-compliance
with the foundational elements for this mode of impeachment
will be a ground for an objection based on "improper impeach-
ment." Over a timely objection, extrinsic evidence of a prior
inconsistent statement without the required foundation is not
admissible.

Illustration No. 1
The case is a robbery case. The accused has Oriental fea-
tures and is five feet and three inches tall. The prosecution
330 EVIDENCE
(The Bar Lectures Series)

Q: After making sure that the contents of the written


statement were correct, you signed the statement. Is
that correct?
A: That is correct, Sir.
Q: I am showing you a three-page statement entitled
"Sinumpaang Salaysay." Is this the statement you
signed before Detective Rosales?
A: It is, sir.
Q: At the end of the last page is a name and signature
over the name. Is that your name and signature?
A: They are, Sir.

Counsel will now ask that the statement be marked as


an exhibit including the name and signature of witness. Then
counsel will call the attention of the witness to the relevant
paragraph of her signed statement. The reading of the prior
inconsistent statement must be verbatim, not a mere summary
as: In paragraph 13 of this "Sinumpaang Salaysay," you stat-
ed, and I quote. . ."

Impeachment by Showing Bad Reputation


1. W h e n a witness testifies, he puts his credibility at
issue because the weight of his testimony depends upon his
credibility. One w a y to impair his credibility is by showing a
not so pleasing reputation. Hence, the prevailing rule allows
his impeachment by evidence that he has a bad general repu-
tation.

2. N o t every aspect of a person's reputation may be the


subject of impeachment. Evidence of bad reputation for the
purpose of impeachment should refer only to the following
specific aspects: ( a ) for truth; (b) for honesty; or (c) for integ-
rity (Section 11, Rule 132, Rules of Court). These are aspects
of a person's reputation that are relevant to his credibility.
He cannot be impeached for his reputation on other grounds.
Thus, it would be improper for a witness to be impeached be-
cause of his reputation for being troublesome and abrasive.
TESTIMONIAL EVIDENCE 331
D Impeachment of a Witness

Example: M r . W is called by the prosecution to testify


that it was indeed the accused who picked the pocket of the
victim when the latter accidentally tripped by the sidewalk.
T h e defense later presents M r . D, a neighbor of M r . W for
thirty (30) years, who testifies that M r . W has a reputation in
the community for telling lies. T h e testimony of M r . D is an
impeaching testimony to discredit M r . W. M r . D, who has tes-
tified on the reputation of M r . W, may be cross-examined like
any witness. He may be asked on cross-examination about the
extent of his familiarity with the witness who is being im-
peached, together with any prejudice and biases he may have
against the witness or his stake and interest in the case.

No Impeachment by Evidence of Bad Character but by Bad


Reputation
1. It should be noted that Section 11 does not allow im-
peachment by evidence of bad character but by bad reputa-
tion.
2. "Character" is made up of the things an individu-
al actually is and does, whereas "reputation" is what people
think an individual is and what they say about him (Mcnaulty
v. State, 138 Tex.Cr.R. 317. 135 S.W.2d 987, 989; James v.
state ex rel. Loser, 24 TennApp. 453, 145 S.W.2d 1026, 1033
cited in Black's Law Dictionary, 1172). Hence, a person's repu-
tation is not necessarily his character and vice versa.

Evidence of Good Character of the Witness


1. Be it noted too that the party calling a witness, can-
not initiate proof of his good character. Thus, if the plaintiff in
a civil case presents Mr. W to testify on a vehicular collision,
the counsel is not allowed to ask questions tending to show
the good character or reputation of the witness. Any question
to that effect can be validly objected to as "improper character
evidence." Because a witness is presumed to be truthful and
of good character, the party presenting him does not have to
prove he is good because he is presumed to be one. It is only
after his character has been attacked, can he prove his be-
332 EVIDENCE
(The Bar Lectures Series)

ing good. He must first be discredited before his reputation or


character can be bolstered. This basic procedural rule is sup-
ported by the provisions of Section 14 of Rule 132:

"Section 14. Evidence of good character of witness.


Evidence of the good character of a witness is not ad-
missible until such character has been impeached."

2. The rule that bars evidence of the good character of


the witness who has not yet been impeached has reference
only to a mere witness. It does not refer to an accused in a
criminal case. In a criminal case, the accused may prove his
good moral character relevant to the offense charged even be-
fore his character is attacked (Section 5111], Rule 130, Rules of
Court). However, the prosecution cannot initiate proof of the
bad character of the accused. It can only do so by w a y of rebut-
tal (Section 51[2], ibid.). This means that the prosecution can
prove the bad character of the accused only if the latter had
first presented evidence of his good character.

No Impeachment by Evidence of Particular Wrongful Acts


1. Consider this example: T h e case is a criminal pros-
ecution for robbery. T h e defense is presenting its evidence-in-
chief and calls its first witness who is called to impeach the
primary witness of the prosecution. T h e defense counsel asks
a series of questions to show specific instances of misconduct
of the prosecution witness.

Q: Do you know the prosecution witness?


A: I do.
Q: How did you come to know him?
A: Two years ago, he robbed me of my wallet at gun
point.
Q: Was that incident the first time you came to know
the prosecution witness?
A: No Sir.
TESTIMONIAL EVIDENCE 333
D Impeachment of a Witness

Q: Why do you say so?


A: Prior to my being robbed by him, he stole the cara-
bao of my neighbor.

Is this line of questioning objectionable? Certainly it is. A


witness cannot be impeached by evidence of particular wrong-
ful acts (Section 11, Rule 142, Rules of Court). Just as a witness
cannot testify on specific acts of misconduct committed by the
witness being impeached, the latter cannot also be examined
on particular wrongful acts done by him. To do so would be a
contravention of the tenor of Section 11 of Rule 132.

He can nevertheless, be impeached as to his bad reputa-


tion for truth, honesty or integrity. Thus:

Q: How long have you known the prosecution witness?


A: Since childhood, Sir.
Q: How well do you know him?
A: Very well, Sir.
Q: Why do you say so?
A We studied in the same school since nursery school
until we both graduated from college. We were also
neighbors since childhood.
Q: What can you say about his reputation?
A: Terrible, Sir. He is dishonest and untruthful.

This line of questioning does not violate the rules on im-


peachment. This is not an impeachment by evidence of spe-
cific wrongful conduct which is barred, but an impeachment
by evidence of bad reputation.
2. As earlier mentioned, Section 11 of Rule 132 disal-
lows the impeachment of a witness by evidence of his particu-
lar wrongful acts. There is however, a particular wrongful act
that is admissible in evidence under the same section his
prior conviction of an offense. This prior conviction of the wit-
ness is shown through either of two ways: ( a ) by his exami-
nation, i.e., by cross-examining him, or (b) by presenting the
record of his prior conviction.
334 EVIDENCE
(The Bar Lectures Series)

Examining another witness to elicit from his lips the pri-


or conviction of another witness is not the correct procedure
unless the witness is one who is competent (like an official
custodian of records) to present in court the record of convic-
tion. The rule is clear on this. It should be by "the examination
of the witness." This witness is the one whose prior conviction
is the subject of inquiry.

Impeachment of the Adverse Party as a Witness


That the witness is the adverse party does not necessarily
mean that the calling party will not be bound by the former's
testimony. The fact remains that it was at his instance that
his adversary was put on the witness stand. He is not bound
only in the sense that he may contradict him by introducing
other evidence to prove a state of facts contrary to what the
witness testifies. Unlike an ordinary witness, the calling par-
ty may impeach an adverse witness in all respects as if he had
been called by the adverse party, except by evidence of his
bad character. Under a rule permitting the impeachment of
an adverse witness, although the calling party does not vouch
for the witness' veracity, he is nonetheless bound by his testi-
mony if it is not contradicted or remains unrebutted (Gaw v.
Chua, G.R. No. 160855, April 16, 2008).

Exclusion and Separation of Witnesses


1. The judge may exclude a witness who at the time of
exclusion is not under examination so that he may not hear
the testimony of other witnesses (Section 15, Rule 132, Rules
of Court).

2. The judge may cause the witnesses to be kept sepa-


rate and to be prevented from conversing with one another
until all shall have been examined (Ibid.).

When the Witness May Refer to a Memorandum


1. During his testimony, in order to refresh his memory,
a witness may refer to a memorandum or to anything written
TESTIMONIAL EVIDENCE 335
E Character Evidence

or recorded by himself or written or recorded by someone act-


ing under his direction. Such memorandum should have been
written at the time the fact occurred or immediately there-
after or at any time when the event or fact was fresh in his
memory. It is necessary too that the witness affirm that the
fact was correctly written or recorded. Also, the memorandum
must be produced and may be inspected by the adverse party
(Section 16, Rule 132, Rules of Court).

2. The witness may testify from the memorandum,


writing or record, although he has no more recollection of the
facts written therein as long as he swears that the memoran-
dum, writing or record correctly stated the fact or transac-
tion when the recording was made. This type of evidence must
however, be received with caution (Ibid.).

E Character Evidence

Inadmissibility of Character Evidence


1. Character is the aggregate of the moral qualities
which belong to and distinguish an individual person; the
general results of one's distinguishing attributes. It refers to
what a man is and depends on the attributes he possesses.
It is not the same as a man's reputation because the latter
depends on attributes which others believe one to possess.
Character signifies reality while reputation signifies what is
accepted to be reality at present (Black's Law Dictionary, 5th
Ed., 211). In other words, while character is what the person
really is, reputation is what he is supposed to be in accordance
with what people say he is, and is dependent on how people
perceive a person to be.
2. Character evidence is, as a rule, not admissible (Sec-
tion 51, Rule 130, Rules of Court). Character is generally ir-
relevant in determining a controversy because the evidence
of a person's character or trait is not admissible to prove that
a person acted in conformity with such character or trait in a
particular occasion (29 Am Jur 2d, Evidence, 363).
336 EVIDENCE
(The Bar Lectures Series)

The rule is that the character or reputation of a party is


regarded as legally irrelevant in determining a controversy,
so that evidence relating thereto is not admissible. Ordinar-
ily, if the issues in the case were allowed to be influenced by
evidence of the character or reputation of the parties, the trial
would be apt to have the aspects of a popularity contest rather
than a factual inquiry into the merits of the case. After all, the
business of the court is to try the case, and not the man; and a
very bad man may have a righteous cause (People v. Lee, G.R.
No. 139070, May 29, 2002).

Evidence of Bad Moral Character of the Accused


1. 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 (Section 51[a][2], Rule 130, Rules of
Court). This means that the prosecution may not offer evidence
of the character of the accused unless the accused himself has
offered evidence of his good character. T h e prosecution there-
fore, must wait until the accused puts his character in issue
during the proceedings. W h e r e the accused proves his good
moral character pertinent to the moral trait involved in the
offense charged (Section 51[a][l], Rule 130, Rules of Court), he
opens the door to the prosecution to prove that his character
is in fact, bad. Then and only then may the prosecution prove
the bad moral character of the accused.

The relevant provision provides:

"Section 51. Character evidence not generally ad-


missible; exceptions.
(a) In Criminal Cases:
(1) xxx
(2) Unless in rebuttal, the prosecution may
not prove his bad moral character which is per-
tinent to the moral trait involved in the offense
charged. (Italics ours)

2. As mentioned, the prosecution is forbidden by Sec-


tion 51 of Rule 130 to initiate evidence of the bad moral char-
TESTIMONIAL EVIDENCE 337
E Character Evidence

acter of the accused. It prevents the government from opening


the doors towards the introduction of character evidence of
the accused. T h e rule that confines the right of the prosecu-
tion to prove the bad moral character of the accused only by
w a y of rebuttal is a logical one. It prevents a pronouncement
of guilt on account of his being a "bad" man and instead an-
chors a conviction on the basis of the sufficiency of evidence of
his guilt. T h e rule also prevents the inference that being a bad
person the accused is more likely to commit a crime. The rule
likewise discourages the presentation of the so-called "propen-
sity evidence," i.e. evidence that one acts in accordance with
one's character.

3. T h e offering of evidence of good moral character is


a privilege of the accused and the prosecution cannot even
comment on his failure to produce such evidence. But once he
raises the issue of his good character, the prosecution may,
in rebuttal, offer evidence of the defendant's bad character
(People v. Lee, G.R. No. 139070, May 29, 2002).

Evidence of Good Moral Character of the Accused


1. T h e accused may prove his good moral character
when pertinent to the moral trait involved in the offense
charged (Section 51[a][l], Rule 130, Rules of Court). The ap-
plicable provision states:

"Section 51. Character evidence not generally ad-


missible; exceptions. x x x
(a) In Criminal Cases:
(1) The accused may prove his good moral
character which is pertinent to the moral trait in-
volved in the offense charged."

2. While the prosecution is forbidden to present evi-


dence of the bad moral character of the accused unless in re-
buttal, the general rule against "propensity evidence" does not
apply to the accused who is allowed to offer evidence of his
good character. N o t all aspects however, of the character of
338 EVIDENCE
(The Bar Lectures Series)

the accused may be proven. Only those moral traits involved


in the offense charged are provable. In doing so, an accused
may advance more than one character trait as evidence so
long as each trait is germane to some issue in the case (United
States v. Curtis [Ca3 Pa] 644 F2d 263).
3. He may not however, prove his character by evidence
of specific instances of good conduct (29 Am Jur 2d, Evidence,
367; Government of Virgin Islands v. Grant [CA3 V] 775 F2d
508,19 Fed Rules Evid Serv 620). Hence, he cannot prove that
on one occasion he fed an old woman dying of starvation, and
on another, he came to the aid of a damsel in distress. H o w -
ever, when the specific acts are the very issues in the case, an
inquiry into such acts is permissible.

4. The accused may prove his good moral character


which is pertinent to the moral trait involved in the offense
charged. When the accused presents proof of his good moral
character, this strengthens the presumption of innocence, and
where good character and reputation are established, an infer-
ence arises that the accused did not commit the crime charged.
This view proceeds from the theory that a person of good char-
acter and high reputation is not likely to have committed the
act charged against him. T h e prosecution may not prove the
bad moral character of the accused except only in rebuttal and
when such evidence is pertinent to the moral trait involved in
the offense charged. This is intended to avoid unfair prejudice
to the accused who might otherwise be convicted not because
he is guilty but because he is a person of bad character. T h e
offering of character evidence on his behalf is a privilege of
the defendant, and the prosecution cannot comment on the
failure of the defendant to produce such evidence. Once the
defendant raises the issue of his good character, the prosecu-
tion may, in rebuttal, offer evidence of the defendant's bad
character (People v. Lee, G.R. No. 139070, May 29, 2002).

Evidence of Character of the Offended Party


(1) T h e good or bad moral character of the offended
party may be proved by the accused if it tends to establish in
TESTIMONIAL EVIDENCE 339
E Character Evidence

any reasonable degree the probability or improbability of the


offense charged (Section 51[aJ[3], Rule 130, Rules of Court).
Section 51 of Rule 130 provides:

"Section 51 x x x
(a) In Criminal Cases:
(1) xxx
(2) xxx
(3) The good or bad moral character of the
offended party may be proved if it tends to estab-
lish in any reasonable degree the probability or im-
probability of the offense charged."

2. It will be readily observed that the above provision


pertains only to criminal cases, not to administrative offens-
es. Also, not every good or bad moral character of the offend-
ed party may be proved under this provision but only those
which would establish the probability or improbability of the
offense charged. This means that the character evidence must
be limited to the traits and characteristics involved in the type
of offense charged. Thus, on a charge of rape character for
chastity, on a charge of assault character for peaceableness
or violence, and on a charge of embezzlement character
for honesty. In one rape case, where it was established that
the alleged victim was morally loose and apparently uncar-
ing about her chastity, the Court found the conviction of the
accused doubtful (Civil Service Commission v. Belagan, 440
SCRA 578).

Character Evidence in Child Abuse Cases (Sexual Abuse


Shield Rule)
Under the sexual abuse shield rule as provided for in Sec-
tion 30 of The Rule on Examination of A Child Witness, A.M.
No. 004-07-SC (December 15, 2000), the following are not ad-
missible in any criminal proceeding involving alleged sexual
child abuse:
(1) Evidence offered to prove that the alleged vic-
tim engaged in other sexual behavior; and
340 EVIDENCE
(The Bar Lectures Series)

(2) Evidence offered to prove the sexual predisposi-


tion of the alleged victim.
Exception: Evidence of specific instances of sexual behav-
ior by the alleged victim is admissible to prove that a person
other than the accused was the source of semen, injury, or
other physical evidence (Section 30[b], The Rule on Examina-
tion of A Child Witness, A.M. No. 004-07-SC).

Character Evidence in Civil Cases


In civil cases evidence of the moral character of a party
is admissible only when pertinent to the issue of character
involved in the case (Section 51[b], Rule 130, Rules of Court).
Thus, evidence of a party's intemperance may be admitted
when his intemperance is pertinent to the issues involved.

Evidence of Good Moral Character of a Witness


Evidence of the good moral character of a witness is not
admissible until such character has been impeached (Section
14, Rule 132 and Section 51[c], Rule 130, Rules of Court). It is
error for counsel to offer evidence of the good moral character
of his witness who is presented in court for the first time since
he could not have been previously impeached.

F Opinion Evidence

The rules on opinion evidence provide:

"Section 48. General rule. The opinion of a wit-


ness is not admissible, except as indicated in the follow-
ing sections.
Section 49. Opinion of expert witness. The opin-
ion of a witness on a matter requiring special knowl-
edge, skill, experience or training which he is shown to
possess, may be received in evidence.
Section 50. Opinion of ordinary witnesses. The
opinion of a witness for which proper basis is given,
may be received in evidence regarding
TESTIMONIAL EVIDENCE 341
F Opinion Evidence

(a) The identity of a person about whom he has


adequate knowledge;
(b) A handwriting with which he has sufficient fa-
miliarity; and
(c) The mental sanity of a person with whom he
is sufficiently acquainted.
The witness may also testify on his impressions
of the emotion, behavior, condition or appearance of a
person.

Admissibility of Opinion Evidence


As a rule, the opinion of a witness is inadmissible (Sec-
tion 48, Rule 130, Rules of Court). This is because when a wit-
ness testifies, a witness does so with respect to facts person-
ally observed by him and it is for the court to draw conclusions
from the facts testified to.

When Opinion Evidence is Admissible; Expert Testimony


1. W h e n the opinion is that of an expert, i.e., the opin-
ion of a witness requiring special knowledge, skill, experience
or training which he is shown to possess, it may be received in
evidence (Section 49, Rule 130, Rules of Court).
2. T h e court is not however, bound by the opinion of an
expert such as a handwriting expert. Expert opinion evidence
is to be considered or weighed by the court like any other tes-
timony, in the light of its own general knowledge and experi-
ence upon the subject of inquiry. The probative force of the
testimony of an expert does not lie in a mere statement of his
theory or opinion, but rather in the aid that he can render to
the courts in showing the facts which serve as a basis for his
criterion and the reasons upon which the logic of his conclu-
sion is founded (Dizon v. Tuazon, G.R. No. 172167, July 9,
2008).
3. The resort to handwriting experts, although helpful
in the examination of forged documents because of the techni-
cal procedure involved in analyzing them, is not mandatory or
342 EVIDENCE
(The Bar Lectures Series)

indispensable to the examination or comparison of handwrit-


ing, and a finding of forgery does not entirely depend upon the
testimony of these experts (Libres v. Delos Santos, G.R. No.
176358, June 17, 2008).
Expert opinions are not ordinarily conclusive. W h e n faced
with conflicting expert opinions, courts give weight and cre-
dence to that which is more complete, thorough and scientific
(Bacalso v. Padigos, G.R. No. 173192, April 18, 2008).
A finding of forgery does not depend entirely on the tes-
timonies of handwriting experts, because the judge must con-
duct an examination of the questioned signature in order to
arrive at a reasonable conclusion as to its authority (Pontaoe
v. Pontaoe, G.R. No. 159585, April 22, 2008).

Opinion of An Ordinary Witness; When Admissible


When the opinion is that of a witness who is not an ex-
pert (ordinary witness) provided that the proper basis of the
opinion is given and the subject of the opinion is any of the
following matters:

( a ) The identity of a person about whom the wit-


ness has adequate knowledge;
(b) The handwriting of the person of which the wit-
ness has adequate knowledge;
(c) The mental sanity of a person with whom he is
sufficiently acquainted; and
( d ) T h e impressions of the witness on the emotion,
behavior, condition or appearance of a person (Section 50,
Rule 130, Rules of Court).

Bar 2005
Dencio barged into the house of Marcela, tied her to
a chair and robbed her of assorted pieces of jewelry and
money. Dencio then brought Candida, Marcela's maid, to
a bedroom where he raped her. Marcela could hear Can-
dida crying and pleading: "Huwag! Maawa ka sa akin!"
TESTIMONIAL EVIDENCE 343
F Opinion Evidence

After raping Candida, Dencio fled from the house with


the loot. Candida then untied Marcela and rushed to the
police station about a kilometer away and told Police Offi-
cer Roberto Maawa that Dencio had barged into the house
of Marcela, tied the latter to a chair and robbed her of
jewelry and money. Candida also related to the police of-
ficer that despite her pleas, Dencio had raped her. The
policeman noticed that Candida was hysterical and on the
verge of collapse. Dencio was charged with robbery with
rape. During the trial, Candida can no longer be located.
(a) xxx
(b) If the police officer will testify that he noticed
Candida to be hysterical and on the verge of collapse,
would such testimony be considered as opinion, hence, in-
admissible? Explain.

Suggested answer:
(a) xxx
(b) The testimony would be admissible even if it
would be an opinion. The opinion of an ordinary witness
is admissible when such testimony refers to his impres-
sions of the emotion, behavior, condition or appearance of
a person (Section 50, Rule 130, Rules of Court).

- oOo -
Chapter V

HEARSAY EVIDENCE

Hearsay Evidence
1. The Philippine version of the hearsay rule is embod-
ied in Sec. 36 of Rule 130. It provides:

"Section 36. Testimony generally confined to per-


sonal knowledge; hearsay excluded. A witness can
testify only to those facts which he knows of his per-
sonal knowledge; that is, which are derived from his
own perception, except as otherwise provided in these
rules."

2. The reliability of a testimony is based on the person-


al knowledge of the witness. If a witness testifies on the basis
of what others have told him, and not on facts which he knows
of his own personal knowledge, the testimony would be ex-
cluded as hearsay evidence (Mallari v. People, 446 SCRA 74).
This is because the witness cannot be effectively cross-exam-
ined on the matters he testified to. His answers to questions
in open court would necessarily be based on the knowledge of
a person who is not in the witness stand. T h e latter, called the
outside declarant, cannot be cross- examined because he is not
in court.

3. Evidence is called hearsay when its probative force


depends, in whole or in part, on the competency and credibility
of some persons other than the witness by whom it is sought
to produce it (Estrada v. Desierto, 356 SCRA 108).

344
HEARSAY EVIDENCE 345

Bar 2007
(a) What is the hearsay rule?
(b) In relation to the hearsay rule, what do the fol-
lowing rules of evidence have in common?
1. The rule on statements that are parts of
the res gestae;
2. The rule on dying declarations;
3. The rule on admissions against interest.
Suggested answers:
(a) See Sec. 36 of Rule 130.
(b) They are exceptions to the rule that hearsay
evidence is inadmissible. They are in other words, admis-
sible hearsay.

Basis for Excluding Hearsay Evidence


1. T h e rule excluding hearsay testimony rests mainly
on the ground that there is no opportunity to cross-examine
the outside declarant (Mines v. St. Louis Corp. 129 Mo. A.,
705, 716, 162 S.W. 741). Thus, in criminal cases for instance,
the admission of hearsay evidence would be a violation of the
constitutional provision that the accused shall enjoy the right
to confront the witnesses testifying against him and to cross-
examine them (People v. Mamalias, 328 SCRA 760). The hear-
say rule therefore, bars the admission of evidence that has not
been given under oath or solemn affirmation and more impor-
tant, has not been subjected to cross-examination by opposing
counsel.
It is because of the above reason that if the affiants of affi-
davits do not take the witness stand to affirm their averments
in their affidavits, such affidavits must be excluded from the
judicial proceeding, being inadmissible hearsay (People v.
Quidato, Jr., 297 SCRA 1).
2. Hearsay evidence if not objected to is admissible.
However, even if admitted, it has no probative value (Mallari
v. People, 446 SCRA 74).
346 EVIDENCE
(The Bar Lectures Series)

When Evidence is Hearsay


1. Although hearsay evidence presupposes lack of per-
sonal knowledge of the truth of the fact asserted by a witness,
the purpose for which the evidence is offered is a vital element
of hearsay evidence. It is the purpose for which the evidence is
offered which would determine whether the same is hearsay
or not.
2. The element of "purpose" had long been recognized
in this jurisdiction, as was done in the early case of Robles v.
Lizarraga Hermanos (42 Phil. 584; also cited by Moran, Com-
ments on the Rules of Court, Vol. 5, 289). Here, the Supreme
Court admitted unsigned statement of accounts not to prove
the truth of its entries but for the purpose of showing the pos-
sessor's good faith in making improvements on the property,
and to show that such improvements were made pursuant to
a verbal contract that the leased property will eventually be
sold to her. The importance of purpose was also recognized
by the Supreme Court in a much earlier case. In U.S. v. En-
riquez (1 Phil. 241) testimony was admitted as to the state-
ments made by another for the purpose of showing his state
of mind, his physical and mental condition, knowledge, belief,
intention, and other emotions. In the same case, documents
and letters were also admitted as circumstantial evidence of a
person's physical and mental state. In a very much later case,
the Supreme Court acknowledged that the ban on hearsay
does not include statements which are relevant independently
of whether they are true or not, like statements of a person
to show, among others, his state of mind, mental condition,
knowledge, belief, intention, ill-will and other emotions (Es-
trada v. Desierto, 356 SCRA 108).

2. Section 36 as written, incompletely describes the es-


sence of the hearsay rule because of its failure to embody the
element of "purpose." As written, it appears more to be a defi-
nition of the "first-hand knowledge rule" which although simi-
lar to the hearsay rule, is traditionally distinct from it. W r i t -
ing about the rule requiring firsthand knowledge, the eminent
authority on evidence, Dean McCormick writes:
HEARSAY EVIDENCE 347

T h e r e is a rule, more ancient than the hearsay rule,


and having some kinship in policy, which is to be distin-
guished from it." This is the rule that a witness is quali-
fied to testify to a fact susceptible of observation, only if it
appears that he had a reasonable opportunity to observe
the fact (McCormick, Evidence, 3rd Ed. p. 731).

3. A much clearer definition of "hearsay" is found in


the Federal Rules of Evidence (Rule 801[c]) where 'hearsay' is
defined as:

" . . . a statement, other than the one made by the


declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted."

This definition considers "hearsay" as a statement. But


what is a 'statement'? In Rule 801(a), Federal Rules of Evi-
dence, a statement is either an oral or written assertion or a
nonverbal conduct intended by the person as an assertion. To
constitute hearsay therefore, there must be:
( 1 ) an out-of-court statement, oral, written or non-
verbal conduct, made by one other than the one made by
the declarant or witness testifying at the trial; and
( 2 ) the out-of-court statement must be offered to
prove the truth of the mattter asserted in the out-of-court
statement (29 Am Jur 2d, 2nd Ed. Pp. 704-705; FRE,
801[c]).
Authorities have defined hearsay evidence substantially
in the same manner. Some definitions call hearsay a "state-
ment or assertive conduct which was made or occurred out of
court to prove the truth of the facts asserted" or a "testimony
in court, or written evidence, of a statement made out of court,
such evidence being offered as an assertion to show the truth
of the matters asserted therein, and which thus rests for its
value upon the credibility of the out-of-court asserter" (Dean
Ladd and Dean McCormick respectively, cited in Kaplan, Evi-
dence, 6th Ed. P. 87).
A shorter definition but complete definition of the term is
found in People v. DeMarco (195 N.E. 2d, 213,216, 44 III. App.
348 EVIDENCE
(The Bar Lectures Series)

2d 459), where hearsay is defined "as an out of court state-


ment offered for the truth of the matter asserted" (cited in
Words and Phrases, Permanent Ed., 1970, 269).

Specific Elements of Hearsay Evidence


1. There is a common thread running through all the
cited definitions. There is agreement that the following are
the specific elements of hearsay evidence:
( a ) First, there must be an out-of-court statement.
It doesn't really matter what the form of the statement
is. It may be oral. It may be written. It may even be a
conduct, as long as that conduct is intended by the actor
as an assertion. W h a t matters is that the statement was
not made by the declarant in the hearing or trial.
(b) Second, that statement made out of court, is re-
peated and offered by the witness in court to prove the
truth of the matters asserted by the statement.

Illustration:
Let us have Jose, a witness testifying in court as to what
his friend, Juan wrote him. In a letter dated August 5, his
friend wrote Jose that it was a street bum who shot the cop,
not Jose's uncle. Jose's friend, Juan, the eyewitness is not in
court. It is Jose who is in court but we hear Jose presenting a
statement that is not his own. It is a statement made outside
the court by his friend, Juan. His friend's statement is an out-
of-court statement because when it was made, the friend who
made it was in Cebu and he is not the witness in court. We
clearly have an out-of-court statement from Jose's friend whom
we shall call an outside declarant. We have the first part of our
formula: An out-of-court statement from an out-of-court declar-
ant. Is Jose's testimony therefore, hearsay? Answer: We still do
not know. We do not know because we do not know the purpose
of the testimony. Is it offered to prove that it was indeed a bum
who shot the cop? Or is it offered to prove something else? We
are not sure. If we are not sure, then we do not know if it is
hearsay. How can we then be sure? To be sure we must know
what it is the proponent wants to prove. After knowing what
HEARSAY EVIDENCE 349

he wants to prove, then we ask whether or not the matter he


wants to prove is relevant to an issue in the case. This is basic,
a matter of logic, and no rules of evidence need tell us this.
Suppose the judge asks: "Counsel what is the purpose of
Jose's testimony that his friend wrote him that 'it was a street
bum who shot the cop and not Jose's uncle?'" Comes the quick
reply: "To prove Your Honor, that Jose's friend was alive on
August 5 and not to prove that it was a bum who shot the cop.
Had he been dead on that day, he would not have been able to
write Jose."

Is the testimony of Jose hearsay? Now let us go back to


our formula. Do we have an out-of-court statement? Yes, we do.
The friend's statement is out-of-court and you know the reason
for this. We have our first element, an out-of-court statement.
To be hearsay, we must have the second. Do we have it this
time? Let us repeat what counsel says his purpose is. He says,
"To prove Your Honor that Jose's friend was alive on August
5...etc." There you are. We do not have the second part of our
formula. We do not have the second part because we are told
the statement is offered to prove that "Jose's friend was alive
on August 5." It is not to prove that it was "a street bum who
shot the cop." The declaration of Juan is not therefore, to prove
the truth of the matter asserted in the statement of Juan. We
have the first component but we don't have the second. What
then would the judge rule? Clearly it would be, "Objection,
overruled. Not hearsay!"
Will Jose's testimony then be admissible? It would be ad-
missible as long as the fact that Jose's friend was alive on Au-
gust 5 is relevant to an issue of the case. If the evidence is not
allowed, it is not because of the hearsay rule but because it did
not meet the standards of relevance.
Let us repeat the question of the judge: "Counsel, what is
the purpose of Jose's testimony that his friend wrote him that
'it was a street bum who shot the cop and not Jose's uncle?'"
This time counsel emphatically declares: "To prove Your Hon-
or, that it was not Jose's uncle who shot the cop but a bum!"
Should the judge sustain a hearsay objection? This time, the
judge should sustain the objection. The formula is now com-
plete. Jose's testimony is hearsay. It is hearsay because the
out-of-court statement of Jose's friend that "it was a street bum
350 EVIDENCE
(The Bar Lectures Series)

who shot the cop and not Jose's uncle" is offered to prove the
very matter asserted in the statement: that "it was a street
bum who shot the cop... etc... etc...etc..." The first response is
different. It is not hearsay because it was not offered to prove
the truth of the assertion in the letter of Jose's friend. It was
offered to prove a different purpose.

2. We rarely encounter problems as to the first compo-


nent. It is easy to know whether or not a statement offered is
out-of-court. When a witness testifies: "A policeman told me
that a car was stolen in Pedro's driveway," we immediately
can tell that the policeman's statement was made out of court.
It is the witness who is in court, not the policeman.

Implied from an out-of-court statement is the fact that


the witness has no personal knowledge of the matter testified
too. It is someone outside the court and who at the same time
is not in the stand who has personal knowledge of the facts.
That someone outside the court cannot be questioned. His per-
ception cannot be tested. His capacity to remember what he
perceived cannot be accurately determined. Neither can his
capacity to communicate his remembered perceptions. Why?
Because he is not in court and if he is not in court he cannot
be cross-examined. If he cannot be cross-examined, who in his
right mind is willing to take his words at their face value?
Who can you find willing to believe his statements repeated
by the witness inside the courtroom? Remember Sec. 36, Rule
130 of the Rules of Court? L e t us have a piece of it once more:
"A witness can testify only to those facts which he knows of his
personal knowledge..." A n d what do the rules say as to what
"personal knowledge" is? Those "which are derived from his
own perception..."

3. Why must a witness testify only to matters of his per-


sonal knowledge? T h e answer is clear. T h e witness' credibility,
accuracy of perception and recollection, can be tested before
the court through cross-examination. Those of the out-of-court
declarant cannot. The latter's statements are therefore, un-
reliable. In the high fallutin terminology of the academe, his
statements lack the "indicia" of trustworthines. It is this lack
HEARSAY EVIDENCE 351

of reliability which is the reason for the time-honored rule ex-


cluding hearsay testimony.

4. T h e issue often centers on the second component of


our hearsay formula and it is this second one which the reader
must set his sights on. In most hearsay problems, the first
component is always present. It is this part which the mind
easily grasps. N o t the second. Sometimes, this component ap-
proximates the abstract hiding itself from the eyes of common
mortals like us. It is concededly the more controversial part of
our supposedly practical rule. W h e n this part is absent, i.e.,
the out-of-court statement is not offered to prove the truth of
the matter asserted, it is said that the statement is offered for
a non-hearsay purpose. If it is offered to prove the truth of the
statement, it is hearsay because it is offered to prove a hear-
say purpose. W h e r e a statement is not offered for the truth of
the matter asserted but is offered for an evidentiary purpose
not dependent on the truth of the matters asserted, the state-
ment is non-hearsay.

Bar 2004
Distinguish clearly but briefly between:
(1) xxx
(2) xxx
(3) xxx
(4) Hearsay evidence and opinion evidence.
(5) xxx

Suggested answer:
(1) xxx
(2) xxx
(3) xxx
(4) Hearsay evidence is one that is not based on
one's personal perception but based on the knowledge of
others to prove the truth of the matter asserted in an out-
of-court declaration (Sec. 36, Rule 130, Rules of Court).
352 EVIDENCE
(The Bar Lectures Series)

An opinion evidence is based on the personal knowledge


or personal conclusions of the witness based on his skill,
training or experience (Sec. 49, Rule 130, Rules of Court).
(5) x x x

Examples of Non-hearsay Evidence


(a) A "statement having probative worth simply by
virtue of the fact that it was uttered, if relevant to a material
fact in issue, is not hearsay and is generally admissible . . .
Where a statement is not offered for the truth of the contents
of the conversation, but only to show that it was made, then
the statement is not hearsay. For example, a statement
that is offered to show its patent falsity, so as to suggest the
defendant's consciousness of guilt, is not hearsay" (29 Am Jur
2d, 708).
(b) There are other kinds of out-of-court statements
that have been considered admissible because they w e r e of-
fered for a non-hearsay purpose like statements relating to
the state of mind of the declarant and statements relating to
the state of mind of the listener. Words uttered in this regard
merely constitute circumstantial evidence of an assertion and
where the making of the statement is the significant fact be-
cause it either gives rise to the inference about the declarant's
state of mind or indicates its effect on the hearer. T h e truth
of the statement is not in issue here. A statement by an out-
of-court declarant may be offered not for the veracity of what
is asserted but merely to impeach the declarant's credibility.
A threat against a witness may be offered in evidence to show
its impact on the witness and where the reasonableness of a
person's conduct is an issue, an out-of-court declaration may
be offered to explain the person's reactions to the declaration
(US v. Canieso, 470 F2d 1224 2d Cir. 1972; US v. Monroe, 943
F2d 1007, 9th Cir. 1991; US v. Baird, 29 F.3d 647, D.C. Cir
1994; cited in Charles Wagner, FRE Case Law Commentary,
533-535).
HEARSAY EVIDENCE 353

Out-of-Court Statements Offered to Prove Mental State of


the Declarant
1. As long as an out-of-court statement is offered for a
non-hearsay purpose (a purpose other than to prove the truth
of the matter asserted), the statement is admissible if it has
relevance to the matter in issue. A popular example of an out-
of-court statement offered for a non-hearsay purpose is one
which demonstrates by inference from the tenor of the state-
ment the state of mind of the speaker or the declarant. Here,
the significance of the statement is not whether its assertion
is true or false. Its significance rests on the mere fact that it
was uttered and by extension, on the conclusion which may
reasonably be drawn from the statement.

2. L e t us assume we have a special proceeding in court.


L e t us say it is the probate of a testator's will. Some heirs who
felt aggrieved by the dispositions in the will have raised the is-
sue of the testator's sanity. T h e will was purportedly executed
on January 3 of the previous year. A witness for the oppositor
is on the stand to testify on the testator's alleged incapacity.

Q: How long have you known the testator?


A: For twenty (20) years by the time he died, Sir.
Q: How did you come to know him?
A: I was her nurse for twenty (20) years, Sir.
Q: On January 3, 2008, what did you hear the testator
say, if any?
Objection, Your Honor! Hearsay! (Opposing counsel
objects.)
Court: Not so fast, Panero. Witness may answer!
A: In the morning of January 3, he said, "I am Joseph
Stalin." At around twelve high noon, he told me, "I
am Theodore Roosevelt." Right after the subscrib-
ing witnesses to his will left, he brushed me aside
and said. "They had no idea I am Saddam Hussein."
When I served him supper he said, "Those fools! They
didn't realize they just met Alexander the Great!"
Court: Objection, overruled!
354 EVIDENCE
(The Bar Lectures Series)

Are the statements of the testator offered to prove the


truth of the assertions therein? Certainly not. Obviously, the
out-of-court statements of the testator are not offered to prove
that he is Joseph Stalin, Theodore Roosevelt, Saddam Hus-
sein and Alexander the Great rolled into one. They are offered
for a non-hearsay purpose i.e., to prove by inference through
the statement that the testator on the day the will was ex-
ecuted, was incapacitated by reason of a mental condition.
From experience we know that a person's state of mind may
be revealed by his actions or by what he says. T h e declarant's
words or conduct constitute circumstantial evidence of his
state of mind. In this case, it is not the truth or falsity of the
conduct or words which matter. It is the fact that the state-
ment was made which is relevant. A testimony by the hear-
er that such statement was made is not hearsay. Why? T h e
hearer will be testifying as to his personal knowledge that the
statement was uttered. He may therefore, be cross examined
as to what he heard, when it was heard, how it was said, and
the circumstances surrounding the making of the statement.
The hearer's veracity and sincerity can well be tested under a
cross-examination because he will not be testifying as to the
veracity of the assertion or as to its falsity which are totally
irrrelevant.

3. Statements relating to the state of mind of the de-


clarant is one of those admissible out-of-court statements if
offered for non-hearsay purposes (29 Am Jur 2d, 708, 709).

Out-of-Court Statement Offered to Prove Its Effect on the


Listener/Hearer

1. An out-of-court statement may be offered not only


to prove the state of mind of the declarant. It may also be
used to show the state of mind of the hearer or listener. This
state of mind of the listener is oftentimes described in terms
of the effect of the declarant's statement on the hearer and
why the listener acted in a particular manner. As in our previ-
ous illustration, the statement here, although out-of-court, is
presented not to prove the truth of the statement and hence,
non-hearsay.
HEARSAY EVIDENCE 355

W h e n the statement is not offered for the truth of the


matter asserted but is offered to show the mental effect of the
statement on the hearer, the statement is not hearsay (U.S. v.
Norwood, 798 F .2d 1094 [7th Cir. I960]).

2. Our next example is a prosecution for arbitrary de-


tention. T h e accused is a police officer who chanced upon the
crime scene and arrested the complaining witness after he
was fingered by a witness to the felony. He is on the stand to
testify on the circumstances surrounding the arrest. L e t us
see whether or not a hearsay objection can be sustained.

Q: Sir, what were you doing on such and such place?


A: I was on a routine patrol.
Q: What happened on such and such date on such and
such time?
A- I saw people milling around something in the corner
of ABC andXYZSts.
Q: What if any did you do?
A: I got out of my patrol car to see what was happen-
ing.
Q: What if any did you see?
A: I saw a man lying face downward on the side of the
street with blood all over his back.
Q: What happened next?
A: A man whispered to me. "This happened barely two
minutes ago and that guy sitting there pretending to
be an onlooker is the culprit."
Counsel: Objection, Your Honor, Hearsay!
Court: Objection overruled!

The testimony, "This happened barely two minutes ago


and that guy sitting there pretending to be an onlooker is the
culprit," is not offered to prove that ( a ) the incident occurred
two minutes ago, or (b) that the guy sitting and pretending
to be an onlooker was the culprit. The testimony is to prove
that an arrest was made as a consequence of the out of court
356 EVIDENCE
(The Bar Lectures Series)

statement's effect on the hearer. This effect was the reason


for the arrest. This effect is relevant to justify the apprehen-
sion of the complaining witness. "Words offered to prove the
effect on the hearer are admissible when they are offered to
show their effect on one whose conduct is at issue" (State v.
Hernandez [App] 170 Arizona 301; 29 Am Jur 29, 710). This
is an important category of non-hearsay evidence worth re-
membering. The statement offered in evidence is not hearsay
because it is the hearer's reaction to the statement which is
sought to be proved. It is his reaction to the statement that is
relevant, not the truth of the assertion in the statement. Since
the hearer is present in court, he can be cross-examined on
whether or not he heard the statement accurately, believed
the statement to be true, and whether or not he really acted
in conformity with his belief.

Out-of-Court Statement Offered to Prove that the Statement


was Made
1. Where the statement is not offered for the truth of
the matter asserted, but to merely show what was said, the
statement is not hearsay (Ries Biological, Inc. v. The Bank of
Santa Fe, 780 F .2d 888 [10th Cir 1986]).

2. Here is another example. This time it is a prosecu-


tion for oral defamation where the following exchange took
place between the prosecutor and his witness:

Prosecutor: What did you hear the accused say?


Defense: Objection, Your Honor. Question calls for
hearsay testimony!
Court: Not so fast! Witness may answer.
Witness : The accused said while pointing to the vic-
tim: "You are a thief! You stole my money!
You are a liar!"
Court: Objection overruled!

Is the testimony of the witness excludable as hearsay?


It is not. The testimony is not hearsay. It is not offered to
HEARSAY EVIDENCE 357

prove that the complaining witness is a "thief" or a "liar." It


is offered to prove the tenor of the statement, i.e., that the
statement was made. W h a t is significant is the making of
the statement. Beyond the mere fact that the words were ut-
tered, the statement proves nothing as to its averments be-
cause the out-of-court declaration's relevance is independent
of the truth of its assertions. In a prosecution for defamation,
an important issue is whether or not the words constituting
the offense were uttered. T h e r e is no other inference required.
Once there is proof that the words were uttered then the legal
consequences of the mere making of the statement will follow.
T h e only question remaining which is a subject matter best
for another story is: Does the accused have a defense?

Independently Relevant Statements


1. It is doctrinal that a declarant's statement may have
relevance to an issue in a case from the mere fact that the
words w e r e spoken or written, irrespective of the truth or falsi-
ty of the assertion. This category of a non-hearsay out-of-court
statement together with the previously discussed categories
are commonly known in this jurisdiction under the general
term, "independently relevant statements." They are called as
such because the statements are admissible for some relevant
reason independent of their truth or falsity. They are relevant
because the statement itself is either the very fact in issue or a
circumstantial evidence of a fact in issue. Offering evidence to
show the state of mind of the declarant or the reaction of the
hearer involve statements which are circumstantial evidences
of the state of mind of the declarant or the state of mind of
the listener as an effect of the statement uttered out-of-court.
Some authorities call independent relevant statements as the
'operative acts' which give rise to legal consequences (29 Am
Jur 2d, 709).
2. An independently relevant statement is not hearsay
and is therefore not banned under the hearsay evidence rule.
Hence, a witness may be asked questions concerning what the
accused told him that other persons were involved in the con-
356 EVIDENCE
(The Bar Lectures Series)

spiracy if the purpose of the testimony is not to prove that


such persons were really involved in the conspiracy but only
to prove what the accused had mentioned (People v. Cusi, Jr,
14 SCRA 944). Newspaper accounts of an incident are hear-
say if offered to prove the truth of the accounts but are not
hearsay if offered for a purpose other than the truth of the
matter asserted. The newspaper account is admissible only to
prove that there was a publication and merely the tenor of the
news, but not its truth (Feria v. Court of Appeals, 325 SCRA
525).
3. Independently relevant statements actually come in
various shapes and shades because of the different reasons
for which such statements are offered. They however, have
a unifying element. That element is: Their relevance to the
matter in issue is not dependent on their truth or falsity. Its
relevance lies in its tenor or the fact that it was said.
4. An out-of-court statement introduced in court to
impeach a previous witness is another form of independently
relevant statement, and an example of how an out-of-court
declaration may be used for a non-hearsay purpose.

A hypothetical will illustrate our point. L e t us say, a


prosecution witness in the stand testified: "I saw with my own
eyes when the accused drew a pistol from his waist and aimed
it at the victim. I was there when he fired. I was there when
the victim fell to the ground. I was there when blood flowed
out of his blasted chest. I was there when the victim gasped
his last breath! I was there. I saw it all!" T h e witness, whom
we shall call M r . A, is testifying not on the basis of what an-
other person saw. He is testifying on facts which he knows of
his own knowledge just what the Rules of Court say he should.
This is not hearsay and an objection on that ground will have
to be overruled.

However, without the witness knowing it, someone he


didn't expect to be in the audience heard everything he said.
That someone couldn't believe what he just heard straight
from the witness's mouth! L e t us call him M r . B. T u g g i n g at
the shirt of the guy next to him he exclaimed, "I know the wit-
HEARSAY EVIDENCE 359

ness. He is a homegrown kid like me. We grew up together in


the same block. W h a t he just told the court was not what he
told me a day after the killing!"

Our next scene is of M r . B now sitting on the witness


stand. In the previous cross-examination of M r . A, he denied
ever talking to M r . B who takes his oath and after all those
predicates for the questions w e r e laid, come the questions
from the defense counsel:

"Did you hear what Mr. A tell this court about what
he said he saw on the day the victim was killed?"
"Yes, sir," comes the confident reply.
"What can you say about his testimony?"
"The things he said in court were not what he told
me about the incident!"
"What did he tell you?"
"Objection. Hearsay," barks the prosecutor.
If the judge is awake, and judges are always awake
even if sometimes you think they aren't, he will ask before
ruling on the objection, "What is the purpose of your ques-
tion, counsel?"
"To show that Mr. A's testimony is inconsistent with
what he told Mr. B one day after the incident, Your Hon-
or."
"Objection overruled. Witness may answer."
"Sir he told me: I did not see with my own eyes when
the accused drew a pistol from his waist and aimed it at
the victim. I was not there when he fired. I was not there
when the victim fell to the ground. I was not there... I was
not there. I was somewhere."

Of course, Mr. A's supposedly eyewitness account is im-


portant in the lawsuit. But there is something more important
than the credibility of the testimony. It is the credibility of
the witness himself. From the moment the witness takes his
oath on the stand, even before he utters his first words on the
stand, his credibility is automatically put in issue. That the
360 EVIDENCE
(The Bar Lectures Series)

credibility of a witness is always an issue in every litigation


is a given. It is basic. Of course, a testimony that attacks the
credibility of the witness is equally relevant especially when
that witness claims to have personal knowledge of the facts
testified to. Prior out-of-court declarations of that same wit-
ness inconsistent with his testimony on the stand are admis-
sible, not to prove the truth of what was said. In our example,
the testimony of Mr. B on the declarations of M r . A was not
introduced to prove that M r . A did not indeed witness the kill-
ing of the victim by the accused. Whether or not the statement
of Mr. A is true is irrelevant. W h a t is important is that the
statements were uttered. Because they were uttered, M r . A
had made inconsistent statements and because he did, it is
not now easy to believe M r . A's testimony. He may have wit-
nessed the incident. He may have not. We do not know. We
know one thing for sure: Mr A ' s credibility has been impaired.
In the language of the rules, M r . A has been "impeached."

5. The ban on hearsay evidence does not cover inde-


pendently relevant statements, i.e., those statements which
are relevant independently of whether they are true or not.
The case of Estrada v. Desierto (356 SCRA. 108), classifies in-
dependently relevant statements into two ( 2 ) classes:
( a ) those statements which are the very facts in is-
sue; and

(b) those statements which are circumstantial evi-


dence of the fact in issue.

The second class includes the following:


( a ) statements of a person showing his state of
mind, that is, his mental condition, knowledge, belief,
intention, ill-will and other emotions;

(b) statements of a person which shows his physi-


cal 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, that is
knowledge, belief, motive, good or bad faith, etc. of the
latter;
HEARSAY EVIDENCE 361

( d ) statements which may identify the date, place


and person in question; and

( e ) statements showing the lack of credibility of a


witness.

B a r 2003
" x x x The prosecution presented in evidence a news-
paper clipping of the report to the reporter who was pres-
ent during the press conference stating that X admitted
the robbery, x x x "
(a) Is the newspaper clipping admissible against
X?
(b) xxx

Suggested answer:
The newspaper clipping is admissible as non-hear-
say if offered for the purpose of showing that the state-
ment of X was made to a reporter regardless of the truth
or falsity of the statement. The admissibility depends now
on whether the fact that the statement was made is rel-
evant to the case. If it is relevant, it is admissible as an
independent relevant statement (a non-hearsay declara-
tion). It would be hearsay if offered to prove the truth that
X was the robber.
Note: The statement of X to a reporter may be ad-
mitted as an admission under Sec. 26 of Rule 130. This
answer should also be considered by the examiner be-
cause it has a clear legal basis.

Exceptions to the Hearsay Rule


1. The Rules of Court enumerates the following excep-
tions to the hearsay rule:
( a ) Dying declarations (Sec. 37, Rule 130)
(b) Declaration against interest (Sec. 38, Rule 130)
(c) Act or declaration against pedigree (Sec. 39,
Rule 130)
362 EVIDENCE
(The Bar Lectures Series)

( d ) Family reputation or tradition regarding pedi-


gree (Sec. 40, Rule 130)
( e ) Common reputation (Sec. 41, Rule 130)
(f) Part of the res gestae (Sec. 42, Rule 130)
( g ) Entries in the course of business (Sec. 43, Rule
130)
(h) Entries in official records (Sec. 44, Rule 130)
(i) Commercial lists and the like (Sec. 45, Rule
130)
(j) Learned treatises (Sec. 46, Rule 130
( k ) Testimony or deposition at a former trial (Sec.
47, Rule 130).
2. It is not correct to assert that the exceptions to the
hearsay rule are not hearsay. T h e y are hearsay evidence but
they are deemed admissible hearsay for certain reasons. U n -
der appropriate circumstances, a hearsay statement may pos-
sess circumstantial guarantees of trustworthiness sufficient
to justify non-production of the declarant in person (Advisory
Committee Notes to Federal Rules of Evidence cited in 29 Am
Jur 29, 726). Another justification may be simply dictated by
the necessity to admit an out-out-court statement (29A Am
Jur 214). Declaration against interest, act or declaration
about pedigree, entries in the course of business, entries in
official records, commercial lists, and learned treatises are ex-
amples of hearsay evidence where there exist a diminished
risk of untrustworthiness because the motivation to lie is less.
Some statements may be admissible where no other or better
evidence is available to prove an act, such that their admissi-
bility is predicated on a compelling necessity. A dying declara-
tion is admissible largely under this rationale.

Dying Declarations
1. A famous exception to the hearsay evidence rule
called "dying declarations" is described in Sec. 37 of Rule 130
as follows:
HEARSAY EVIDENCE 363

"Sec. 37. Dying declaration. The declaration of a


dying person, made under the consciousness of an im-
pending 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."

2. As an exception to the rule against hearsay evidence,


a dying declaration or ante mortem statement is evidence of the
highest order and is entitled to utmost credence since no per-
son aware of his impending death would make a careless and
false accusation. It is thus admissible, to provide the identity
of the accused and the deceased, to show the cause of death of
the deceased, and the circumstances under which the assault
was made upon him. T h e reasons for its admissibility is neces-
sity and trustworthiness. Necessity, because the declarant's
death renders it impossible his taking the witness stand, and
it often happens that there is no other equally satisfactory
proof of the crime; allowing it, therefore, prevents a failure of
justice. A n d trustworthiness, because the declaration is made
in extremity, when the party is at the point of death and when
every motive to falsehood is silenced and the mind is induced
by the most powerful considerations to speak the truth. The
law considers the point of death as a situation so solemn and
awful as creating an obligation equal to that which is imposed
by an oath administered in court (People v. Cerilla, 539 SCRA
251).

Of the doctrines that authorize the admission of special


classes of hearsay, the doctrine relating to dying declarations
is the most mystical in its theory and, traditionally, among
the most arbitrary in its limitations. In the United States, the
notion of the special likelihood of truthfulness of deathbed
statements was widespread long before the recognition of a
general rule against hearsay in the early 1700s. Not surpris-
ingly, nearly as soon as we find a hearsay rule, we also find
an exception for dying declarations (People v. Cerilla, G.R. No.
177147, November 28, 2007).
3. As originally conceived, dying declarations were ad-
missible only in criminal cases, particularly homicide cases.
364 EVIDENCE
(The Bar Lectures Series)

Courts in the early days anchored much of their support for


the dying declaration exception on the need to uphold justice.
Courts at early common law reasoned out that the culprit
would go free if the victim's dying declarations were excluded
and it is in homicide cases where the necessity for admission
of a dying declaration is clear and pressing. Thus, it is not
difficult to understand why at common law, the dying decla-
ration exception was made available only in homicide cases, a
generic term which of course includes murder and parricide.
Nearly all courts, based upon the theory of necessity, refused
to recognize a dying declaration in civil cases, or even in those
criminal cases where homicide is not an integral part of an
offense (Ross v. Cooper, 38 N.D. 173,164 N.W. 679; Winfrey v.
State, 174 Ark. 729, 296 S.W.; cited in McCormick, Evidence,
831). Thus, the dying declaration exception was not available
in rape, abortion, kidnapping, burglary cases or any civil case.
The Federal Rules however, did not adhere to the common law
limitation on homicide cases. If the declarant is unavailable
as a witness, the statement made under a consciousness of
an impending death was admissible also in a civil case where
there is an issue concerning the cause or circumstances of
such death ( F R E , 804b).

4. A similar rule confining admissibility to criminal


cases, prevailed in our jurisdiction until the changes in our
Rules of Evidence in 1989 allowed the use of dying declara-
tions even in non-criminal cases. T h e former rule (Sec. 31,
Rule 131), limited the admissibility of dying declarations to a
criminal case. As presently worded, Sec. 37 of Rule 130 pro-
vides that 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. In
doing so, the Rules of Court no longer places any limitation on
the type of action in which a dying declaration may be intro-
duced. As long as the relevance is clear, a dying declaration
may now be introduced in a criminal or a civil action and the
relevance is satisfied where the subject of inquiry is the death
of the declarant himself.
HEARSAY EVIDENCE 365

5. A n y objection to a dying declaration may be pre-


mised on any of the requisites for its admissibility embodied
in Sec. 37 of Rule 130. Thus, counsel who wants a dying decla-
ration excluded must have to deal with the primary question
of whether or not the evidentiary foundations for the introduc-
tion of a dying declaration where met.

T h e basic objection to a dying declaration is expressed


in the words, "Objection, Y o u r Honor. There is no foundation
for the declaration." Some would prefer, "Objection, no basis."
Others would say, "Objection, predicate not laid." Whatever
the lawyer's preference is, the message is the same: The pro-
ponent has not established the essential elements of a dying
declaration hence, the objection. T h e objecting counsel must
however, specify the reason for the lack of a foundation re-
quirement. Thus, counsel would say, "Objection. No founda-
tion. Declarant was not under consciousness of an impending
death."

6. W h e n the prosecutor attempts to introduce a dying


declaration, the very first question that the defense should
ask is whether or not the declarant, at the time the statement
was made, knew or believed that he was going to die. When?
N o t next week. N o t next month. N o t next year. But very soon
or now! This constitutes the objector's first line of defense. Sec.
37 of Rule 130 has an eye-catching name for this knowledge or
belief. It calls it, "consciousness of an impending death."
Under the rules, it is evident that a mere consciousness
of death is not enough because everyone of us, at one time
or another, has become conscious of death. The kind of death
of which the declarant should be conscious of is a death that
is impending. The declarant must be conscious that death is
near and certain, that "death is near at hand, and what is
said must have been spoken in the hush of its impending pres-
ence."
The patient must have spoken with "the consciousness
of a swift and certain doom" (J. Cardozo in Shepard v. United
States, 290 U.S. 96). To render a dying declaration a