OUTLINE/ LECTURE ON

EXCEPTIONS TO THE HEARSAY RULE,

OPINION & CHARACTER EVIDENCE

By: Atty. Eduardo T. Reyes, III

i. Subject Index

1.A.Exceptions to the Hearsay Rule

A. Dying Declaration
B. Part of the RES GESTAE
C. Entries in the Course of Business
D. Declaration Against Interest
E. Act or Declaration about Pedigree
F. Family Reputation or Tradition Regarding Pedigree
G. Common Reputation
H. Entries in Office Records
I. Learned Treatises
J. Testimony or deposition at a former proceeding

1.B. Opinion Evidence

1.C. Character Evidence

1.A. Exceptions to the Hearsay Rule

A. Dying Declaration

Section 37, Rule 130. Dying Declaration. – The declaration of a dying person, made under the
consciousness of an impending death, may be received in any case wherein his death is the
subject of inquiry, as evidence of the cause and surrounding circumstances of such death.

Reason for Admissibility. – “The reasons for the admissibility of dying declarations as an
exception to the hearsay rule are (a) NECESSITY and (b) TRUSTWORTHINESS. Necessity,
because the declarant’s death renders impossible his taking the witness stand; and it often
happens that there is no other equally satisfactory proof of the crime. Hence it is allowed to
prevent a failure of justice. And trustworthiness, for in the language of Lord Baron Eyre, the
declaration is made in extremity, when the party is at the point of death and every hope of this
world is gone; when every motive to falsehood is silenced, and the mind is induced by the most
powerful considerations to speak the truth. A situation so solemn and awful is considered by
the law as creating an obligation equal to that which is imposed by an oath administered in
court.”1
 “Dying declarations are admitted on the theory that the conscious danger of impending
death is equivalent to the sanction of an oath.”2

Dying declaration defined. “A dying declaration is a statement made by the victim of

homicide, referring to the material facts which concern the cause and circumstances of the
killing and which is uttered under a fixed belief that death is impending and is certain to follow
immediately, or in a very short time, without an opportunity of retraction and in the absence of
all hopes of recovery.”

Requisites.

“A dying declaration, although generally inadmissible as evidence due to its hearsay character,
may, nonetheless, be admitted when the following requisites concur, namely:

(a) the declaration concerns the cause and the surrounding circumstances of the declarant’s
death;
(b) it is made when death appears to be imminent and the declarant is under a consciousness
of an impending death;
(c) the declarant would have been competent to testify had he or she survived; and
(d) the dying declaration is offered in a case in which the subject of inquiry involves the
declarant’s death”.3

TEST/ GAUGE IS “STATE OF MIND” OF DECLARANT; NOT HIS CHANCES OF SURVIVAL FROM A
MEDICAL PERSPECTIVE

CONSCIOUSNESS OF IMPENDING DEATH REQUIREMENT. – The rule is that, in order to make a

dying declaration admissible a fixed belief in inevitable and imminent death must be entered by
the declarant. It is the belief in impending death and not the rapid succession of death, in point
of fact, that renders the dying declaration admissible. It is not necessary that approaching
death be presaged by the personal feelings of the deceased. The test is whether or not the
declarant has abandoned hope of living and looked on death as certainly impending. If so, his
declarations are competent, though he is brought to that state of mind by statements made to
him by nurses or physicians.”4

Xxx

Proof of consciousness of impending death. “The declarant’s belief in the imminence of his
death may be shown by his own statements, or through circumstantial evidence, such as the
nature of the wounds, opinions of the attending physician, statements made by others in the
declarant’s presence, or the fact that last rites were administered. It must be inferable from the
evidence presented that declarant had personal knowledge of the facts contained in the
statement seeking admission. The statement of the declarant shot in the back by an unseen
assailant naming the defendant, as his murderer cannot be admitted.”5
Hypotheticals:

o Is there a requirement that the victim/ declarant must die immediately after he makes his
dying declaration?
o What if the victim is not severely wounded but he is pessimistic about his chances of
surviving and makes a dying declaration, then he recovers but only for a while because he
eventually dies a month or two after, would that render inadmissible his dying declaration?
o What if the victim is AMBIVALENT of his chances of surviving but he is seriously wounded,
what would you make of his dying declaration?

NO FIXED TIME. “No time is fixed, either by the statute, or by judicial decision, within
which the declarant must have died in order for his dying declaration to be admissible in
evidence. We have no decisions declaring the meaning of the phrase “a dying person”. It does
not mean that in order to make such declaration admissible the person making it must be at
the time in the act of expiring or in the final struggle. It is seldom that a human being in that
state of dissolution is capable of making any statement whatsoever in the nature of a
connected or reliable narrative of account of a past transaction. To admit such declarations
only when made by a person in that condition would practically exclude them altogether, or
render them useless for any purpose. By this rule it is not necessary that the person should be
at the time in the throes of death, or that he should die immediately, or within any specified
time thereafter, in order to give the declaration probative force. Where a person has been
fatally wounded, is in sore distress therefrom, and believes that he will not recover and is soon
to die, his statement made in this belief relating to the cause of his injury is admissible, if it
appears that he subsequently died from the direct effects of the wound, although he may have
revived after making the statements or may have lived a considerable time thereafter, and may
have again begun to hope for recovery. Such person is deemed “a dying person” within the
meaning of the rule from the time the wound is received until death results from the injury, and
his statement during that period made in view of death and with the belief that it is near at
hand, may be proven to establish the cause of death”.6

Xxx

“In a case, the deceased received eighteen wounds which caused his death two days
later. When asked, before his dying declaration was taken, about his condition and whether he
believed he was going to die of his wounds, his answer was “Opo, seguro po”. The admission of
the dying declaration was objected to on the ground that the admission of the deceased means
that he believes that he might die but not that he would surely die. Held: While the words
“Opo, seguro po” may mean that the declarant would not surely die, that may also mean that
he was sure or certain of his death. At any rate, as they could mean both things, we believe
that, considering the seriousness of his wounds, which caused his death two days later, the
deceased signified by these words the belief that he was going to die.”7
 INSTANCES WHEN DYING DECLARATIONS WERE REJECTED.-

 “When it appears that the decedent at the time of making the dying declarations which are
offered in evidence had any expectation or hope of recovery, however slight it may have been,
though death actually ensued, the declarations, according to overwhelming weight of
authority, are inadmissible in evidence.” 8
 Opinion in dying declarations are inadmissible. It is indispensable that the dying declaration
should consist solely of facts, and not conclusions, mental impressions or opinions. The
declarations should not contain matter which would be excluded if the declarant were a
witness.9

IMPEACHMENT OF DYING DECLARATIONS

 A dying declaration stands upon the same footing as the testimony of a witness sworn in the
case. Consequently, it may be impeached by the same means employed to impeach the latter. It
may be shown that the declarant has been convicted of a crime involving moral turpitude, for
the purpose of impeaching the credibility of his dying declaration.
 Or by presenting experts to prove that the injuries sustained by the declarant were
calculated to derange his mental faculties.

B. PART OF RES GESTAE

Section 42, Rule 130. – Statements made by a person while a startling occurrence is taking
place or immediately prior or subsequent thereto with respect to the circumstances thereof,
may be given in evidence as part of res gestae. So, also, statements accompanying an
equivocal act material to the issue, and giving it a legal significance, may be received as part
of the res gestae.

“Res Gestae; Meaning.”- “Res gestae is from the Latin meaning “things done” and includes the
circumstances, facts and declarations incidental to the main fact or transaction, necessary to
illustrate its character, and also includes acts, words and declarations which are so closely
connected therewith as to constitute a part of the transaction. The expression, res gestae, as
applied to a crime, means the complete criminal transaction from its beginning or starting
point in the act of the accused until the end is reached. What in any case constitutes the res
gestae of a crime depends wholly on the character of the crime and the circumstances of the
case”. 10

Res gestae is in law regarded as the actual facts expressing themselves through the mouth
of a witness.

- When dying declaration falls short of requisites, the statement may constitute as part of res
gestae and therefore still admissible. Where are man after having been seriously wounded was
taken to a municipal building and there he told a person in authority that he had been wounded
by the accused that statement, although not admissible as dying declaration because it was not
made in the belief that the declarant was about to die, yet it is admissible as part of the res
gestae.11

Distinguished from Dying Declaration.

1. Dying declaration may be made only by the victim while a statement as part of res gestae
may be that of the killer himself after or during the killing, or that of a third person. 12
2. In dying declaration, “a sense of impending death substitutes for an oath, while in res
gestae, the “event itself speaks” It is the transaction speaking as distinguished from the
witness.
3. Res gestae may precede, accompany, or follow, as events occurring as a part of the
principal act; dying declaration is confined to matters occurring after the homicidal act.13
4. Res gestae is admissible even if a) Hearsay; b) tends to prove another offense; c) declarant
would have been an incompetent witness; d) violates the best evidence rule; e) although does
not comply with requirements of dying declaration; and f) self-serving and explanatory.14

Three types.

a) Statements made by a person while a startling occurrence is taking place or immediately

prior or subsequent thereto with respect to the circumstances thereof, may be given in
evidence as part of the res gestae; (also known as Spontaneous statements)

b) Acts and circumstances which are incidents of a particular litigated act and which are
illustrative of such act;

c) Statements accompanying an equivocal act material to the issue, and giving it a legal
significance, may also be received as part of the res gestae. Statements accompanying an
equivocal act are called by some writers as “verbal facts” or “verbal acts”. 15 (also known as
“Verbal Acts”).

a.1.) Spontaneous statements- A spontaneous statement may be defined as a statement or

exclamation made immediately after some exciting occasion by a participant or spectator and
asserting the circumstances of that occasion as it is observed by him.16

Requisites.

HEARSAY RULE; PART OF THE RES GESTAE; REQUISITES.- The requisites of res
gestae as an exception to the hearsay rule are (1) that the principal act or the res gestae be a
startling occurrence; (2) the statement is spontaneous or was made before the declarant
had time to contrive or devise, and the statement is made during the occurrence or
immediately prior or subsequent thereto; and (3) the statement made must concern the
occurrence in question and its immediately attending circumstances.17
-Startling occurrence necessary- In order that spontaneous statements may be received in
evidence as part of the res gestae, it is essential that the spontaneous exclamation should have
been caused by something “startling enough to produce nervous excitement, and to keep the
will dormant so far as any deliberation in concocting matters for speech or selecting words is
concerned. Men do not, under stress of great excitement in such conditions, frame up
evidence for their future purposes, and for this reason such things are competent either for or
against one charged with crime. Such occurrences are a part of the thing itself, and are so
intimately and closely connected in time with it as not to be severable from it.18

-Interval of Time between the startling occurrence and the spontaneous statement. –
Experience shows that a startling occurrence may extend its exciting influence over a
subsequent period of time which may be long or short according to the nature and
development of the circumstances. If the statements were made while the nervous excitement
was still working on the declarant’s mind, they are admissible; otherwise, they are not. Briefly
stated, the rule is that the statements, to be admissible, should have been made before there
had been time or opportunity to devise or contrive anything contrary to the real facts that
occurred. What the law altogether distrusts is not afterspeech but afterthought.19

e.g. “An alleged rape victim, a 52- year old widow, who had been married three times, did not
immediately go home after the alleged sexual encounter. She took a walk. Spent some time
thinking of what to do. Her clothes were muddy. She had some bruises on her body and back
because she was lying down on the ground during the sexual intercourse and their passionate
interlude. When she reached home, she revealed what happened to her daughter. Held: She
had enough time to make a decision on what will be the nature of her story. Her revelation
cannot thus be categorized as part of the res gestae.”20

- A requisite of a res gestae statement is its SPONTANEITY, while under the influence of the
transaction, but such spontaneity of expression does not per se determine “res gestae” x x x
The spontaneous, unpremeditated character of the declarations and the fact that they seem to
be the natural and necessary concomitants of some relevant transaction in which their author
was a participant, constitute the basis for their admission as evidence.21

a.2.) Acts and circumstances which are incidents of a particular litigated act.- “It is well settled
that the term “res gestae” includes all those acts and circumstances which are incidents of a
particular litigated act and which are illustrative of such act. Thus, it is competent to prove by a
witness that shortly after a homicide a party other than the deceased or defendant had
wounds upon his person and was bleeding. Similarly, upon a trial for murder, where the
evidence shows that the accused, after being knocked down by the deceased, went away and
armed himself and returned within two to five minutes and shot and killed the deceased upon
the renewal of the quarrel, the particulars of the whole transaction are admissible in evidence
as being parts of the res gestae. Evidence that children of a passenger were crying and much
alarmed when he was ejected from the street car is also admissible as part of the res gestae on
the question of the conductor’s manner and actions in effecting the expulsion. In an action to
 recover for an assault, evidence of a quarrel between the parties to the suit immediately
preceding and leading up to the alleged assault is admissible as a part of the res gestae.”22

- Writings may become a part of the res gestae and admissible in evidence where they are
incidents of a transaction and a part thereof. Thus, where the testimony shows that one of
the parties sent a message to the other side concerning the matter in dispute, the answer
thereto is, according to some decisions, part of the res gestae. A written confession by an
embezzling employee, made while the employment is till in force, in response to the
employer’s inquiries is also admissible in evidence as part of the res gestae, in an action by
the employer to recover for the embezzlement upon hi bond, which is conditioned to make
good any embezzlement committed during the life of such bond.”23

a.3.) verbal acts. – Verbal acts are utterances which accompany some act or conduct to which
it is desired to give a legal effect. When such act has intrinsically no definite legal significance,
or only an ambiguous one, its legal purport or tenor may be ascertained by considering the
words accompanying it, and these utterances thus enter merely as a verbal part of the act.24

- Requisites.

a) The act characterized by the verbal acts must be equivocal or ambiguous in tenor
b) The verbal acts must characterize or explain the equivocal or ambiguous act;
c) The equivocal or ambiguous act must be material to the issue; and
d) The verbal act must be contemporaneous with and accompany the equivocal or ambiguous
act.25

 In a variety of issues, where some person’s conduct is material under the issues, dumb conduct
alone may be ambiguous. For example, in a business office we may observe P. handing money
to D; But is P paying a debt? Or is her restoring a deposit? Or, is he lending money? Or, is he
merely showing D some supposedly counterfeit money? Or, is he handing over for safekeeping
some money picked up from the floor and lost by someone else? The legal effect of the handing
the money is incomplete without the words accompanying it; hence the words P and of D are
admissible as verbal parts of the act. And this result is irrespective of whether we believe or not
any incidental assertions, e.g. P may say “this is all the money I collected today from my
customers,” or he may say, “You have six hundred dollars more of mine deposit”; but we do
not use his words as testimony to these facts; we use them only as completing the conduct, and
thus as giving to the total conduct the legal effect of a loan or a payment or deposit.”26

C. ENTRIES IN THE COURSE OF BUSINESS. –

Section 43, Rule 130. Entries made at, or near the time of the transaction to which they refer,
by a person deceased, or unable to testify, who was in a position to know the facts therein
stated, may be received as prima facie evidence, if such person made the entries in his
professional capacity or in the performance of duty and in the ordinary or regular course of
business or duty.

Requisites & Relation to Rule on Authentication.

“The mystery shrouding the RTCs soft treatment of the Prosecutions flawed
presentation was avoidable simply by the RTC adhering to the instructions of the rules
earlier quoted, as well as with Section 22 of Rule 132 of the Rules of Court, which
contains instructions on how to prove the genuineness of a handwriting in a judicial
proceeding, as follows:

Section 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 witness has acted or been charged, and has thus acquired
knowledge of the handwriting of such person. Evidence respecting the handwriting may
also be given by a comparison, made by the witness or the court, with writings
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. (Emphases supplied)

If it is already clear that Go and Guivencan had not themselves seen the
execution or signing of the documents, the Prosecution surely did not
authenticate Exhibits B to YY and their derivatives conformably with the aforequoted
rules. Hence, Exhibits B to YY, and their derivatives, inclusive, were inescapably bereft
of probative value as evidence. That was the only fair and just result, as the Court held
in Malayan Insurance Co., Inc. v. Philippine Nails and Wires Corporation:[38]

On the first issue, petitioner Malayan Insurance Co., Inc., contends that
Jeanne Kings testimony was hearsay because she had no personal knowledge of
the execution of the documents supporting respondents cause of action, such as
the sales contract, invoice, packing list, bill of lading, SGS Report, and the Marine
Cargo Policy. Petitioner avers that even though King was personally assigned to handle
and monitor the importation of Philippine Nails and Wires Corporation, herein
respondent, this cannot be equated with personal knowledge of the facts which gave
rise to respondents cause of action. Further, petitioner asserts, even though she
personally prepared the summary of weight of steel billets received by respondent, she
did not have personal knowledge of the weight of steel billets actually shipped and
delivered.

At the outset, we must stress that respondents cause of action is founded on

breach of insurance contract covering cargo consisting of imported steel billets. To hold
petitioner liable, respondent has to prove, first, its importation of 10,053.400 metric tons
of steel billets valued at P67,156,300.00, and second, the actual steel billets delivered
to and received by the importer, namely the respondent. Witness Jeanne King, who was
assigned to handle respondents importations, including their insurance coverage, has
personal knowledge of the volume of steel billets being imported, and therefore
competent to testify thereon. Her testimony is not hearsay, as this doctrine is defined in
Section 36, Rule 130 of the Rules of Court. However, she is not qualified to testify on
the shortage in the delivery of the imported steel billets. She did not have
personal knowledge of the actual steel billets received. Even though she
prepared the summary of the received steel billets, she based the summary only
on the receipts prepared by other persons. Her testimony on steel billets received
was hearsay. It has no probative value even if not objected to at the trial.

On the second issue, petitioner avers that King failed to properly authenticate
respondents documentary evidence. Under Section 20, Rule 132, Rules of
Court, before a private document is admitted in evidence, it must be
authenticated either by the person who executed it, the person before whom its
execution was acknowledged, any person who was present and saw it executed,
or who after its execution, saw it and recognized the signatures, or the person to
whom the parties to the instruments had previously confessed execution
thereof. In this case, respondent admits that King was none of the aforementioned
persons. She merely made the summary of the weight of steel billets based on
the unauthenticated bill of lading and the SGS report. Thus, the summary of steel
billets actually received had no proven real basis, and Kings testimony on this
point could not be taken at face value.

xxx Under the rules on evidence, documents are either public or private. Private
documents are those that do not fall under any of the enumerations in Section 19, Rule
132 of the Rules of Court. Section 20of the same law, in turn, provides that before any
private document is received in evidence, its due execution and authenticity must be
proved either by anyone who saw the document executed or written, or by evidence of
the genuineness of the signature or handwriting of the maker. Here, respondents
documentary exhibits are private documents. They are not among those
enumerated in Section 19, thus, their due execution and authenticity need to be
proved before they can be admitted in evidence. With the exception concerning
the summary of the weight of the steel billets imported, respondent presented no
supporting evidence concerning their authenticity. Consequently, they cannot be
utilized to prove less of the insured cargo and/or the short delivery of the
imported steel billets. In sum, we find no sufficient competent evidence to prove
petitioners liability.

That the Prosecutions evidence was left uncontested because petitioner decided
not to subject Guivencan to cross-examination, and did not tender her contrary
evidence was inconsequential. Although the trial court had overruled the seasonable
objections to Guivencans testimony by petitioners counsel due to the hearsay character,
it could not be denied that hearsay evidence, whether objected to or not, had no
probative value.[39]Verily, the flaws of the Prosecutions evidence were fundamental and
substantive, not merely technical and procedural, and were defects that the adverse
partys waiver of her cross-examination or failure to rebut could not set right or cure. Nor
 did the trial courts overruling of petitioners objections imbue the flawed evidence with
any virtue and value.

Curiously, the RTC excepted the entries in the ledgers from the application of the
hearsay rule by also tersely stating that the ledgers were prepared in the regular course
of business.[40]Seemingly, the RTC applied Section 43, Rule 130 of the Rules of
Court, to wit:

Section 43. Entries in the course of business. Entries made at, or near the time of
the transactions to which they refer, by a person deceased, or unable to testify, who
was in a position to know the facts therein stated, may be received as prima
facie evidence, if such person made the entries in his professional capacity or in the
performance of duty and in the ordinary or regular course of business or duty.

This was another grave error of the RTC. The terse yet sweeping manner of
justifying the application of Section 43 was unacceptable due to the need to show the
concurrence of the several requisites before entries in the course of business could be
excepted from the hearsay rule. The requisites are as follows:

(a) The person who made the entry must be dead or unable to testify;

(b) The entries were made at or near the time of the transactions to which they refer;

(c) The entrant was in a position to know the facts stated in the entries;

(d) The entries were made in his professional capacity or in the performance of a duty,
whether legal, contractual, moral, or religious;

(e) The entries were made in the ordinary or regular course of business or duty. [41]

The Court has to acquit petitioner for failure of the State to establish her guilt
beyond reasonable doubt. The Court reiterates that in the trial of every criminal case, a
judge must rigidly test the States evidence of guilt in order to ensure that such evidence
adhered to the basic rules of admissibility before pronouncing an accused guilty of the
crime charged upon such evidence. The failure of the judge to do so herein nullified the
guarantee of due of process of law in favor of the accused, who had no obligation to
prove her innocence. Her acquittal should follow.”27

D. DECLARATION AGAINST INTEREST. –

Sec. 38, Rule 130. The declaration made by a person deceased or unable to testify,
against the interest of the declarant, if the fact asserted in the declaration was at the time it
was made so far contrary to declarant’s own interest, that a reasonable man in his position
would not have made the declaration unless he believed it to be true, may be received in
evidence against himself or his successors in interest and against third persons.
Distinguished from Admission.
o Admission is not necessarily against the interest of the person who made the admission
o An admission may be used although the admitter is alive, while the present exception
refers to a declaration against the interest of a deceased person
o An admission may be used may only be used against the admitter and those identified
with him in legal interest while a declaration against interest is admissible against third
persons.28

Requisites.

a) Declarant must not be available to testify-

b) Declaration must concern a fact cognizable by declarant
c) Circumstances must render it improbable that a motive to falsify existed

E. ACT OR DECLARATION ABOUT PEDIGREE

Section 39, Rule 130. Act or declaration about pedigree. — The act or declaration of a
person deceased, or unable to testify, in respect to the pedigree of another person related
to him by birth or marriage, may be received in evidence where it occurred before the
controversy, and the relationship between the two persons is shown by evidence other
than such act or declaration. The word "pedigree" includes relationship, family genealogy,
birth, marriage, death, the dates when and the places where these fast occurred, and the
names of the relatives. It embraces also facts of family history intimately connected with
pedigree.

“Pedigree” ; Meaning. – Pedigree is the history of family descent which is transmitted from one
generation to another by both oral and written declarations and by traditions.

Requisites.

a) Declarant is dead or unable to testify – It is a guiding principle applicable in pedigree as in

other cases, that declarations will not be received when better evidence is available. As a
general rule, declarations as to pedigree are not admissible unless declarant is dead or unable
to testify.30

b) Necessity that pedigree be in issue- It has been laid down that declarations as to pedigree
itself is directly in issue. However, the rule adopted in many cases is that the fact that pedigree
is relevant to the issue is sufficient to admit the evidence, and that declaration as to matters of
genealogy or facts incidentally connected therewith are admissible as proof of the fact or facts
contained therein in any case in which such facts are relevant , regardless of whether pedigree
is separately in issue.
Ex. Mother who is alive declares that she and the deceased were married. The putative child
claims otherwise because he has a witness that says that when the alleged father was still alive,
he declared that he was never married to the mother.

c) Declarant must be a relative of the person whose pedigree is in question- So far as blood
relatives, however, are concerned the law does not lay down the degree of relationship that
must be established between the person whose pedigree is in question and the declarant, in
order that the declarations of the latter may be admissible. It is enough if some relationship is
shown, although the declarations of very remote relatives might be entitled to very little
weight.

d) Declaration must be made before the controversy occurred.- The rule which permits
declarations to be received of proof of pedigree requires that the declarations must have been
made ANTE LITEM MOTAM- that is, before the controversy, and under such circumstances that
the person making them could have no motive to misinterpret the facts. In other words, in
order for a declaration as to pedigree to be admissible, it is necessary that the declarant should
have been disinterested to the extent of having no motive which can fairly be assumed to be
such as would induce him to state the fact otherwise than as he understood it. The statement
must therefore be shown to have been made ante litem motam; and a fortiori it must have
been made before commencement of a suit involving the issue to which the declaration
relates.31

e) The relationship between the declarant and the person whose pedigree is in question
must be shown by evidence other than such act or declaration.
-Exception: “Where the subject of the declaration is the declarant’s own relationship to
another person it seems absurd to require, as a foundation for the admission of the
declaration, proof of the very fact which the declaration is offered to establish. The preliminary
proof would render the main evidence unnecessary.”32

f. FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE

Section 40, Rule 130. Family reputation or tradition regarding pedigree. — The
reputation or tradition existing in a family previous to the controversy, in respect to the
pedigree of any one of its members, may be received in evidence if the witness testifying
thereon be also a member of the family, either by consanguinity or affinity. Entries in
family bibles or other family books or charts, engravings on rings, family portraits and the
like, may be received as evidence of pedigree.

O Reputation or tradition in matters of pedigree. – By reputation or tradition in matters of

pedigree is meant such declarations and statements as have come down from generation to
generation from deceased relatives in such a way that even though it cannot be said or
determined which of the deceased relatives originally made them, or was personally cognizant
of the facts therein stated, yet it appears that such declarations and statements were made as
family history, ante litem motam, by a deceased person connected by blood or marriage with
the person whose pedigree is to be established.

o Requisites.
a) There is controversy in respect to the pedigree of any members of a family.
b) The reputation or tradition of the pedigree of the person concerned existed prior to the
controversy.
c) The witness testifying to the reputation or tradition regarding the pedigree of the person
concerned must be a member of the family of said person, either by consanguinity or affinity.

Section 41, Rule 130. Common reputation. — Common reputation existing previous
to the controversy, respecting facts of public or general interest more than thirty years
old, or respecting marriage or moral character, may be given in evidence. Monuments and
inscriptions in public places may be received as evidence of common reputation.

Section 43, Rule 130. Entries in the course of business. — Entries made at, or near the
time of transactions to which they refer, by a person deceased, or unable to testify, who
was in a position to know the facts therein stated, may be received as prima facie evidence,
if such person made the entries in his professional capacity or in the performance of duty
and in the ordinary or regular course of business or duty.

REQUISITES.

a) Entries must have been made at or near the tome of the transaction to which they refer
b) Entrant must have been in a position to know the facts stated in the entries.
c) Entries must have been made by entrant in his professional capacity or in the performance
of his duty.
d) Entries were made in the ordinary or regular course of business or duty
e) Entrant must be deceased or unable to testify

Section 44. Entries in official records. — Entries in official records made in the
performance of his duty by a public officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law, are prima facie evidence of the facts
therein stated.

Requisites.

a) That the written statement was made by a public officer, or by another person specially
enjoined by law to do so;
b) That it was made by the public officer in the performance of a duty specially enjoined by
law; and,
c) That the public officer or the other person had sufficient knowledge of the facts by him
stated, which must have been acquired by him personally or through official information.

 UNAVAILABILITY OR DEATH of Entrant is not a requisite. It is not necessary to show that the
person making the entry is unavailable by reason of death, absence, etc., in order that the entry
maybe admissible in evidence, for his being excused from appearing in court in order that
public business be not deranged, is one of the reasons for this exception to the hearsay rule.33

 AUTHENTICATION. The extraordinary degree of confidence reposed in documents of a public

nature is founded principally upon the circumstance that they have been made by authorized
and accredited agents appointed for the purpose. This does not mean that authentication of
official or public documents is entirely dispensed with. There must be some proof, in
connection with the production of original papers or documents purporting to be public papers
or their identity as such. If available, such proof should come from the custodian of the record
or document. If such custodian is not available for the purpose of identification, the identity of
the document or record may be established by any witness conversant of the facts.

Journals of the legislature published under the authority of the Senate are receivable in
evidence without any further proof of their authenticity.34

NOTE: This SHOULD BE READ IN TANDEM WITH SEC. 24, RULE 132 OF THE RULES ON EVIDENCE ON
“PUBLIC DOCUMENTS AS EVIDENCE”.

Thus, in a case for land registration, in light of the overwhelming presumption of land
being owned by the State unless clearly shown to have been segregated therefrom, the
Supreme Court has consistently held that mere certifications from the CENRO or PENRO
would not be enough; but rather, no less than the very issuance of the DENR Secretary
himself “that the land subject of registration is ALIENABLE and DISPOSABLE” must be
presented or a Certified true copy of such issuance duly certified by its custodian of record.

In effect, the very issuance of the Secretary of the DENR is the “official entry in the
public record” and not the mere certification from the PENRO or CENRO.

Thus, in the case of Republic v. Lucia M. Gomez,35 the Supreme Court’s discussion on
this score was enlightening, this:

“Thus, we held that this Certification was inadequate to prove that the land was
alienable and disposable, to wit:

The well-entrenched rule is that all lands not appearing to be clearly of private
dominion presumably belong to the State. The onus to overturn, by incontrovertible
evidence, the presumption that the land subject of an application for registration is
alienable and disposable rests with the applicant.
 In this case, respondent submitted two certifications issued by the Department of
Environment and Natural Resources (DENR). The 3 June 1997 Certification by the
Community Environment and Natural Resources Offices (CENRO), Batangas City,
certified that lot 10705, Cad-424, Sto. Tomas Cadastre situated at Barangay San
Bartolome, Sto. Tomas, Batangas with an area of 596,116 square meters falls within the
ALIENABLE AND DISPOSABLE ZONE under Project No. 30, Land Classification Map
No. 582 certified [on] 31 December 1925. The second certification in the form of a
memorandum to the trial court, which was issued by the Regional Technical Director,
Forest Management Services of the DENR (FMS-DENR), stated that the subject area
falls within an alienable and disposable land, Project No. 30 of Sto. Tomas, Batangas
certified on Dec. 31, 1925 per LC No. 582.

The certifications are not sufficient. DENR Administrative Order (DAO) No.
20, 18 dated 30 May 1988, delineated the functions and authorities of the offices
within the DENR. Under DAO No. 20, series of 1988, the CENRO issues
certificates of land classification status for areas below 50 hectares. The Provincial
Environment and Natural Resources Offices (PENRO) issues certificate of land
classification status for lands covering over 50 hectares. DAO No. 38, dated 19 April
1990, amended DAO No. 20, series of 1988. DAO No. 38, series of 1990 retained the
authority of the CENRO to issue certificates of land classification status for areas below
50 hectares, as well as the authority of the PENRO to issue certificates of land
classification status for lands covering over 50 hectares. In this case, respondent
applied for registration of Lot 10705-B. The area covered by Lot 10705-B is over
50 hectares (564,007 square meters). The CENRO certificate covered the entire
Lot 10705 with an area of 596,116 square meters which, as per DAO No. 38, series
of 1990, is beyond the authority of the CENRO to certify as alienable and
disposable.

The Regional Technical Director, FMS-DENR, has no authority under DAO Nos.
20 and 38 to issue certificates of land classification. Under DAO No. 20, the Regional
Technical Director, FMS-DENR:
1. Issues original and renewal of ordinary minor products (OM) permits except
rattan;
2. Approves renewal of resaw/mini-sawmill permits;
3. Approves renewal of special use permits covering over five hectares for public
infrastructure projects; and
4. Issues renewal of certificates of registration for logs, poles, piles, and lumber
dealers.

Under DAO No. 38, the Regional Technical Director, FMS-DENR:

1. Issues original and renewal of ordinary minor [products] (OM) permits except
rattan;
2. Issues renewal of certificate of registration for logs, poles, and piles and
lumber dealers;
3. Approves renewal of resaw/mini-sawmill permits;
 4. Issues public gratuitous permits for 20 to 50 cubic meters within calamity
declared areas for public infrastructure projects; and
5. Approves original and renewal of special use permits covering over five
hectares for public infrastructure projects.

Hence, the certification issued by the Regional Technical Director, FMS-DENR,

in the form of a memorandum to the trial court, has no probative value.

Further, it is not enough for the PENRO or CENRO to certify that a land is
alienable and disposable. The applicant for land registration must prove that the
DENR Secretary had approved the land classification and released the land of the
public domain as alienable and disposable, and that the land subject of the
application for registration falls within the approved area per verification through
survey by the PENRO or CENRO. In addition, the applicant for land registration
must present a copy of the original classification approved by the DENR
Secretary and certified as a true copy by the legal custodian of the official
records. These facts must be established to prove that the land is alienable and
disposable. Respondent failed to do so because the certifications presented by
respondent do not, by themselves, prove that the land is alienable and
disposable.

Only Torres, respondents Operations Manager, identified the certifications

submitted by respondent. The government officials who issued the certifications were
not presented before the trial court to testify on their contents. The trial court should not
have accepted the contents of the certifications as proof of the facts stated
therein. Even if the certifications are presumed duly issued and admissible in
evidence, they have no probative value in establishing that the land is alienable
and disposable.

Public documents are defined under Section 19, Rule 132 of the Revised Rules
on Evidence as follows:
(a) The written official acts, or records of the official acts of the sovereign
authority, official bodies and tribunals, and public officers, whether of the Philippines, or
of a foreign country;
(b) Documents acknowledged before a notary public except last wills and
testaments; and
(c) Public records, kept in the Philippines, of private documents required by law
to be entered therein.

Applying Section 24 of Rule 132, the record of public documents referred to in

Section 19 (a), when admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having legal custody of the
record, or by his deputyThe CENRO is not the official repository or legal custodian
of the issuances of the DENR Secretary declaring public lands as alienable and
disposable. The CENRO should have attached an official publication of the DENR
Secretarys issuance declaring the land alienable and disposable.
 Section 23, Rule 132 of the Revised Rules on Evidence provides:
Sec. 23. Public documents as evidence. Documents consisting of entries in
public records made in the performance of a duty by a public officer are prima facie
evidence of the facts stated therein. All other public documents are evidence, even
against a third person, of the fact which gave rise to their execution and of the date of
the latter.

The CENRO and Regional Technical Director, FMS-DENR, certifications do not

fall within the class of public documents contemplated in the first sentence of Section 23
of Rule 132. The certifications do not reflect entries in public records made in the
performance of a duty by a public officer, such as entries made by the Civil Registrar in
the books of registries, or by a ship captain in the ship's logbook. The certifications are
not the certified copies or authenticated reproductions of original official records in the
legal custody of a government office. The certifications are not even records of public
documents. The certifications are conclusions unsupported by adequate proof, and thus
have no probative value. Certainly, the certifications cannot be considered prima
facie evidence of the facts stated therein.

The CENRO and Regional Technical Director, FMS-DENR, certifications do not

prove that Lot 10705-B falls within the alienable and disposable land as proclaimed by
the DENR Secretary. Such government certifications do not, by their mere issuance,
prove the facts stated therein. Such government certifications may fall under the class
of documents contemplated in the second sentence of Section 23 of Rule 132. As such,
the certifications are prima facie evidence of their due execution and date of issuance
but they do not constitute prima facie evidence of the facts stated therein. (Emphasis
supplied.)

It is likewise important to note that the Certifications considered by the CA were

not presented during trial, but only on appeal. This being so, the genuineness and due
execution of these documents were not proven. Furthermore, they did not cover the
contested property, but merely the lots adjacent to it.

In conclusion, respondent was not able to comply with Sec. 14(1) of P.D. 1529,
or the Property Registration Decree, which states:

Who May Apply. The following persons may file in the proper Court of First
Instance an application for registration of title to land, whether personally or through
their duly authorized representatives:
(1) Those who by themselves or through their predecessors-in-interest have
been in open, continuous, exclusive and notorious possession and occupation of
alienable and disposable lands of the public domain under a bona fide claim of
ownership since June 12, 1945, or earlier. (Emphasis supplied.)
 Section 45. Commercial lists and the like. — Evidence of statements of matters of
interest to persons engaged in an occupation contained in a list, register, periodical, or
other published compilation is admissible as tending to prove the truth of any relevant
matter so stated if that compilation is published for use by persons engaged in that
occupation and is generally used and relied upon by them therein. (39)

Section 46. Learned treatises. — A published treatise, periodical or pamphlet on a

subject of history, law, science, or art is admissible as tending to prove the truth of a
matter stated therein if the court takes judicial notice, or a witness expert in the subject
testifies, that the writer of the statement in the treatise, periodical or pamphlet is
recognized in his profession or calling as expert in the subject. (40a)

Section 47. Testimony or deposition at a former proceeding. — The testimony or

deposition of a witness deceased or unable to testify, given in a former case or proceeding,
judicial or administrative, involving the same parties and subject matter, may be given in
evidence against the adverse party who had the opportunity to cross-examine him. (41a)

1.B. Opinion Rule

Section 48. General rule. — The opinion of witness is not admissible, except as
indicated in the following sections. (42)

Section 49. Opinion of expert witness. — The opinion of a witness on a matter

requiring special knowledge, skill, experience or training which he shown to posses, may
be received in evidence.

Expert. – An expert may be defined as a person who is so qualified, either by actual

experience or by careful study, as to enable him to form a definite opinion of his own
respecting any division of science, branch of art, or department of trade about which persons
having no particular training or special study are incapable of forming accurate opinions or of
deducing correct conclusions.36

An expert has been defined to be one possessing, in regard to a particular subject or

department of human activity, knowledge not usually acquired by other persons.37

To “Qualify” an Expert. – A witness, to qualify as an expert, must have acquired such

SPECIAL KNOWLEDGE of the subject-matter, about which he is to testify, either by study of the
recognized authorities on the subject, or by practical experience, that he can give the court
assistance and guidance in solving a problem to which its equipment of good judgment and
average knowledge is inadequate. It is not enough for a witness who would qualify as an expert
to prove that he belongs to the profession or calling to which the subject- matter of the inquiry
relates; he must further show that he possesses special knowledge as to the very question on
which he proposes to express an opinion.38
Subjects of Expert Testimony.

a) HANDWRITING

 There is no test by which one can determine with precision how much experience or
knowledge of handwriting a witness must have in order to qualify as an expert for comparison.
This problem, is generally speaking, left to the discretion of the trial court whose ruling
thereupon is not reversible in the absence of an abuse of that discretion.
 Bank tellers and other bank officers and employees whose daily business and duties compel
them to scrutinize and examine writings are competent experts respecting handwriting.39
 Function of handwriting expert. – No handwriting expert should wish for his testimony to
be received as unquestionable authority, the idea being rather that it is the function of the
expert to place before the court data upon which the court can form its own opinion.40
 In the recent 2016 case of Damasco T. Ambray and Cerefino T. Ambray, Jr., v. Sylvia A.
Tsourous, et al,41 it was held that:

“As a rule, forgery cannot be presumed and must be proved by clear, positive and
convincing evidence, and the burden of proof lies on the party alleging forgery. One who
alleges forgery has the burden to establish his case by a preponderance of evidence, or
evidence which is of greater weight or more convincing than that which is offered in
opposition to it. The fact of forgery can only be established by a comparison between
the alleged forged signature and the authentic and genuine signature of the person
whose signature is theorized to have been forged.

Under Rule 132, Section 22 of the Rules of Court, the genuineness of handwriting may
be proved in the following manner: ( 1) by any witness who believes it to be the
handwriting of such person because he has seen the person write; or he has seen
writing purporting to be his upon which the witness has acted or been charged; (2) by a
comparison, made by the witness or the court, with writings 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.

° Corollary thereto, jurisprudence states that the presumption of validity and regularity
prevails over allegations of forgery
47 New City Builders, Inc. v. NLRC, 499 Phil. 207, 212-213 (2005), citing Insular Life
Assurance Company, Ltd. v. CA, G.R. No. 126850, April 28, 2004, 428 SCRA 79, 86.
48 Maersk-Filipinas Crewing Inc., v. Avestruz, supra note 46, at 172. 49 Gepulle-Garbo
v. Garabato, G.R. No. 200013, January 14, 2015, 746 SCRA 189, 198-199. 50

Section 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
witness has acted or been charged, and has thus acquired knowledge of the
handwriting of such person. Evidence respecting the handwriting may also be given by
a comparison, made by the witness or the court, with writings 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.
~
Decision 8 G.R. No. 209264
and fraud.

As against direct evidence consisting of the testimony of a witness who was physically
present at the signing of the contract and who had personal knowledge thereof, the
testimony of an expert witness constitutes indirect or circumstantial evidence at best.

In this case, the only direct evidence presented by respondents to prove their allegation
of forgery is Questioned Documents Report No. 266-39752 dated March 24, 1997
issued by National Bureau of Investigation(NBI) Document Examiner II Antonio R.
Magbojos (Magbojos), stating that the signatures of Ceferino, Sr. and Estela on the
Deed of Sale, when compared to standard sample signatures, are not written by one
and the same person.

In refutation, petitioners offered in evidence, inter alia, the testimony of their mother,
Estela, in the falsification case where petitioners were previously acquitted. In the
course thereof, she identified the signatures on the Deed of Sale as hers and Ceferino,
Sr.' s, which was fully corroborated by Atty. Zosimo Tanalega (Atty. Tanalega), the
notary public who notarized the subject Deed of Sale and was present at the time the
Ambray spouses affixed their signatures thereon.

Between the Questioned Documents Report presented by respondents and the

testimony given by Estela in the falsification case in support of petitioners' defense, the
Court finds greater evidentiary weight in favor of the latter. Hence, respondent's
complaint for annulment of title, reconveyance, and damages in Civil Case No. SP-
5831(01) should be dismissed.”

 Proof of genuineness of Specimen Signatures must be established. – Generally, where writings

are admitted to serve as a basis for comparison, the genuineness thereof must be proved to the
satisfaction of the judge as a preliminary question. (Jones on Evidence).

o Defendants recognize that the rule is that in order to make such signatures proper evidence
they must be CONCEDED to be genuine. But their contention is that if the party which the
writing purports to be the signature of admits it to be his signature, this is sufficient regardless
of what the other party may say. This will not do, at least when the question arises as this has.
One of the principal reasons for the rule excluding such testimony is that it brings collateral
issues which would produce endless confusion, in trials. In the case at bar the plaintiff declared
these signatures were not genuine and could have tendered that collateral issues in the midst
of the trial, an issue which would frequently be as tedious to investigate and as doubtful of
correct result as the main matter in litigation. The concession of the genuineness of the
signature must be such concession as will prevent and avoid an issue over the matter. To
permit a party to introduce in his own behalf, over the protest of his opponent as to its
 genuineness, a signature which he claims to have written, or, indeed, which he may have
written, would put it in the power of such party to make evidence for himself. A signature not
genuine might be admitted to be so, if it would serve the purpose of defense. So signatures
might be made with a view to future use.42

o Comment: Simply put, when a disputed signature is juxtaposed with purported standard
specimen signatures, the comparison should only be done AFTER a “concession” is made that
indeed the “standard specimen signatures” of the party concerned are his. Because it would be
easy for a party who had entered into a transaction he wants to back out from, to deny his
signature on the contract and thereafter, change his signature henceforth thereby making his
previous genuine signature as to appear to be NOT HIS SIGNATURE as his new signatures (if
used as standard specimens) will disown his previous signature thereby relegating it to
“forged”.

b) BALLISTICS-

o Forensic ballistics- the examination and identification of guns and bullets- is a 2oth-century
science.
o The spiral “lands” and grooves of a rifled gun barrel leave characteristic STRIATIONS on the
body of the bullet as it spins. No two guns, even from a single manufacturer, produce identical
striations, and ballistics examiners can prove the identity of striations on a bullet recovered at
the scene of a crime and a test bullet fired from a suspect’s gun.
o Judge Oliver Wendell Holmes. In 1902, he had a gunsmith fire a test bullet for comparison with
one recovered at the scene of a murder. As Holmes stated in his judgment: “I see no other way
in which the jury could have learned so intelligently how a gun barrel would have marked a lead
bullet fired through it”. 43

c) DNA- Refer to previous lecture outline.

Section 50. Opinion of ordinary witnesses. — The opinion of a witness for which
proper basis is given, may be received in evidence regarding —
(a) the identity of a person about whom he has adequate knowledge;
(b) A handwriting with which he has sufficient familiarity; 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. (44a)
1.C. Character Evidence

Section 51. Character evidence not generally admissible; exceptions: —

(a) In Criminal Cases:
(1) The accused may prove his good moral character which is pertinent to the moral
trait involved in the offense charged.
(2) Unless in rebuttal, the prosecution may not prove his bad moral character which
is pertinent to the moral trait involved in the offense charged.
(3) The good or bad moral character of the offended party may be proved if it tends
to establish in any reasonable degree the probability or improbability of the offense
charged.
(b) In Civil Cases:
Evidence of the moral character of a party in civil case is admissible only when pertinent to
the issue of character involved in the case.
(c) In the case provided for in Rule 132, Section 14.

[1] 31 C.J.S. 987 as cited on p. 531, EVIDENCE by Francisco, Volume VII Part I, 1997 Edition
[2] 1 Wharton’s Criminal Evidence, (11th ed.), p. 836, Ibid.
[3] People v. Gatarin, G.R. No. 198022, April 7, 2014 as cited on p. 307, EVIDENCE, Riano, 2016 Edition
[4] People v. Borella, 312 Ill. 34, 143 N.E. 471, EVIDENCE by Francisco, p. 534, Ibid.
[5] pp. 540-541, Id.
[6] People v. Cord, 157 Cal. 562, 108 P. 51 as cited on p. 534, EVIDENCE by Francisco, Ibid.
[7] People v. Reyes, 52 Phil. 541-542
[8] p. 537, EVIDENCE by Francisco, Ibid.
[9] Jones v. State, 52 Ark. 345, 12 S.W. 704
[10] Underhill’s Criminal Evidence, 5th ed., Vol. I, pp. 664-665
[11] See People v. Silva, G.R. No. L-44130; IV L.J. 580.
[12] People v. Reyes, 82 Phil. 563
[13] Wharton’s Criminal Evidence, (11th ed.), p. 837
[14] Wharton’s Criminal Evidence, pp. 754-754,
[15] See p. 588, EVIDENCE by Francisco, Ibid.
[16] Keefe v. State of Arizona, 293; 72 P. 2d 425
[17] People v. Francisco, G.R. No. 110873, September 23, 1999
[18] Clem v. Com., 198 Ky. 586, 248 S.W. 1036
[19] p. 598, EVIDENCE by Francisco, Ibid.
[20] People v. Lungayan, 162 SCRA 100.
[21] Underhill’s Criminal Evidence, 5th ed., Vol I. pp. 689-690
[22] 20 Am. Jur. 558-559
[23] 41 Am. Jur. 558
[24] Keefe v. State of Arizona, 30 Ariz. 293, 72 P. 2d 425.
[25] 3 Wigmore on Evidence, sec. 1172; 11 Ency. Of Evidence, 381-384
[26] Wigmore on Evidence, (Stud. Text), p. 217
[27] Anna Lerima Patula v. People of the Philippines, G.R. No. 164457, April 11, 2012
[28] Barlett v. Patton, 33 W. Va. 71, 10 S.E. 10, 21
[29] 3 Jones on Evidence, 2d., Sec. 1131
[30] 31 Corpus Juris Secundum
[31] 31 C.J.S. 975
[32] p. 572, EVIDENCE by Francisco, Ibid. citations omitted.
[33] 3 Wigmore on Evidence, sec. 1621
[34] 20 Am. Jur. 832-833
[35] Republic v. Lucia M. Gomez, G.R. 189021, February 22, 2012
[36] 20 Am. Jur. 656-6567
[37] U.S. v. Gil, 13 Phil. 530
[38] Wharton’s Criminal Evidence, (11th ed.), pp. 1691-1962
[39] 20 Am. Jur., pp. 706-707
[40] People v. Bustos, 45 Phil. 9, 28
[41] G.R. No. 209264, July 05, 2016
[42] Doua v. Reid, 53 Mo. App. 553
[43] pp. 174-175 “The Speeding Bullet”, BODIES OF EVIDENCE, Brian Innes