PART IV

RULES OF EVIDENCE

RULE 128

General Provisions

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. (1)

Evidence is a part of a proceeding (i.e. civil, crim, spec pro), NOT a proceeding
Proof is the result.
Evidence is the means to prove the facts.

Facts + Evidence = Truth (proven)

Court has no choice but to rely on evidence with the hope that truth shall be ascertained.

There is a need to qualify.

When you handle a case, you always talk of propositions. Then, to establish your allegations, you always use
and say evidence.

So, evidence is the means to prove the facts. If you are able to connect your fact in relation to the evidence you
will present, then you are able to prove it, you were able to ascertain the truth of it.

So, in all cases there should be a fact or an allegation to fortify evidence, but that is not as simple as that
because under Section 3, evidence is admissible when (1) it is relevant to the issue and (2) not excluded by the
law or the Rules.

Evidence may be relevant but is excluded all together by the rules.

SO, you are not able to prove anything. You are not able to ascertain the truth that you would want to
ascertain.

Evidence generally are Object, Documentary, Testimonial Evidence.

Under Rule 130, it is object, documentary and testimonial evidence.

Direct evidence is that which tends to establish a fact without any inference or presumption. Example: I saw
Mr. X stab B. That is a direct evidence. Do you need to infer from it? Do you need to presume from it? No, that
is clear direct evidence as distinguished from circumstantial evidence.

Circumstantial evidence is that wherein there is one set of circumstances and based on those circumstances,
you will derive a conclusion. Although, maybe, you haven’t seen a person stab B but because you saw Mr. X in
possession of a murder weapon and that his shirt is bloody and that he came from where Mr. B was found
thereafter, the circumstances would point to that fact that he assaulted the person. That is direct as
distinguished from circumstantial evidence.

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Primary evidence is that would force the greatest certainty of the fact in question. Example of primary
evidence on document is the original. When the content of the document is the subject of the inquiry then the
original should be presented for the primary evidence there is the original. If the original document is not
available could you present a copy, a recital of contents of some documents or witnesses in that order? Yes you
could, but not so fast. You will have to establish first either that it was lost or destroyed without bad faith on
the part of the offeror or number two that it is in the possession of the adverse party and despite notice he
refuses to surrender. So, the rule is primary is the best evidence that you could present to prove a fact, in case
of a document, the original. But for testimonial evidence like the witnesses, the primary evidence there is the
person who had personal knowledge. He, first and foremost is competent, he is able to perceive and in
perceiving he could make known his perception to another and more than his competency is that he has
personal knowledge.

As distinguished from secondary evidence on testimonial evidence, secondary evidence is any of the
exemptions under the hearsay rule like a dying declaration that is really a secondary evidence, why? The dying
person did not sit on the stand, it was the person who received the information or the recipient who will testify
on the witness stand. So, that it is a requirement that the dying man be competent if he were alive. If he was
brought to the witness stand, he was able to perceive and in perceiving he could make known his perception to
others. That’s just an example of secondary evidence. The rest of the exemption on hearsay would fall under
that.

Positive evidence is when the witness affirms that the fact did or did not occur. So, he is quite categorical to say
that it did or did not occur. As distinguished from negative, when the witness states that he did not see or
know the occurrence of the fact. Meaning that he was there at the place where the crime happened, he
wouldn’t say that I didn’t see but says that he did not notice anything.

Corroborative evidence is an evidence of a different kind and character tending to prove the same fact.
Example: To establish the death of Mr. B, I could present testimonial witnesses of persons who saw the
commission of the death, that’s one kind of evidence. What’s the other kind of evidence under that you would
present, the death certificate. It is of a different kind and nature but it would establish one and the same fact
which is the death. Cumulative is that the nature of evidence is of the same kind and character. Example: Mr. X
barged into this auditorium and stabbed one of the students. Could Ms. Aquitaña testify? Could Ms. Saldaña
testify? Could Mr. Ong testify? All those are cumulative because they are of the same nature and character.

Now, what is the difference between relevant and irrelevant evidence? Evidence is relevant when it tends to
establish the probability or improbability of the fact in issue. However, some authorities use relevancy and
materiality interchangeably.

What do you mean by competent evidence? Competent means that it is not excluded by the rules. So, it
applies to testimonial, documentary or object. Sir, how is that? Let us say object, if it was obtained from an
illegal search. Although it is relevant, if it was obtained from an illegal search could it be presented in evidence?
It could be relevant but it is excluded by the Rules. In testimonial evidence, it is the same. I may be able to
testify. I could testify but I may not be competent because when I allegedly perceived the commission I was
insane. So, it is excluded by the Rules. The same way as in documentary. The contents of which are the subject
of the inquiry and you are presenting a photocopy without establishing the need for presenting the secondary
evidence, then even if it is relevant, it cannot be accepted because it is not competent evidence.

Now, what is rebuttal and sur-rebuttal? When do you do a rebuttal evidence or a sur-rebuttal? A rebuttal is
made after the defendant closes his presentation of evidence. And who will conduct the rebuttal? It will be the
plaintiff on the new matters presented by the defendant. So, why is there a need for rebuttal? Because the
plaintiff who has the opportunity to present his evidence on the first instance cannot now meet the new

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matter presented by the defendant. For example, alibi, so he presented different documents, different
witnesses. Of course, the plaintiff wants to meet those new matters in a rebuttal. Is rebuttal a matter of right?
No, it is subject to the discretion of the court, if the court deems it fit for you to conduct a rebuttal evidence.
Based on experience, judges don’t usually allow a rebuttal so that if you could do a good cross-examination of
the defendant’s witnesses, do so. Aside from impeaching him, you should also try to elicit facts during cross
examination. Now, what is sur-rebuttal? If the plaintiff has rebuttal, the defendant will have to meet the
rebuttal of the plaintiff; that is sur-rebuttal.

What is an expert evidence? Expert evidence is the testimony of a person who has special skill, experience,
training, and the like. Now, does it mean that for a person to be an expert, he should be a graduate of a school
or have reached a master’s degree? No. That’s why the law says that there should be a certain level of
expertise arising from experience, training, or special skill. The law gives premium on these things.

Documentary evidence are writings or words, numbers, figures, letters contained in a material. That blank wall,
there are writings on that wall about the activities for next month, let us say, of Mr. Ong. Is that a documentary
evidence? If is intends to establish the contents thereof or the writings, even if it was in the wall, it is a
documentary evidence. But if it intends to establish that there is a graffiti, the wall is merely an object
evidence.

What about testimonial evidence? If you are to read the Rules, this starts from section 20 of Rule 130.
Although, of course, the previous provisions would have discussed the concept of testimonial evidence in the
light of evidence. Testimonial evidence is the testimony of a witness who sits on the stand. Now, should the
witness be competent? Yes. Although if he is competent but he does not have personal knowledge of the facts
that he would testify on, would you object to his being presented? Yes, because his testimony would be
hearsay. So long as it would not fall under any of the exemption.

What is substantial evidence? Substantial evidence is that amount of evidence which a reasonable mind would
accept. Substantial evidence applies mostly in administrative cases. Because in criminal cases, we have proof
beyond reasonable doubt. In civil cases, we have preponderance of evidence. Although in civil cases, the
number of witnesses would not tilt the scale of justice, but it has certain significance in terms of persuasive
effect to the court.

What about disputable evidence as against conclusive evidence? Disputable is that you will present an
evidence to contradict or controvert while a conclusive evidence is that which you do not have to contradict or
controvert.

Distinguish:

Admissibility of evidence Weight of evidence

Pertains to the ability of the
evidence to be allowed and
accepted subject to its relevancy
and competence
Substantive essence or
characteristic feature of
evidence as would make it
worthy of consideration by the
court before its admission
Pertains to the effect of evidence
admitted
The probative value of evidence
which the court may give to
admit after complying with the
rules of relevancy and
competency

Proof Evidence

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Effect and result of evidence Medium of proof
End Result Means to the end

Factum probans – the evidentiary fact by which the factum probandum is to be established; material
evidencing the proposition, existent, and offered for the consideration of the tribunal

Factum probandum – the ultimate fact sought to be established; proposition to be established, hypothetical,
and that which one party affirms and the other denies

Factum probandum Factum Probans

Proposition to be established
Conceived of as hypothetical;
that which one party affirms and
the other denies
Material evidencing the
proposition
Conceived of for practical
purposes as existent, and is
offered as such for the
consideration of the court

Notes:

Direct Evidence – actual perception

People v Aguinaldo – rape case; daughter charged his father with rape during night time when they slept
beside each other; defense: denial, brother’s testimony that sister is 100% liar, medical report from the PNP
that hymen was intact

Physical v Testimonial – what should prevail? (what is important is the result) Physical Evidence prevails.

Object Evidence – wall, photograph of the wall

Documentary Evidence – graffiti on the wall since the inquiry is on the writings

Positive v Negative

+ did/did not happen; better

- I don’t know, I didn’t see; use it if it contradicts + evidence

Primary v Secondary

Primary is the best; original

Secondary is inferior; substitute; lost or in possession of adverse party

Presumption – facts give rise to an inference

e.g. commission of an offense gives rise to the presumption of innocence

Conclusive – incontrovertible; once facts (circumstances are established) are not destroyed, becomes
conclusive evidence

Corroborative – additional evidence of a different kind and character tending to prove the same point

Cumulative – evidence of the same kind and character as that already given, and tends to prove the same
proposition

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Fact – thing, event, occurrence

Facts in issue – disputed; no agreement

Factual issue v Legal issue

e.g. did x stab y? (factual) is he liable for homicide? (legal)

Competent – relevant + not excluded by law/Rules; very CORE of evidence

Material – may not be directly related to the fact in issue, but material
e.g. whether x purchased a knife in relation to a case of stabbing

Rebuttal – explain, repel, counteract/disprove facts given in evidence by the adverse party

Sur-rebuttal – usually available when rebuttal is allowed in the court’s discretion

Presentation of Evidence:

Prosecution Accused
Witnesses: Witnesses:
1. police officer 1. accused
2. eye witness 2. person who affirms alibi
3. medico-legal that accused stayed at his
house
Since alibi is a new matter, SC Circular: Records of PI may be
prosecution asks that it may be elevated
allowed to present rebuttal
evidence. (Modes of Discovery)
It is new to the theory of the
prosecution.

It is NOT a matter of right; subject

to the exercise of court’s
discretion so you have to convince
it that it is a NEW matter!

Sur-rebuttal of defense is a matter of right once rebuttal is given.

Example: civil action: contract of sale of a car @ P1M

Seller Buyer
There’s a new matter presented as - failed to pay
to the absence of sale. - that there was NO sale,
only a loan
But sur-rebuttal NOT available if
NOT raised in the pleadings! premise: like the car? buy it!

Remedy?

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S5 R10 Amend pleadings to
conform with evidence

Object – addressed to the senses of the court

Documentary – writing, NOT material

Testimonial – witness S20 R130

Substantial – degree of evidence before quasi-judicial bodies

Expert – knowledge, skill, experience, training S48 R130

Sec. 2. Scope. — The rules of evidence shall be the same in all courts and in all trials and hearings, except as
otherwise provided by law or these rules. (2a)

e.g. Best Evidence Rule

CA – original action, new trial (ground: NDE) -> exception: conducts hearing

What varies is the quantum of proof R133

Rules of evidence distinguished

Civil Case
Party attends by accord
No presumption as to either party
An offer of compromise does not,
as a general rule, amount to an
admission of liability
Preponderance of evidence
Criminal case
Accused attends by compulsion
Presumption of innocence attends
the accused
An offer of compromise is an
implied admission of guilt
Proof beyond reasonable doubt

Compromise S27 R130

- civil case: any stage; quasi-delict can be compromised

offer to pay hospitalization – encouraged but NOT admissible

quasi-judicial bodies: Rules of Evidence NOT strictly applied

(HLURB, DARAB, NLRC)

Sec. 3. Admissibility of evidence. — Evidence is admissible when it is relevant to the issue and is not
excluded by the law or these rules. (3a)

This is one of the provisions which has been so abused. If it is to be admissible, it should be relevant and not
excluded by the rules. The fact of relevancy is one, the fact that it is excluded by the rules, you have to contend
with Rule 130 and other pertinent rules like other Constitutional provisions on searches and arrest on custodial
investigation. If you do not follow the requirements of custodial investigation on an in-custody procedure, even
if it is relevant, if he admitted that he committed the offense but in the absence of counsel is it relevant? Yes, it
may be relevant but it is excluded by the Rules.

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Custodial interrogation means questioning initiated by law enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom in some significant way so if there is some restriction on his
freedom to do, then it is already a custodial investigation. And if he is invited, will it still fall under custodial
investigation? Take note of Republic Act 7438, an act defining certain rights of persons arrested, detained or
under custodial investigation as well as the duties of the arresting detainee or arresting officers. Thus, an
accused on board a police vehicle on the way to the police station is already under custodial investigation and
therefore should be accorded his rights under the constitution. So even in a situation that you are inside a
police car so long as your freedom to move has been restricted, you are already in custody. So, what matters
here is your restriction to move. So, if you were invited and the question is such that it is no longer as to a
general questioning on event or circumstances but is now pointing into a particular person as to his
commission of the offense, then custodial investigation has set in.

RA 7438 has expanded the definition of custodial investigation into the practice of issuing invitations to a
person. What is this invitation? You get a letter from the police station. Who has been invited by the police? We
have a colonel? Oh, what can you say colonel? What do you do when you invite? (Colonel: We are no longer
allowed to do that, sir.) How do they do it before? (Colonel: Before, they usually write letters inviting person.
That’s even more decent but for ordinary criminals what they do is they knock on their door, then “magandang
hapon po. I am a police officer. Pwede ho ba namin kayong maimbitahan sa istasyon?” That’s okay, up to that
point because you are only being invited but the problem is, when they are already in the police station, what
happened? The aggrieved party is already there. What would the policeman, with all due respect…I don’t know
if your classmate would agree with me, what would they do? Okay. “Is he the one?” “Yan nga ho.” Then they
arrest him and charges him. Because of this practice, they came up with this law.

You can no longer invite. That’s why if you get invited, you could decline. “Hindi ho pwede may lakad ho ako
ngayon eh. Siguro, next time.” What if it is an admission of guilt to the baranggay captain in response to the
query of the brgy captain as to why he committed the offense charged in the presence of the Chief of Police. Is
that part of custodial investigation? Yes. People v. Ochate, GR No. 127154, July 30, 2002. So, class what do I
want to drive at at this point in Section 3. An evidence may be relevant but if it is excluded by the Rules, it is
worthless. Another sample that we would give under this Rule is RA 4200, the anti-wiretapping law. That is
another most abused provision of law. Although it is relevant, they are actually discussing how the crime will be
committed but the manner by which it was secured is not in accordance with the requirement of RA 4200, then
it is excluded by law. That is what the law wants to remind us.

RA 4200: Wire-tapping

Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to
secretly overhear, intercept, or record such communication or spoken word by using a device commonly
known as a dictaphone or dictagraph or dectaphone or walkie-talkie or tape recorder, or however otherwise
described:
It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next
preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record,
or copies thereof, of any communication or spoken word secured either before or after the effective date of
this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to
communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether
complete or partial, to any other person: Provided, That the use of such record or any copies thereof as
evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be
covered by this prohibition.
Unlawful acts:

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 1) any person, not being authorized by all the parties to any private communication or spoken word, to
tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or
record such communication or spoken word by using a device commonly known as a dictaphone or
dictagraph or dectaphone or walkie-talkie or tape recorder, or however otherwise described:
2) any person to knowingly possess any tape record, wire record, disc record, or any other such record, or
copies thereof, of any communication or spoken word secured in the manner prohibited by this law; or
3) any person to replay the same for any other person or persons
4) any person to communicate the contents thereof, either verbally or in writing, or
5) any person to furnish transcriptions thereof, whether complete or partial, to any other person:
The use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses
mentioned in section 3 hereof, shall not be covered by this prohibition.

Sec. 2. Any person who wilfully or knowingly does or who shall aid, permit, or cause to be done any
of the acts declared to be unlawful in the preceding section or who violates the provisions of the following
section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction
thereof, be punished xxx.
Sec. 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any peace
officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful
in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and
disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit
rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as
defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and
other offenses against national security: Provided, That such written order shall only be issued or granted
upon written application and the examination under oath or affirmation of the applicant and the witnesses
he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes
enumerated hereinabove has been committed or is being committed or is about to be committed: Provided,
however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion,
inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be
granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or
are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained
essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes;
and (3) that there are no other means readily available for obtaining such evidence.
xxx
Conditions for valid wiretapping
1) Any peace officer
2) Authorized by a written order of the Court
3) In cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy,
mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion,
sedition, conspiracy to commit sedition, inciting to sedition, kidnapping, espionage and other offenses
against national security:
Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or
meaning of the same or any part thereof, or any information therein contained obtained or secured by any
person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial,
quasi-judicial, legislative or administrative hearing or investigation.

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Information obtained in violation of the anti-wiretapping act is absolutely inadmissible.

Relevancy v Materiality

R: Fact in dispute
M: Fact may shed light to the case

“fruit of the poisonous tree”

Admissibility ≠ Substance

Look into the manner and process by which it is taken.

Mere fact of pre-marking/identified as an exhibit – NOT yet admissible; there’s a need to formally offer it so
other party may object then judge rules on its admissibility

Documentary Evidence

Testimonial Evidence – offered when witness is presented; objected to that instant

Admin Matter Re: Pre-trial and Deposition – all evidence should be marked during pre-trial; identify everything)

Branch Clerk of Court – preliminary conference

Anti-Wire Tapping Act – knowingly possesses tape with information: prohibited under RA 4200; use of device to
tamper a communication line; intent to tap into the privacy of an individual.

Extension lines – NOT a violation

Cellphones – covered by wire tapping

Text message – electronic evidence

Before a recording of conversation can be given probative value, the following requisites must first be
established:

1) Showing that the recording device was capable of taking testimony

2) Showing that the operator of the device was competent
3) Establishment of the authenticity and correctness of the recording
4) Showing that changes, additions, or deletions have not been made
5) Showing of the manner of preservation of the recording
6) Identification of the speakers
7) Showing that the testimony elicited was voluntarily made

 chain of custody; preservation

Weapon – even if NOT presented, there may be a conviction; physical evidence

Admissibility of a radio broadcast:

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Evidence of a message or a speech by means of radio broadcast is admissible as evidence when the identity of
the speaker is established either by:

1) Testimony of a witness who saw him broadcast his message or speech

2) Witness’ recognition of the voice of the speaker

Sec. 4. Relevancy; collateral matters. — Evidence must have such a relation to the fact in issue as to induce
belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it
tends in any reasonable degree to establish the probability or improbability of the fact in issue. (4a)

Relevance – relation to the facts in issue as to induce belief in its existence or non-existence

Evidence on collateral matters allowed only when it tends in any reasonable degree to establish the probability
or improbability of the fact in issue.

Evidence is relevant when it is related to the fact in issue. As a rule, collateral matters are not allowed unless to
a certain extent it would establish the probability or improbability of the fact in issue. So, an example of a
collateral matter which would be irrelevant would be a case for murder and the witness on the stand is Mr.
Sandoval and he is being asked of the circumstances based on his personal knowledge on how the accused
killed the victim. The counsel asks “Well, 3 months ago you attend the party with the accused and the victim.
Can you tell us what happened in the party?” That is irrelevant and not a collateral matter unless of course you
can establish that prior to that day, you could already establish that there is animosity among them and that it
may result for the offense by reason of such animosity.

Relevancy – fact in issue

Collateral matters NOT allowed, EXCEPT when it tends in any reasonable degree to establish the probability or
improbability of a fact in issue

Physical Evidence is superior than testimonial evidence.

Alibi is the weakest defense.

Identification:
GR: positive and direct evidence
EXC: circumstantial evidence could be enough to identify/convict

(basis: S4 R133 Circumstantial Evidence – more than 1 circumstance; proven)

RULE 129

What Need Not Be Proved

SECTION 1. Judicial notice, when mandatory. — A court shall take judicial notice, without the
introduction 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 admiralty and maritime courts of the world
and their seals, the political constitution and history of the Philippines, the official acts of legislative,
executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the
geographical divisions. (1a)

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Mandatory Judicial Notice
)1 existence and territorial extent of states, their political history, forms of government and symbols of
nationality
)2 the law of nations
)3 the admiralty and maritime courts of the world and their seals
)4 the political constitution and history of the Philippines
)5 the official acts of the legislative, executive and judicial departments of the Philippines
)6 the laws of nature
)7 the measure of time, and
)8 the geographical divisions

Sec. 2. Judicial notice, when discretionary. — A court may take judicial notice of matters which are of public
knowledge, or are capable to unquestionable demonstration, or ought to be known to judges because of
their judicial functions. (1a)

Discretionary Judicial Notice – matters which are:

1) of public knowledge, or
2) are capable of unquestionable demonstration, or
3) 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. (n)

When court takes judicial notice:

1) During trial, on any matter – allow the parties to be heard thereon

2) After trial, and before judgment or on appeal – any matter and allow the parties to be heard thereon if
such matter is decisive of a material issue in the case

Hearing is necessary when:

1) During the trial, the court

a) motu propio, on request of a party
b) announces its intention to take judicial notice of any matter

2) After trial
a) before judgment or on appeal
b) motu propio, on request of a party
c) takes judicial notice of any matter, and

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 d) if such matter is decisive of a material issue in the case

Hence, the court can take judicial notice of any matter during the trial as long as there is a hearing. If trial is
already over, the court can take judicial notice only of matters decisive of a material issue in the case as long as
there is a hearing.

Kinds of Judicial Notice:

1) Mandatory – exclusive enumeration; matters already settled; judge has NO discretion; he has NO choice

These are matters of judicial notice. Laws of nature---gravity, relativity.

All of these can be verified from source materials, like encyclopedia, almanac, dictionary, etc. and these are
matters of judicial notice by the judges.

e.g. highlights of Philippine history

2) Discretionary

Judge has discretion and NO hearing is required.

3) Hearing is Required

Court takes judicial notice:

cases within sala: GR: NO
EXC: matters of expediency; in the interest of justice

cases with another branch: NO

SC as to other cases: NO

SC Circulars: Yes

Judicial notice takes the place of evidence.

Proposition + Judicial Notice = Proof

Resolutions, NOT bills, publicly known: Yes

High tide S1 3rd kind of JN

Judge CANNOT rely on personal knowledge beyond S1

S2 is discretionary; NO hearing required

S3 “hearing” – do NOT be misled; NO presentation of evidence; hearing is conducted to ventilate information

to the court as to the propriety of JN

Notoriety is a question of fact.

(a) matter of public knowledge

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It is subject to the discretion of the judge if it is of public knowledge, meaning it is of common or general
knowledge at the standpoint of the judge.

death of judge’s schoolmate: NO JN

España, Rotonda, Manila City Hall: Yes

Factors considered as to public knowledge

 notoriety
 knowledge of the judge

If judge refuses to notice, there will be presentation of evidence.

If judge does NOT know, call court’s attention under S3 where hearing is required.

Erap is now history under S1 – political history

Can judge render decision solely on JN? NO; S1 R36 judgment based upon facts and law

JN is only a rule, a means. Court CANNOT take JN completely and dispense with evidence.

Nature of injury: NO JN
That it will injure: Yes

(b) unquestionable demonstration – Result; like those in statistical processes and methods

Methodology: Yes
Variables (questions, people surveyed, subject of inquiry); survey itself: NO JN

Census:
Either: Judicial Notice
Presumption of Regularity – better option for a reasonable judge

(c) by virtue of judicial functions

JN – NO need for declaration that he shall take JN

S3 party knows; at the instance of the court or the party; may happen even before judgment (through an order
 certiorari since it is an interlocutory order) or on judgment ( appeal)

S3 Hearing Necessary
You have completed the trial and you would like the court to take judicial notice. It should be something that
could probably alter the result or something that is so material or decisive that it might change the outcome of
the case.

You have to convince the court that they have to take judicial notice of this fact. Is it the same as newly
discovered evidence? NO, it is not. Newly discovered evidence is that there is a document or an evidence of a
witness who was discovered or produced after trial. Here, you will not present it, you would want the court’s
attention and you would want for the court to take judicial notice.

1st ANY matter during trial

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2nd matter DECISIVE after trial, before judgment, on appeal (trial already terminated; you were already given
the time; may change outcome of the case)

e.g. of decisive matter

That P/N issued on a Sunday

- settled; just look at the calendar to check

Homicide case
- eyewitness saw accused because of the light of the full moon; subject of fact; decisive

Sec. 4. Judicial admissions. — An admission, verbal or written, made by the party in the course of the
proceedings 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 admission was made. (2a)

Requisites for judicial admission:

1) Made by a party
2) In the course of the proceedings
3) In the same case

If the admission was made in outside the proceedings or in another case, it is also admissible under admissions
of a party (Rule 130, Sec. 26).

The admission may be contradicted only by showing that

a) It was made through palpable mistake or
b) NO such admission was made

Instances of Judicial admissions:

i. genuineness and due execution of an actionable document copied or attached to a pleading, when the
other party fails to specifically deny under oath (Rule 8 §8)
ii. material allegations in the complaint, when the other party fails to specifically deny it (Rule 8 §11)
iii. admissions in superseded pleadings, when offered in evidence (Rule 10 §8)
iv. act, declaration, or omission of a party as to a relevant fact (Rule 130 §26)
v. implied admission of guilt in an offer of compromise by the accused in criminal cases, except quasi-
offenses and those allowed by law to be compromised (Rule 130 §27)
vi. admission by silence (Rule 130 §32)

Judicial admissions are verbal or written admissions by a party in the course of the proceedings without proof.
If you admit, do you still need to present evidence? NO more because there is already an admission. And this is
judicial admission as distinguished from extra-judicial admission. Judicial admission is made at any time in the
course of the proceedings. The fact will be enough because the evidence has already been admitted.
Extrajudicial admission is an admission out of court, not in the judicial proceedings.

Only similarity with JN: withOUT presentation/introduction of evidence (NO need for proof)

NOT in issue, either: NOT material or admitted and NOT disputed

Judicial admissions – material and relevant fact

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When made? Pleadings (complaint, answer, reply), pre-trial
Confession – acknowledgment of fault

- Request for admission under R26

- During trial (witness stand)

Mediation – confidential; NOT admission

Default ≠ Admission

Preliminary Marking during pre-trial ≠ Admission

- Motion to Intervene
Nordic Asia case: extended loan to debtor w/c mortgaged is vessel under the Ship Mortgage Decree; default
 extrajudicial foreclosure (while pending, crew of vessel filed an action to recover unpaid salaries); Nordic
intervened; has mortgage lien; SC: intervention IMPROPER; the intervenor must have own cause of action

RULE 130

Rules of Admissibility

A. OBJECT (REAL) EVIDENCE

SECTION 1. Object as evidence. — Objects as evidence are those addressed to the senses of the court.
When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. (1a)

Object – addressed to the senses of the court; represented by the judge

Being subject to the senses of the court, it could be viewed, examined and inspected by the court.

e.g. articles, persons, inspection, experiment

- extends to real properties

Photographs: Photographs of persons, things, and places, when duly verified and shown by extrinsic evidence
to be faithful representations of the subjects as of the time in question, are, in the discretion of the trial court,
admissible in evidence as aids to it in arriving at an understanding of the evidence, the situation or condition of
objects or premises, the circumstances of an accident, or the condition or identity of a person when any such
matter is relevant to the issues being litigated.

- ideal: photographer
- other people may testify (present during shoot)

first establish and lay foundation/basis:

 operator
 machine
 chain of custody
 changes

Then go to the circumstances of time and place.

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* Demonstration – show; described in the TSN; action CANNOT be recorded

Demonstrative Evidence v Demonstration

DE made for visualization purposes (weapon, map)

Map – location

Sketch – draw location of parties; may be marked as evidence; different nature from actual evidence

* Casette
1. contents – testimonial evidence; witness narrates
2. object evidence; other authorities consider it documentary

* TSN
1. inquiry as to the contents – documentary
2. existence of TSN – object

* Autopsy Report – makes reference to a body

1. findings – documentary
2. body as examined (injuries) – physical; speaks more eloquently than a hundred witnesses

* Intact hymen – physical (preferred)

What was taken based on examination – physical

Experiment – demonstrative; what would happen

“Exhibited” – viewed by the court and duly marked

Inspect, View – scene of the crime; evidence: NO need to exhibit, court appreciates it as it sees it

Judge must view in the presence of the witnesses so they will be given the opportunity.

* Autopsy, Medical Report – documentary

* Person dead, Wounds suffered – physical

Exhibited to in court: personal property

 fruit of the crime
 weapons used
 item assists in the just resolution of the case
 weapons for demonstration (visual purposes) – treated differently with actual object because of weight
of evidence

Requisites for Competency of Real Evidence:

1. Relevant
2. Authentic – who must authenticate? Witness – depends:
o last in possession
o anytime in possession
o owner

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 o sold to him
- authentication NOT required in demonstrative evidence, such as a map

Is it the actual object presented in court?

Demonstrative
 map – made by experts; presents graphical locations of an area; locational
 sketch – NOT as accurate as a map
 diagram – process/procedure (e.g. civil case – procedure for making a computer chip)

Re-enactment – a demonstration; recorded in the TSN by description (motions are NOT recorded)

Even in the absence of weapon, accused may be convicted if personally identified and proved as perpetrator
beyond reasonable doubt.

If body (corpus delicti) NOT recovered, can there be a conviction for homicide?
NO, body may be recovered so it raises a doubt if truly there was killing.
But you can charge illegal detention if accused last seen with the victim.

Death certificate would suffice as to the fact of death.

Paraffin test – NOT conclusive according to jurisprudence

(use of gloves, lapse of time, homemade gun/paltik)

Relative measurements NOT considered in the case of a paltik because jurisprudence says that there is NO
scientific explanation for its trajectory.

Powder burns may indicate relative distance of the victim and accused.

 relative distance of accused to the victim (if short distance)

 relative size of wound
 nature of bullet/gun (depending on the distance)
 stabbing – bolo (hacking); balisong (long cuts)
 gravity of the wound – physical evidence of the intent to kill; number of wounds shows the existence of
self-defense; SC case: wounds in the body and 1 in the throat: during trial, victim’s brother narrated
who the perpetrator was; it was physical evidence and NOT dying declaration; 1) visual; and 2) expert
testimony (won’t speak after suffering; only a mode can be made)
 relative distances – near: powder burns on victim; moon; light; night time; flashlight (accused could be
properly identified; held by witness’ victim; different is it is the accused who holds the flashlight
because then the court raises doubt since accused points it on the ground to guide them, NOT on his
face/his companions’ faces
 voice – fact of you being able to recognize it will vary according to case law; so long as you are familiar,
lay the basis; when there’s a relative distance (70-100 m), voice range may vary according to
jurisprudence; sound travels through waves so see distance
 physical examination of a child in a rape case; EXCEPTIONS in a jury system, NOT so much in our system
(person presented – demonstrative): prejudice/undue bias, humiliate, indecent/improper; now, SC
came out with a child-sensitive approach: NO doctor can examine a child by inserting his finger. The
Supreme Court understood that because of medical technology, there will be NO need to make a
physical insertion of the finger of the doctor inside the organ of a child victim. Why? They understand
that if the child were at the stage of puberty, a visual examination with good lighting plus a

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 magnification of the area would be enough to make a conclusion whether there was sexual contact.
Gone were the days wherein it is required that the doctor has to insert a finger to the organ of the
child.
 DNA Testing. In People v. Vallejo, DNA testing has now been adopted. DNA testing goes into the genes
of the individual. There are tests to be conducted in order ensure that the DNA testing or the samples
are not contaminated. Here, you have a comparison – a comparison of the sample which is taken from
the scene of the crime let’s say a sample of a blood and then a sample from the plaintiff and there will
be a comparison of the sample taken at the scene of the crime and that of the victim or the accused. In
this case, certain rules were laid down, the samples that were collected were subject to various
chemical processes established so far. The tests may yield three possible results: 1) exclusion – meaning
the samples are different and therefore must have originated from different sources; 2) inconclusive –
it is not possible to be sure based on the results of the test whether the samples have similar DNA
types. This would normally appear in situations wherein DNA procedure was not followed or there was
contamination of the samples; and 3) samples are similar and could have originated from the same
source – this is inclusion. There are three (3) possible results: exclusion, inconclusive or inclusion. In
assessing the probative value of DNA evidence the court should consider the following: 1) the
collection of the samples 2) how the samples were handled 3) the possibility of contamination 4)
procedure followed in analyzing the samples.
 The matter of appreciating the age of the victim, either as an element of the crime or as a qualifying
circumstance, was settled when the Court, in the case of People vs. Pruna (G.R. No. 138471. October
10, 2002), laid down the following guidelines:
1. The best evidence to prove the age of the offended party is an original or certified
true copy of the certificate of live birth of such party.
2. In the absence of a certificate of live birth, similar authentic documents such as
baptismal certificate and school records which show the date of birth of the victim would suffice
to prove age.
3. If the certificate of live birth or authentic document is shown to have been lost or
destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim’s mother or
a member of the family either by affinity or consanguinity who is qualified to testify on matters
respecting pedigree such as the exact age or date of birth of the offended party pursuant to
Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following
circumstances:
a. If the victim is alleged to be below 3 years of age and what is sought to be proved is
that she is less than 7 years old;
b. If the victim is alleged to be below 7 years of age and what is sought to be proved is
that she is less than 12 years old;
c. If the victim is alleged to be below 12 years of age and what is sought to be proved
is that she is less than 18 years old.
4. In the absence of a certificate of live birth, authentic document, or the testimony of the
victim’s mother or relatives concerning the victim’s age, the complainant’s testimony will suffice
provided that it is expressly and clearly admitted by the accused.
5. It is the prosecution that has the burden of proving the age of the offended party. The
failure of the accused to object to the testimonial evidence regarding age shall not be taken against
him.
The trial court should always make a categorical finding as to the age of the victim.

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B. DOCUMENTARY EVIDENCE

Sec. 2. Documentary evidence. — Documents as evidence consist of writing or any material containing
letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their
contents. (n)

Ultimate test: “material” on which these are written

Photograph of writing – subject of inquiry  documentary (Francisco); in actuality, treated as an object, this is
the GR. So read the contents to highlight the same.

1. BEST EVIDENCE RULE

Sec. 3. Original document must be produced; exceptions. — When the subject of inquiry is the contents of a
document, no evidence shall be admissible other than the original document itself, except in the following
cases:

There’s only a requirement of presenting the original if the contents of the document is subject of the inquiry. If
it is not subject of the inquiry, there is no need to present the original. So, only when the contents thereof are
subject of the inquiry do you need to present the original.

There are exceptions to this rule on presenting the original. First, when it has been lost, destroyed without bad
faith on the part of the offeror, Second, it is in the possession of the adverse party and third that there are long
accounts and that there is great waste of time to present it and the only thing to establish is a general fact or
that the documents are in the custody of a public officer and it is recorded.

Original document may either be private or public. There is difference in authentication, S19-33 R132

Best Evidence Rule – When the subject of inquiry is the contents of a document, no evidence shall be
admissible other than the original document itself

Exceptions: When the original

1) has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the
offeror;
2) is in the custody or under the control of the party against whom the evidence is offered, and the latter
fails to produce it after reasonable notice;
3) consists of numerous accounts or other documents which cannot be examined in court without great
loss of time and the fact sought to be established from them is only the general result of the whole;
and
4) the original is a public record in the custody of a public officer or is recorded in a public office

(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on
the part of the offeror;

Now, let’s take note of loss or destruction. In terms of showing to the court that it was actually lost, would you
need to present another witness? If that is necessary then you could present another witness. If you could
establish and convince the court that it was lost without presenting other witnesses then it is acceptable. Then
on the order of presenting authentic documents where the contents of the subject document are being
recited, take note what are the examples of this? There could be a memorandum of agreement or there could

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be an exchange of correspondence wherein portions of the terms and conditions have been recited. This
normally happens when lawyers draft voluminous contracts and there is an exchange of correspondence
between the lawyers. At some point they could agree on this particular provision and this could be a recital of
some authentic document. It is also possible that there is a memorandum of agreement or a written
agreement for that matter. A simple piece of paper reciting the general structure of an agreement may be a
basis to establish that this is truly the terms and conditions agreed upon by the parties.
Let us take this one at a time. In a scenario under the first exception that it has been destroyed or lost, you see
here a situation wherein you cannot present the original. Because you cannot present the original, could you
immediately present a copy or a recital of its contents in some authentic document or present a witness in that
order? No. Even if, let’s say it is lost, you just don’t say, “Your Honor, it is lost.” You will have to lay a basis first of
the following: that it actually existed and second that it has been lost or destroyed. And third that there is no
bad faith on the part of the person offering the same. So if you could lay those bases then you could present
not the original because the original could no longer be presented but you will present a copy, a recital of the
same in some authentic record or document and third presentation of a witness or testimonial evidence.

(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;

The second exception is when the same is in the possession of the adverse party. Just like the other exceptions,
you have to establish existence but I think the most important thing that you have to establish here is that
there was notice, that there was notice given to the adverse party to produce the same and that despite notice
there was failure to surrender or deliver or despite notice there was refusal to surrender the document. The
notice is that which initiates this secondary evidence. Without such notice even if you believe the fact that it is
in the possession of the other party, you don’t give the notice, then it’s useless. However do not confuse the
notice here with the notice under Rule 27. Under Rule 27 if you want to avail of the mode of discovery, you give
a notice for production or even motion for production or inspection of paper, books and documents.

(c) When the original consists of numerous accounts or other documents which cannot be examined in
court without great loss of time and the fact sought to be established from them is only the general result of
the whole; and

The third is long accounts. What are examples of long accounts? Balance sheets, ledgers, voluminous invoices,
voluminous delivery receipts. These are examples of long accounts. And when did you first meet long accounts
as a provision of law? On the rule on commissioners under Rule 32, Section 2 when the parties could not agree,
when they do not consent or the court says that the matter should be referred to the commissioners, this is
one of the grounds.

(d) When the original is a public record in the custody of a public officer or is recorded in a public office.
(2a)

The court is in possession of a public document. When it comes to this, all you need to present is a certified
true copy. If the same is in the possession of a public officer there is this rule on Rule 132 on irremovability of a
public record. Considering that you cannot remove a public record except upon order, then it would be enough
for you to present a certified true copy of the document. But when do I need to present an original which is
recorded in the public office? When its authenticity is being disputed. When the entries therein are being
disputed but of course there should be a court order. Without the court order, the person in custody of the
document will not present the original.

1) relevant
2) NOT excluded by law/Rules

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 3) Authenticated – identified

Drugs - Rule: it should be presented; that it was the same drug/s taken when apprehended

Best Evidence – opportunity to examine it: where right depends; reason why original is presented

Prudent lawyer keeps the original of an actionable document and present it when called for during
examination.

Admission that photocopy is a faithful representation – proceed after comparison

You could initiate an action in the absence of an original S7 R8 (original/copy is attached) and you could present
secondary evidence during trial.

BER – to prevent fraud and avoid inaccuracy and falsification

S8 R8 How to contest such document (genuineness and due execution)

S2 R32 (Commissioners for long accounts)

Present originals:
 Misappropriation case of public funds
 BP 22 (several counts)

Irremovability of public record S26 R132

Rationale for Originals:

1. copies and oral testimony more prone to inaccuracy and subject to fraud
2. appearance furnishes information: authenticity

Private document S20 onwards

Sec. 4. Original of document. —

(a) The original of the document is one the contents of which are the subject of inquiry.
(b) 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.
(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. (3a)

Original documents
1) One the contents of which are the subject of inquiry.
2) 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.
3) When an entry is repeated in the regular course of business, one being copied from another at or near
the time of the transaction, all the entries are likewise equally regarded as originals

When the contents are the subject of the inquiry, it is an original. Does it mean that even if it is a photocopy
but the contents thereof are subject of an inquiry, it becomes an original? No. An original should be an original.
It is not the fact of an agreement or that the contents of which are subject of an inquiry that makes it the
original. Now aside from that on Rule 130 there is also another definition of an original, item b: when a

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document is in two or more copies executed at or about the same time, with identical contents, take note at or
about the same time with identical contents. It may be executed at or about the same time but does not have
identical contents, then the other one cannot be considered as an original. How about a duplicate copy or a
duplicate original? In the past or even today, courts still use typewriters and they too use carbon paper. They
insert in between the papers carbon papers to produce 3 or 4 or 5 copies. Are these duplicate originals? Yes,
they are duplicate originals. What the law says is that it should be executed at or about the same time and that
its contents are the same. Now let us not strain our imagination in pushing it that let us say because of so many
copies, around 12 copies of a document, I signed 6 at this time and because I had a meeting I forgot all about it
and I signed the rest the following day. Will it still be regarded as an original? Yes. It is still regarded as an
original. But then sir, it doesn’t appear that it was executed at or about the same time? But it has identical
contents and I tell you, it will still carry the same date. If you do not put in the same date, that’s your problem
because your opponent would say, how come there are two sets of documents executed with identical
contents? So that is an example of item b.

Now you have item c: when an entry is repeated in the regular course of business, one being copied at or near
the time of the transaction. Take note of entry. What is important here is entry. That entry was made at or near
the time of the transaction. To give you an example of this let us say I am a trader. Of course there are delivery
receipts to my warehouse, there are releases to the customers and there will be official receipts or invoices. All
these will be imputed at or near the time of the transaction. What is the reason for this? Why is this regarded
as an original? Because there is no room for you to fabricate, that is the concession. But could it be fabricated,
yes, could it be tampered with, yes, that is why in exception to hearsay rule is entries made in the ordinary
course of business. And why is it an exception? The person who made the entry is either dead or unavailable
such that reliance is made on the document because it was made in the regular course of business. But there is
apparently no rule in that way. Could it be disputed? Yes. All of those exceptions under the hearsay rule are not
absolute. It could be disputed, it could be subjected to cross examination. The witness may be subjected to
cross-examination.

1. Original is best evidence - by the very nature and NOT inquiry which makes it original
2. Document is in 2/more copies executed “at/about the same time,” with identical contents – executed
more or less at the same time
3. Entry repeated in the regular course of business “at/near the time of the transaction” – fairly
contemporaneous with the transaction

Court orders stamped with “original signed” – NOT originals

Secure a certified true copy or duplicate copy; act of execution includes signing; near time as it was executed.

Counterparts
Phils. A peace and order problem
HK B sars
- document executed in counterparts – NOT originals from the definition but authorities consider them
as originals (Wigmore, Warton)
How? Clause that “this agreement could be signed in counterparts.”

Entries are repeatedly copied, NOT executed at/near the time of the transaction – attained a certain level of
trustworthiness; less room for error; NOT doubtful but could still be disputed; even without signatures, but
there must be entries

If NOT logged in (dispatch and receive) – NO longer in the regular course of business

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2. SECONDARY EVIDENCE

Sec. 5. When original document is unavailable. — When the original document has been lost or destroyed,
or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its
unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in
some authentic document, or by the testimony of witnesses in the order stated. (4a)

Requisites:

(1) loss, destruction, unavailability

- reasonable probability of loss is sufficient; dispensed with by admission

(2) existence
- proven by documentary, object or testimonial evidence (any form acceptable under the law);
otherwise, it will breed fraud, falsification and inaccuracy
- separate and apart from secondary evidence (copy, recital, testimony)  contents, the
subject of inquiry

(3) withOUT bad faith; EXC: destruction in the ordinary course of business, by mistake, NO reasonable
suspicion of fraud
- cause of loss of destruction; presumption under R131 on suppression of evidence

Sec. 6. When original document is in adverse party's custody or control. — If the document is in the custody
or under the control of adverse party, he must have reasonable notice to produce it. If after such notice and
after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be
presented as in the case of its loss. (5a)

Adverse Party may be the plaintiff or defendant in custody/control

Requisites:

(1) custody/control of AP
(2) reasonable notice to produce it
- unlike an actionable document where the court gives order of inspection S8 R8
(3) failure to produce
(4) existence (satisfactory proof)

If original was NOT produced, the fact that the original document is later produced does NOT render erroneous
the previous admission of SE.

If original was produced, NO need for SE.

Once notice is given, there is a duty to comply.

What if original contradicts SE?

Court weighs evidence, judge appreciates

“copy” – reproduction of original

K photocopy before signing – original

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K photocopy after signing – copy

“some authentic document” – either private or public

Proponent must know that he has done all in his power to secure the best evidence by giving to the adversary
notice to produce it.

To be later expounded on by the lawyer:

Memorandum of Agreement – skeleton
REM on loan obligation

“testimony” – signed, read or heard it read (verbal accuracy NOT required; sufficient to state it in substance)

There’s a hierarchy of SE because memory may betray you.

Instant demand sufficient where document is at hand in the court room; NO need for previous notice

Title to land: a) owner’s

b) original at the RD
- encumbrance NOT found in owner’s copy; attack the original but it CANNOT be removed under S26 R132

Sec. 7. Evidence admissible when original document is a public record. — When the original of document is
in the custody of public officer or is recorded in a public office, its contents may be proved by a certified copy
issued by the public officer in custody thereof. (2a)

Certification – “in substance” is all that is required; that:

 correct copy
 under official seal
 with authority to certify
 duly signed
NO need to employ “certify” or “certificate”

cf Rule 132 §25-27

Sec. 25. What attestation of copy must state. - Whenever a copy of a document or record is attested for the
purpose of evidence, the attestation 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. (26 a)
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
inspection of the record is essential to the just determination of a pending case. (27 a)
Sec. 27. Public record of a private document. - An authorized public record of a private document may be
proved by the original record, or by a copy thereof, attested by the legal custodian of the record, with an
appropriate certificate that such officer has the custody. (28a)
To prove loss, get affidavits of loss from all the people who possibly has a copy of the original, e.g. Notarized
Deed of Sale
)1 Vendor

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)2 Vendee
)3 Notary public
)4 Clerk of the court which gave the notary public commission
)5 Bureau of Archives

Requisites for admission of secondary evidence, according to grounds:

)1 Original has been lost or destroyed, or cannot be produced in court
.a Prove execution or existence
.b Prove cause of unavailability without bad faith of the offeror
.c Proof of contents in the following order
Copy
Recital of its contents in some authentic document, or
Testimony of witnesses
)2 Original is in the custody or under the control of the adverse party
.a Adverse party had reasonable notice to produce the original (Subpoena duces tecum)
.b Proof of the original’s existence
.c Adverse party fails to produce the original
.d Proof of contents in the following order
Copy
Recital of its contents some authentic document, or
Testimony of witnesses
)3 Original consists of numerous accounts or other documents which cannot be examined in court without
great loss of time and the fact sought to be established from them is only the general result of the whole;
and
)4 Original is a public record in the custody of a public officer or is recorded in a public office – contents may
be proved by a certified copy issued by the public officer in custody thereof
.a Rule 132 §25: What attestation of copy must state
Copy is a correct copy of the original, or a specific part thereof
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
.b Rule 132 §27: Public record of a private document - may be proved by
Original record, or
By a copy thereof
)a Attested by the legal custodian of the record
)b With an appropriate certificate that such officer has the custody

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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. (6a)

Similar rule under R23 Depositions (Written Interrogatories)

Documentary evidence or the Best evidence. It must be the original. Only when the contents is the subject of
the inquiry. To use Secondary evidence, loss or destruction of the original must be established first.

Possession of adverse party - Notice to the said adverse party is very important.

If copy is available, present the copy; if not, recital by witness.

Secondary Evidence – first show that the primary evidence is NOT obtainable
Requisites: LAYING THE BASIS

1) Proof of Existence/Execution
Reason: if NO original, NO secondary; execution is the accomplishment of a thing

State events and circumstances surrounding execution to prove existence.

Docs > 30 yrs. old – NO need for proof of execution

2) Lost, destroyed/CANNOT be produced

lost – CANNOT be discovered; destroyed – NO longer exists; cannot be produced – unavailable

3) Cause of unavailability withOUT bad faith - NO bf, NO intention to suppress document; presumption:
detrimental to his cause

4) Diligent search – bona fide; fruitlessly made in the place where it is most likely to be found; exhausted
all sources of information and means of discovery

Reasonable certainty is sufficient.

Reasonable suspicion is NOT enough.

e.g. house burned down – some reasonable certainty that the document is in such house so the
court may be convinced for the presentation of secondary evidence; need NOT be proved beyond
the possibility of error/mistake

Lay the basis then present secondary evidence:

 Copy
 Recital (authentic – genuine, need NOT be a public document)
 Testimony

Laying the basis/foundation – When made? During trial (witness on the stand)

Proof of non-production in court: In order to introduce secondary evidence of a writing, it is not necessary to
show that the original has been lost or destroyed, but it is sufficient to show that it is deposited in a place from
which it cannot be removed for the purpose of being produced in court, or that it is not in the possession or
under the control of the party seeking to show the facts and that he is unable to produce it within a reasonable
time after the exercise of reasonable diligence.

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3. PAROL EVIDENCE RULE

Sec. 9. Evidence of written agreements. — When the terms of an agreement have been reduced to writing,
it is considered as containing all the terms agreed upon and there can be, between the parties and their
successors in interest, no evidence of such terms other than the contents of the written agreement.
However, a party may present evidence to modify, explain or add to the terms of written agreement if he
puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;
(b) The failure of the written agreement to express the true intent and agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their successors in interest after the
execution of the written agreement.
The term "agreement" includes wills. (7a)

Parol Evidence Rule: 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.

Exceptions: a party may present evidence to modify, explain or add to the terms of the written agreement if he
puts in issue in his pleading
1) An intrinsic ambiguity, mistake or imperfection in the written agreement
2) failure of the written agreement to express the true intent and agreement of the parties
3) validity of the written agreement; or
4) The existence of other terms agreed to by the parties or their successors in interest after the execution
of the written agreement

If the ground is subsequently-agreed terms, the subsequently-agreed terms must also be put in issue in the
pleadings. The rule applies only to the terms of an agreement.

If the evidence sought to be admitted refers to matters other than the terms of the agreement (e.g. statement
of facts), then the PER does not apply, such evidence is admissible.

PER applies only to the parties to the agreement. It does not apply where PER is invoked against a litigant who
is a stranger to the agreement.

Requisites for mistake as exception to PER:

a) mutual between the parties
b) of fact, not of law
c) alleged and put in issue in the pleadings
d) proved by clear and convincing, not merely preponderance of, evidence

The rule on self-defense also requires that the circumstances of self-defense be proven by clear and convincing
evidence.

Statute of Frauds: If the following agreements are not in writing and subscribed, it is unenforceable and
evidence thereof is inadmissible
i. not to be performed within a year from the making thereof
ii. special promise to answer for the debt, default, or miscarriage of another;
iii. agreement made in consideration of marriage, other than a mutual promise to marry;

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 iv. agreement for the sale of goods, chattels or things in action, at a price not less than P500, unless the
buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such
things in action or pay at the time some part of the purchase money;
v. lease for more than 1 year, or sale of real property or of an interest therein;
vi. representation as to the credit of a 3rd person.

Exceptions
i. failure to object to the presentation of oral evidence, or
ii. acceptance of benefit under the agreement

Distinguish

Parole Evidence Rule Best Evidence Rule

No original involved
No issue as to the contents of a
writing
Parol evidence is offered
Presupposes that original is in
court
Effect is can not add, subtract, or
explain the contents
Invoked only if the controversy is
between parties to the
agreement
Applies only to agreements and
wills
Look at the original
Issue is contents of a writing
Secondary evidence is offered
Applies when the original is not
available
Effect is can not present any
evidence on the contents other
than the original
Invoked by anybody, whether a
party to the instrument or not
Applies to all kinds of writing

In the best evidence rule, you have to present the original because the contents thereof are the subject of the
inquiry, there is already a dispute.

In parole evidence rule, it only states that the agreement is the repository of what the parties had agreed upon.
So if you try to introduce extrinsic evidence or parole evidence, as a rule, could you do it? NO, because that will
be in violation of the parole evidence rule, which says that the agreement will be the repository of what the
parties and their successors-in-interest have agreed upon.

Parties bound by the written agreement, it being the repository/memorial of what has been agreed upon; NO
substitute, change NOR alteration allowed. One CANNOT produce extraneous evidence.

Under the second paragraph, if you introduce extrinsic evidence, if you are allowed to introduce extrinsic
evidence, according to the provisions of the second paragraph, that is termed parole evidence and NOT the
parole evidence rule.

The first paragraph is the parole evidence rule. The second paragraph provides the instances when you could
present parole evidence.

Could you just present at any given time? NO. You have to put it in issue in the pleadings. What do you mean by
that? If you are the complainant, put it as an issue in the complaint. If you are the defendant and you would

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want to raise it as one of your defenses, put it in issue in the answer. Or the plaintiff after receiving the answer
might want to introduce a new matter in a reply, then put it there, put it in issue in the pleadings. If you don’t
put it in issue in the pleadings, could you introduce parole evidence? Not the parole evidence rule but could
you introduce parole or extrinsic evidence? No, you cannot.

Is there a remedy if by chance I did not put it in issue?

Yes, you amend the pleadings to conform with the evidence under S5 R10 because under that category of Rule
10, if the other party doesn’t object, you can amend the pleadings or if the other party objects, you can still
amend, you file a motion to amend your pleadings to conform with the evidence already presented. Let us say
you were successful in presenting it and no other objection, amend it in accordance with evidence presented.

You can only amend it, if you were able to present the evidence. What if you were not able to present the
evidence because the other party objected it, can you still amend it? Yes, with leave of court. Because you can
amend as a matter of right before an answer is filed and after an answer is filed with leave of court. So it is very
important that you put it in issue, unless you put it in issue, you cannot modify, explain or add.

However, court can still render valid judgment even if NOT amended so long as it is proven by evidence.

2002 case in PER

Bank Manager approached by Spouses for a P800,000 loan for 6 months with 6% interest
- default
- sued for recovery of amount
- debtor now says that loan is for 5 yrs. with 3% interest
SC: NO PER; effect: changes agreement

The document is the embodiment of the agreement and those NOT written are considered waived and
abandoned. It is the expositor of the parties’ intentions and the only instrument of evidence in respect of that
agreement.

PER gives certainty to a transaction which has been reduced to writing, more certain and accurate than fleeting
memory.

Put in issue is to allege and make an issue; put forth such issue.

PER Exceptions: conditions for presentation of parole evidence:

a. intrinsic ambiguity, mistake or imperfection in the written agreement.

i. intrinsic/latent ambiguity – discoverable only when applied to the circumstances; already

existing; you do NOT create; clear words but doubtful application

e.g. I am giving my 1987 Mitsubishi Lancer color yellow to Mr. Ong. And there are two
Mr. Ongs in my class. On the face of the document, there appears to be no ambiguity.
But if you start to implement or enforce the same then apparently there is an
ambiguity. On the face of the agreement or document, there is already a problem. And
therefore let us say, I am giving my 1987 Mitsubishi Lancer to ___. It was left blank. Is it
something that could be subject to a modification, an explanation? Could we present

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 parole evidence? NO because we are going into the intent of a person which we
CANNOT do.

Parol admissible on collateral matter/s

ii. mistake of fact

a. mistake of fact
b. mutual
c. alleged and proven by clear and convincing evidence

There was a previous agreement which was NOT reflected in the instrument and it was a
common agreement. Reformation may be had.

iii. imperfection
- There was an agreement embodied but was imperfectly worded; due to poor drafting;
includes an inaccurate statement

e.g. The same example could be given. Let us say I am giving my property in Bulacan, is
it clear? No, I need to give the details of the same. Now, take note that there are 3
kinds of ambiguities: extrinsic, intermediate, intrinsic. Intrinsic ambiguity falls under
this. Extrinsic ambiguity doesn’t fall under parole evidence. Intermediate ambiguity
would also fall under parole evidence. What is that? Sir, there is an issue as to how you
describe a particular subject matter or item. I was referring to an equipment or
machine. I was referring to 16,000 capacity. On the face it appears to be clear however,
my wording is equivocal, not unequivocal but equivocal which gives two meanings, it
could be capacity in terms of working capacity or capacity in terms of production. In
which case, that is an intermediate ambiguity.

b. failure of written agreement to express the true intent and agreement of the parties

e.g. written: sale but the intent: truly a mortgage

Let us say that there was really no contract, could you present parole evidence? There was this written
contract presented with all the formalities and showing that I signed it but I never signed it. Could
parole evidence be presented? Yes. If I was induced, if there was misrepresentation, if there was fraud,
could parole evidence be presented? Yes. Could parole evidence be presented to legalize an otherwise
illegal contract? No. Could parole evidence validate an otherwise void agreement? No.

So take note that it goes to the intent of the parties. Even if there is an agreement but that is not the
intent of the parties, then you could present parole evidence.

If there is this agreement and because I am not schooled, the agreement was titled deed of sale. My
intention only was to place a mortgage but because I do not know the legal implications, I only placed
deed of sale. What was the true intent of the parties? To execute a mortgage. Could parole evidence be
presented? Yes. Does it mean that if we are to present parole evidence it is only limited to written
documents? No. You could also present testimonies of witnesses. It’s not limited to paper. On
introduction of parole evidence in the second paragraph, you could present witnesses who saw how
the document was executed, witnesses who heard how the agreement was negotiated, they could sit
on the stand.

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 c. validity of the written agreement

- An illegal contract could not be validated by parole evidence. A void contract cannot be validated by
parole evidence; whether valid/NOT; in questioning, parole evidence may be presented

inducement, incapacity, fraud, illegality, misrepresentation

 to establish, NOT validate the agreement

d. existence of other terms agreed upon by the parties subsequent to the agreement or after the
execution of the document

- tangible evidence: memorandum, amendment, supplement

It only means that let us say an agreement has been executed today between Mr. Ong and me but let’s
say tomorrow Mr. Ong said that was not really his intention, the agreement was for me to deliver on a
weekly basis 400 dozens of eggs and he said that it’s too much for my production of eggs so I think the
general intention was only for 200 dozens of eggs. So could we execute another agreement? Yes. But it
was a simple correspondence? Could we enter into a separate agreement? Yes. And could you prove it?
Yes. So long as it is after the execution of the agreement. So you see here an agreement executed at
some particular date and there maybe subsequent agreement between the parties and their
successors-in-interest after the agreement. Take note that the agreement here would include wills.

e.g. Lease agreement but with option to purchase made by oral discussion – this can be
presented as there is subsequent agreement

In the presentation of parole evidence, you may add or modify based on any of the grounds.

4. INTERPRETATION OF DOCUMENTS

Sec. 10. Interpretation of a writing according to its legal meaning. — The language of a writing is to be
interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended
otherwise. (8)

Interpret – give meaning

Construe – ascertain intent (go beyond)

Matters of substance – you can agree

Matters of form – you CANNOT agree (solemnities)
Matters of procedure – you CANNOT agree (law of the forum)

Sec. 11. Instrument construed so as to give effect to all provisions. — In the construction of an instrument,
where there are several provisions or particulars, such a construction is, if possible, to be adopted as will
give effect to all. (9)

- give effect; harmonize; separability clause

Sec. 12. Interpretation according to intention; general and particular provisions. — In the construction of an
instrument, the intention of the parties is to be pursued; and when a general and a particular provision are

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inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is
inconsistent with it. (10)

- intention pursued as to unclear provisions (equivocal); particular provision prevails

Sec. 13. Interpretation according to circumstances. — For the proper construction of an instrument, the
circumstances under which it was made, including the situation of the subject thereof and of the parties to
it, may be shown, so that the judge may be placed in the position of those whose language he is to interpret.
(11)

- situation of the subject and parties; to be able to interpret it better

Sec. 14. Peculiar signification of terms. — The terms of a writing are presumed to have been used in their
primary and general acceptation, but evidence is admissible to show that they have a local, technical, or
otherwise peculiar signification, and were so used and understood in the particular instance, in which case
the agreement must be construed accordingly. (12)

- word has a general and technical meaning; e.g. “labor dispute,” “demand,” “mouse”

Sec. 15. Written words control printed. — When an instrument consists partly of written words and partly of
a printed form, and the two are inconsistent, the former controls the latter. (13)

Sec. 16. Experts and interpreters to be used in explaining certain writings. — When the characters in which
an instrument is written are difficult to be deciphered, or the language is not understood by the court, the
evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to
declare the characters or the meaning of the language. (14)

Sec. 17. Of Two constructions, which preferred. — When the terms of an agreement have been intended in a
different sense by the different parties to it, that sense is to prevail against either party in which he supposed
the other understood it, and when different constructions of a provision are otherwise equally proper, that is
to be taken which is the most favorable to the party in whose favor the provision was made. (15)

e.g. a stipulation provides:

“payment of the monthly amortization shall be made by the other party once the mortgaged property
is taken out from I Bank”
who is the other party?
MoA executed November 2003
Takeout December 2004
- if parties CANNOT agree, the court shall decide

Sec. 18. Construction in favor of natural right. — When an instrument is equally susceptible of two
interpretations, one in favor of natural right and the other against it, the former is to be adopted. (16)

Sec. 19. Interpretation according to usage. —An instrument may be construed according to usage, in order to
determine its true character. (17)

- instrument is construed; e.g. “kristo” in cockfights (accuracy of bets)

Rules of interpretation of documents:

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  Interpretation of a writing according to its legal meaning in the place of execution
 Instrument construed so as to give effect to more provisions
 Interpretation according to intention of the parties
 particular over general
 Interpretation according to circumstances of the parties and the subject
 Terms presumed to be used in primary and general acceptation, evidence of local, technical, or
peculiar signification use admissible
 Written words control printed
 When the characters are difficult to decipher, or the language is foreign, the evidence of
experts and interpreters is admissible
 When the terms of an agreement have been intended in a different sense by the different
parties to it, that sense is to prevail against either party in which he supposed the other
understood it
 When different constructions of a provision are otherwise equally proper, that is to be taken
which is the most favorable to the party in whose favor the provision was made
 preference for natural right
 usage may be considered

Statutory rules of interpretation

 If the terms are clear, the literal meaning shall control.
 If the words appear to be contrary to the evident intention of the parties, the intention shall
prevail
 In order to judge the intention of the contracting parties, their contemporaneous and
subsequent acts shall be principally considered.
 terms of a contract shall not be understood to comprehend things that are distinct and cases
that are different from those upon which the parties intended to agree
 If some stipulation of any contract should admit of several meanings, it shall be understood as
bearing that import which is most adequate to render it effectual.
 The various stipulations of a contract shall be interpreted together, attributing to the doubtful
ones that sense which may result from all of them taken jointly.
 Words which may have different significations shall be understood in that which is most in
keeping with the nature and object of the contract.
 The usage or custom of the place shall be borne in mind in the interpretation of the
ambiguities of a contract, and shall fill the omission of stipulations which are ordinarily
established.
 The interpretation of obscure words or stipulations in a contract shall not favor the party who
caused the obscurity.
 When it is absolutely impossible to settle doubts by the rules established in the preceding
articles
o the doubts refer to incidental circumstances of
- a gratuitous contract, the least transmission of rights and interests shall
prevail
- an onerous contract, the doubt shall be settled in favor of the greatest
reciprocity of interests
o If the doubts are cast upon the principal object of the contract in such a way
that it cannot be known what may have been the intention or will of the parties, the
contract shall be null and void.
 The principles of interpretation stated in the Rules of Court shall likewise be observed

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ELECTRONIC EVIDENCE

 applies to administrative, civil and criminal cases

 electronic document may either be public or private
 “electronic signature”
 R3 electronic evidence
 R4 best evidence
 R5 authentication
 R8 exception to the hearsay rule
 Digital signature
 R9 method of proof

Highlights:

 Admissibility – go back to S3 R128 (relevant and NOT excluded, authenticated)

 BER – original electronic data/information; include printouts and outputs readable by sight and other
means; subject to question
 Definition of electronic signature and digital signature; public and private key
 Electronic ID – each computer as its own ID; signature is NOT used as much
 Presumptions – relate with R131
 Authenticity – reliance on source and preparation, transmission & storage; who? person with personal
knowledge or person of competence; judge weighs evidence (through resolution)
 Hearsay exception – entries made “in the regular course of business” because of a certain level of
regularity and repetition observing the regular course of business, data may be expected to be reliable;
e.g. printout of a physical exam at NKI
 Ephemeral communication – NOT stored (nature of information); but by its very nature, it could be
stored (i.e. email, text)
 Photographs – audio and video recording; need to lay the basis; who testifies? a person with personal
knowledge or a competent individual who knows the facts and circumstances; rules in laying the basis
with respect to audio recording is more stringent under R128

Business Record as Hearsay Exception (Entries)

R130 S43 R8 S1 (Rules on Electronic

- entrant must be deceased or
unable to testify
- in a position to know the facts
therein stated
- made in his professional capacity
or in the performance of duty
- in the ordinary/regular course of
business/duty
Evidence )
- NO such requirement
- mere knowledge of the acts
sufficient; NOT personal
knowledge
- made by electronic, optical or
other similar means
- at or near the time of/from
transmission/supply of
information
- kept in the regular
course/conduct of a business
activity

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 - such was the regular practice to
make the memorandum, report,
record or data compilation

* all of which are shown by the

testimony of the custodian/other
qualified witnesses

C. TESTIMONIAL EVIDENCE

1. QUALIFICATION OF WITNESSES

Sec. 20. Witnesses; their qualifications. — Except as provided in the next succeeding section, all persons who
can perceive, and 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 ground for disqualification. (18a)

Qualifications of witnesses:
1) Can perceive
2) Perceiving
3) Can make known their perception to others

NOT grounds for disqualification:

1) Religious belief
2) Political belief
3) Interest in the outcome of the case, or
4) Conviction of a crime, unless otherwise provided by law, e.g.
a) State witness must not have been convicted of any crime involving moral turpitude [Rule 119,
Sec. 17 (e)]
b) Person who has been convicted of falsification of a document, perjury or false testimony is
disqualified from being a witness to a will (Art. 821 NCC)

Demonstration – demonstrate in court. For example, in witness stand, I can demonstrate this is how I slapped
the victim. How should you put this on record: The counsel or the interpreter should record that the witness
with his right hand struck the victim towards his cheek. Demonstration is different from demonstrative
evidence.

Testimonial evidence - competency of the witness and ability to pass on info/relay info to the court. How will
you know if a witness is qualified. If people perceive and perceiving and can make known his perception. A
witness can perceive now; but tomorrow he cannot --- such is not competent witness. One may be very
intelligent; but cannot perceive – such is not competent a competent witness as he only testifies on merely
hearsay and not on his personal knowledge.

Witnesses: qualifications; minimum requirements:

(1) Can perceive – senses

(2) Can make known his perception

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Witnesses can be impeached on cross examination by reason of interest or bias. Cross examination is to
impeach, to test truthfulness or accuracy of testimony, free from bias or interest, and to elicit facts bearing
upon the issue.

Conviction – unless otherwise prevented

e.g. witnesses convicted of falsification of document, perjury or false testimony CANNOT be made witnesses to
a will, state witness under S17 R119

Sec. 21. Disqualification by reason of mental incapacity or immaturity. — The following persons cannot be
witnesses:
(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) Children whose mental maturity is such as to render them incapable of perceiving the facts
respecting which they are examined and of relating them truthfully. (19a)

For a mentally defective person to be a witness, he must be mentally capable at the time of production, even if
he was not so at the time of perception. A child must be mentally mature both at the time of perception and at
the time of production.

With regard to the subject matter of the testimony, we must make a distinction between absolute
disqualifications and relative disqualifications. Objections based on absolute disqualifications may be raised
upon the calling of the disqualified witness. Objections based on relative disqualifications may be raised when
it becomes apparent that the subject matter of the testimony covers inadmissible matters.

Absolutely disqualified witnesses:

i. Can’t perceive
ii. Not perceiving
iii. Can’t make known their perception to others
iv. Mental condition, at the time of their production for examination, render them incapable of
intelligently making known their perception to others
v. Mental maturity is such as to render them incapable of perceiving the facts respecting which they are
examined and relating them truthfully
vi. Marital disqualification
vii. Parental and filial privilege
Relative disqualifications:
i. Dead man’s statute
ii. Marital communication privilege
iii. Attorney-client privilege
iv. Attorney's secretary, stenographer, or clerk concerning any fact the knowledge of which has been
acquired in such capacity
v. Physician-Patient Privilege
vi. Priest-Penitent Privilege
vii. State Secrets

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Disqualification by reason of mental incapacity or immaturity

1. Mentally incapacitated at the time perceived, at the time of his production as a witness – cannot be a
witness

2. Mental immaturity – a child/minor

CHILD WITNESS EXAMINATION RULE

If placed on the stand, age is NOT really considered. It is his perception. The parameter is that he should
know what is good and bad, consequences of telling a lie, reason why he is placed on oath.

Competency examination determined/assessed by the judge through his question, Do you know what it is
like to tell a lie? Its consequences? Etc.

Expanded – can bring support personnel, item

There can be video recording, deposition. Can be asked leading questions, hearsay so long as complies with
certain requirements. Confidential documents, destroyed after a certain period

deaf-mute – only a limitation to perception; can be a witness; use an expert (interpreter) to verbalize the signs
and communication; sign language; when he sits at the stand, the verbal statements of such expert are
recorded

what if such interpreter is a family member or someone who knows the sign language? there’s still a need to
qualify

insane – may be a witness

person previously placed in an institution – insanity is presumed to continue under R131; must be sane at the
time of production so he can make known his perception to others

what about an interview made immediately? admissible as res gestae, hearsay exception (e.g. media interview
while an event is occurring)

drug use – must be established during examination

if insane when you saw – NOT admissible; he CANNOT synthesize; e.g. Alzheimer’s

how are NON-believers of God sworn? through an affirmation – a confirmation that he will tell the truth
withOUT relying on a God, NO fear

witness – placed on oath regardless of belief on a God

credibility – determined later

idiot – CANNOT testify

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mental retardate – distinguish: if slight, can be a witness because he can perceive; if absolute, he CANNOT
testify

autistic – determine level of autism

 mental capacity – material (mental condition)

 mental immaturity

Rule on child examination applies to both civil and criminal cases.

 Child knows what is good and bad

 Child tells the truth and knows the consequences of false testimony
 Knowing the oath (why he is placed at the stand) + can perceive and make known his perception
(competency exam)
 Guardian is entitled to notices, but CANNOT participate; similar rule in case of default
 Leading questions may be asked, also provided under R132 S10 (5 exceptions)

Sec. 22. Disqualification by reason of marriage. — 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. (20a)

Requisites for marital disqualification rule:

1) Marriage subsists
2) Spouse is a litigant
3) No consent from the spouse-litigant
4) Not a civil case by one against the other, or a criminal case for a crime committed by one against the
other or the latter's direct descendants or ascendants.
GR: During their marriage, spouses may not testify for or against the other without the consent of the affected
spouse

Exceptions:
1) Civil case by one against the other, or
2) Criminal case for a crime committed by one against
)a The other or
)b Other’s direct descendants or ascendants
The marital disqualification rule refers to all matters and applies only during the existence of the marriage. It
can be invoked only if one spouse is a party to the action. It is an absolute disqualification and can be invoked
the moment that one spouse is called to testify.

This is a testimonial disqualification, as opposed to the testimonial privilege of ascendants and descendants
(Rule 130 §25). Hence, the witness has no say whether the objection is to be raised or not. The holder of the
privilege is the spouse-litigant. When the spouse-litigant consents to the testimony, the spouse-witness must
testify whether he wants to or not.

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cf Rule 130 §24 (a), Marital Communications

Sec. 24. Disqualification by reason of privileged communication. – The following persons cannot
testify as to matters learned in confidence in the following cases:
(a) The husband or the wife, during or after the marriage, cannot be examined without the consent
of the other as to any communication received in confidence by one from the other during the
marriage except in a civil case by one against the other, or in a criminal case for a crime committed
by one against the other or the latter's direct descendants or ascendants;

Marital Disqualification Marital Communications

Covers all matters regardless of
source
Applies during the marriage
A spouse must be a litigant
Invoked when a spouse is called
to testify
Covers only those communicated
by one spouse to another
Applies during and after the
marriage
A spouse need not be a litigant
Invoked when the testimony
appears to cover privileged
matters

Note that the exceptions under the marital disqualification and marital communications rule are the same.

Sec. 23. Disqualification by reason of death or insanity of adverse party. — Parties or assignor of parties to a
case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other
representative of a deceased person, or against a person of unsound mind, upon a claim or demand against
the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter
of fact occurring before the death of such deceased person or before such person became of unsound mind.
(20a)

Requisites for dead man’s statute:

1) The witness sought to be disqualified is the plaintiff
2) Executor, administrator or representative of a deceased person, or the person of unsound mind is the
defendant
3) Upon claim or demand against the estate of such deceased person or against such person of unsound
mind
4) As to any matter of fact occurring before the death of such deceased person or before such person
became of unsound mind
5) [NO counterclaim is filed]

 Parties, Assignors or Persons in whose behalf a case is prosecuted

 There’s action being prosecuted
 Against an Executor/Administrator/other Representative of a deceased person or Against a person of
Unsound mind
 Nature of action: claim against the estate/person of unsound mind

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Can a NON-party testify?
NOT an absolute bar, only against the estate

Witnesses to a contract NOT covered by prohibition: recent SC case

- only witnesses as they only attest; witnesses are NOT parties

- checks allowed; documents may be produced (contracts)

Why is it called the Dead Man’s Statute?

It pertains only to that portion referring to death, NOT insanity; thus, inaccurate as the prohibition covers both
death and insanity

Sec. 24. Disqualification by reason of privileged communication. — The following persons cannot testify as to
matters learned in confidence in the following cases:

Privileged Communications:
1) marital
2) attorney-client
3) physician-patient
4) priest-penitent
5) state secrets
 Relationship is a consideration, though NOT primary
 Nature of communication: confidential; makes it a disqualification

This is a rule of relative disqualification. Each of those enumerated is disqualified to testify as to specific
matters only. It does not disqualify them from testifying on matters not privileged. Hence, it is improper to
object to their testimony upon mere subpoena. One must wait until it becomes apparent that their testimony
covers matters that are privileged (e.g. upon asking of a question that covers privileged matters; when the
purpose of their testimony as admitted by the offeror covers privileged matters) before one may properly
object.

Though a relative disqualification, it is nevertheless a testimonial disqualification, as opposed to the testimonial

privilege of ascendants and descendants (Rule 130 §25). [careful not to be confused in the multiple meanings
of the word “privilege”] Hence, the witness has no say whether the objection is to be raised or not. When the
holder of the privilege (not necessarily the opposing party) consents to the testimony, the witness must testify.

Note that the wording of the law is to the effect that “(someone) may not be examined without the consent of
(another).” The law does not say that one can not testify or be examined over the objection of another. The
wording of the law is to the effect that an objection of the other party in the privileged communication is not
necessary for the privilege to hold. Consent of the other party in the privileged communication is an act that
needs to be proved for the testimony to be admitted. This is not to say that failure of a such a party to object
will never render such testimony admissible. This is to say that where the other party to the privileged
communication is not a litigant in the case, and privileged communication is offered in evidence without the
consent of such party, the litigant against whom the testimony is offered may object to its admission on the
ground of privileged communication. Where the other party in the privileged communication is a litigant, then
his failure to object will be taken as a consent to the testimony or a waiver of a privilege.

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The communication that is privileged need not be in any form. It can be oral or written.

The communication ceases to be privileged if knowingly communicated in the presence of 3 rd persons. In such a
case, the privilege may not be invoked at all. However, if the privileged communication was within the
surreptitious observation of a 3rd person, then the communication can be invoked if either the communicator
or communicatee called to testify. However, the privilege can not be invoked if the 3 rd person is called to testify.

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

 communication received in confidence

Requisites for Marital Communications Rule:

1) Communication received
a) From the spouse
b) In confidence
c) During the marriage
2) Without the consent of the spouse
Note that the marital communication rule applies even after the marriage. It applies only to matters
communicated by one spouse to another in confidence. It does not cover knowledge of matters that a spouse
obtains from a source other than other spouse.

It can be invoked even if neither spouse is a party to the action. It is a relative disqualification and can be
invoked only when it is apparent that the testimony would cover privileged matters.

The exceptions to the rule are:

1) Civil case by one against the other, or
2) Criminal case for a crime committed by one against the other or the latter's direct descendants or
ascendants
cf Rule 130 §22: Marital Disqualification Rule

Sec. 22. Disqualification by reason of marriage. – 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. (20a)
The marital disqualification rule refers to all matters and applies only during the existence of the marriage. It
can be invoked only if one spouse is a party to the action. It is an absolute disqualification and can be invoked
the moment that one spouse is called to testify.

1. Marriage - Info received in confidence (vs. sec 22). Legally married, except in civ/crim case by one against
the other or involving their ascendants or descendants.

S22 S24 (a)

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Marriage Privilege
During marriage During and after marriage
Any matter Confidential
Case of 1 spouse against the other Any case; need NOT be a case of 1
(testify) spouse; NO distinction
Invoked by spouse
Exceptions:
(1) civil case between 1 spouse against the other
(2) criminal case between 1 spouse against the other/latter’s direct
ascendants and descendants

Requisites:
1) Valid marriage – a de facto marriage is NOT a valid one; NOT legal
2) Confidential communication by nature, NOT intention
3) Privilege is claimed with regard to a communication, oral or written

e.g.

husband’s letter to his wife read to a close friend by her – there’s agency
husband’s letter to his wife read before an audience/in class – NO agency; intended to be for public
consumption

Person who overhears can testify – NO agency

* How parties desire to treat the communication related

(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 an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his
employer, concerning any fact the knowledge of which has been acquired in such capacity;

 communication made by the client to an attorney or advice given by the attorney

Requisites for attorney-client privilege:

1) Existence of an attorney-client relationship
2) Witness is an attorney
3) As to communication made by the client to him, or his advice given thereon
4) Communication was made in confidence
5) Communication was made in the course of, or with a view to professional employment
The privilege extends to the attorney's secretary, stenographer, or clerk concerning any fact the knowledge of
which has been acquired in such capacity. The difference being consent of only the client is needed for the
attorney to testify. However, the consent of both the attorney and the client is necessary for the attorney's
secretary, stenographer, or clerk to testify.

The attorney-client privilege does NOT apply if the attorney was sued by his client.

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2. Atty.-Client relationship – NOT just the course of employment (existing relationship), but also in view of
professional engagement (giving advise when client went to the office); likewise applies to the steno, sec, clerk
of the atty; subject to waiver by both client and lawyer; Joinders can share info

 By reason of communication; must be lawful

 Attorney-client relationship is important
 Any communication in the light of the relationship
 NOT just any communication; now limited: (1) in view to professional employment; and (2) in the
course of professional employment
 Lawyer gives advice; client gives communication
 NO written agreement required
 Engagement letter is ideal
 Private practitioners, single practitioners and small firms

“in the course of” – a question of fact

if merely exploratory – NO relationship yet; NOT yet privileged communication; NO advice

“with a view to” – NO relationship yet and communication is relayed/disclosed; regardless of the
consummation of the attorney-client relation

Requisites:
 Attorney-client relationship
 Communication made with a view to (courtship stage) or in the course of professional employment
 Covers lawyer’s secretary, stenographer, clerk – information is received in such capacity; need consent
of both lawyer and client (e.g. facts of the case, evidence)

(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 professional capacity, which information was necessary to
enable him to act in capacity, and which would blacken the reputation of the patient;

 advice or treatment given by the doctor or information doctor may have acquired in attending such
patient in a professional capacity (necessary to enable him to act in that capacity + would blacken
client’s reputation)

Waivers of the physician-patient privilege, cf Rule 28, Sec. 3 and 4

Sec. 3. Report of findings. — If requested by the party examined, the party causing the examination
to be made shall deliver to him a copy of a detailed written report of the examining physician
setting out his findings and conclusions. After such request and delivery, the party causing the
examination to be made shall be entitled upon request to receive from the party examined a like
report of any examination, previously or thereafter made, of the same mental or physical condition.
If the party examined refuses to deliver such report, the court on motion and notice may make an
order requiring delivery on such terms as are just, and if a physician fails or refuses to make such a
report the court may exclude his testimony if offered at the trial. (3a)
Sec. 4. Waiver of privilege. — By requesting and obtaining a report of the examination so ordered or
by taking the deposition of the examiner, the party examined waives any privilege he may have in
that action or any other involving the same controversy, regarding the testimony of every other

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 person who has examined or may thereafter examine him in respect of the same mental or physical
examination. (4)
Requisites for physician-client privilege:
1) Civil case
2) Witness is a person authorized to practice medicine, surgery or obstetrics
3) As to any advice or treatment given by him or any information which he may have acquired in
attending such patient in a professional capacity
4) Information was necessary to enable him to act in that capacity
5) Information would blacken the reputation of the patient
The old rule used the word “character” (what the person actually is). The new rules use the word “reputation”
(what people think of the person).

Note that the patient need not be the source of the information.

Only persons authorized to practice medicine, surgery or obstetrics are covered by the privilege. Hence, nurses,
midwives and other people who attend to the ill can be called to testify as to any matter.

The privilege does NOT cover expert opinion as long as the witness does NOT testify to matters specifically
referring to the patient.

There is NO physician-patient privilege in criminal cases.

3. Doctor-patient privilege - Involves a civil case (i.e. medico-legal, autopsy report); advice given at the time
relationship exists; info acquired during relationship and there is a necessity to give advice
- Privilege applies if disclosure would blacken reputation of the patient; includes patients who have no freedom
of choice/insane/child/mentally immature
- this should be a civil case and the info received is in a professional relationship that if such is disclosed, it
would blacken reputation of the patient

e.g. if I visited MMC because of hypertension - such would not blacken my reputation but SARS, T.B. could
blacken reputation

Requisites:
 physician-patient relationship created
 civil case
 advice, treatment or information is acquired in a professional capacity

- relationship is created thru medical record; Doctor of Medicine (Medicine, Surgery, Obstetrics); psychiatrists
included; dentists NOT included but bound by their ethical standard

- interns, optometrists, midwife, hilot, iridology NOT included

- civil case – reputation v. the greater interest of justice; why? Autopsy report used in a criminal case

- criminal case NOT covered

- laboratory report – if with request from doctor, it is covered; if by patient’s initiative alone, NOT covered

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- “father of child” – pregnancy test: NOT covered

 outside of doctor’s concern (e.g. why it happened); only incidents but bound by ethical standards
 information necessary to attend to the patient
 would blacken the reputation of the patient (e.g. STD, impotency, frigidity, nervous breakdown, TB,
drug dependence and rehabilitation [in the Philippines])
 Does privilege extend to nurses, staff, medical technicians? NO; NOT covered

(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 advice given by him in his professional character in the course of
discipline enjoined by the church to which the minister or priest belongs;

 confession made to a minister/priest or advice given by such minister/priest in his professional

character in the course of discipline enjoined by his church

Requisites for Priest-Penitent Privilege:

1) Witness is a minister or priest
2) As to any confession made to or any advice given by him in his professional character
3) In the course of discipline enjoined by the church to which the minister or priest belongs
4. Priest/minister and penitent – If Mr. Ong shared his deepest darkest secrets to the priest who later gave him
advise, this is covered by the privilege; priest/minister must be enjoined by the discipline to which they belong

Requisites:
 confession made or advice given in a professional character
 in the course of discipline enjoined by the church of the minister/priest

- Mike Velarde and Pastor NOT covered; only Catholic religion enjoins you to confess

- look at the discipline (whether enjoined by the church)

- public confession at Luneta – if NOT enjoined, NOT covered

- confidential nature of confession

* Do NOT confuse with the rule with respect to privileged communication in libel.

In Brillante v. People, G.R. Nos. 118757 & 121571, October 19, 2004, Bobby Brillante, questions his convictions
for libel for writing and causing to be published in 1988 an open letter addressed to then President of the
Republic of the Philippines Corazon C. Aquino discussing the alleged participation of Atty. Jejomar Binay
(Binay), then the “OIC Mayor” and a candidate for the position of Mayor in the Municipality (now City) of
Makati, and Dr. Nemesio Prudente (Prudente), then President of the Polytechnic University of the Philippines,
in an assassination plot against Augusto Syjuco (Syjuco), another candidate for Mayor of Makati at that time.

On January 7, 1988, Brillante, then a candidate for the position of Councilor in Makati, held a press conference
at the Makati Sports Club which was attended by some 50 journalists. In the course of the press conference,
Brillante accused Binay of plotting the assassination of Syjuco. He further accused Binay of terrorism,

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intimidation and harassment of the Makati electorate. Brillante also circulated among the journalists copies of
an open letter to President Aquino which discussed in detail his charges against Binay.

Libel is defined under Article 353 of the Revised Penal Code as “a public and malicious imputation of a crime, or
of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause
the dishonor, discredit or contempt of a natural or juridical person, or to blacken the memory of one who is
dead.”

To be liable for libel, the following elements must be shown to exist: (a) the allegation of a discreditable act or
condition concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d)
existence of malice.

Article 354 of the Revised Penal Code states, as a general rule, that every defamatory imputation is presumed
to be malicious, even if true, if no good intention and justifiable motive is shown.

As an exception to the rule, the presumption of malice is done away with when the defamatory imputation
qualifies as privileged communication.

Privileged communication may either be absolutely privileged or conditionally privileged. The Court in Orfanel
v. People of the Philippines, 141 Phil. 519 (1969), differentiated absolutely privileged communication from
conditionally privileged communication in this manner:

…A communication is said to be absolutely privileged when it is not actionable, even if

its author acted in bad faith. This class includes statements made by members of Congress in
the discharge of their functions as such, official communications made by public officers in the
performance of their duties, and allegations or statements made by the parties or their counsel
in their pleadings or motions or during the hearing of judicial proceedings, as well as the
answers given by witnesses in reply to questions propounded to them, in the course of said
proceedings, provided that said allegations or statements are relevant to the issues, and the
answers are responsive or pertinent to the questions propounded to said witnesses. Upon the
other hand, conditionally or qualifiedly privileged communications are those which, although
containing defamatory imputations, would not be actionable unless made with malice or bad
faith.

Conditionally or qualifiedly privileged communications are those mentioned in, Article 354 of the Revised Penal
Code, to wit:

1. A private communication made by a person to another in the performance of any legal,

moral, or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative, or other official proceedings which are not of confidential nature, or of
any statement, report, or speech delivered in said proceedings, or of any act performed by
public officers in the exercise of their functions.

The purpose of affording protection to privileged communication is to permit all interested persons or citizens
with grievances to freely communicate, with immunity, to the persons who could furnish the protection asked
for. However, to shield such privilege from abuse, the law itself requires at all times that such petitions or
communications shall be made in good faith or with justifiable motives. If it is established that the
communication was made maliciously or to persons who could not furnish the protection sought, then the

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author thereof cannot seek protection under the law. As was explained by the Court in U.S. v. Cañete, 38 Phil.
253 (1918),

The plainest principles of natural right and sound public policy require that the utmost
possible freedom should be accorded every citizen to complain to the supervising, removing
and appointing authorities of the misconduct of the public officials with whom he comes into
contact, and like considerations make it equally proper that members of a religious organization
should enjoy equal freedom in bringing to the attention of the church authorities the
misbehavior of their spiritual leaders or of fellow-members. Manifestly, the right must be
exercised in good faith, and may not with impunity be made the occasion for the venting of
private spite. It is subject to the limitation and restriction that such complaints must be made to
a functionary having authority to redress the evils complained of; that they must be made in
good faith and that they must not be actuated by malice.

The fact that a communication is privileged does not mean that it is not actionable; the privileged character of
the communication simply does away with the presumption of malice, and the plaintiff has to prove the fact of
malice in such case. However, since the open letter and the statements uttered by Brillante during the January
7, 1988 press conference are defamatory and do not qualify as conditionally privileged communication, malice
is presumed and need not be proven separately from the existence of the defamatory statement.

Unfounded and malicious statements made by one against another in the course of an election campaign, or by
reason of differences in political views are not per se constitutionally protected speech. Our laws on
defamation provide for sanctions against unjustified and malicious injury to a person’s reputation and honor.
Although wider latitude is given to defamatory utterances against public officials in connection with or relevant
to their performance of official duties, or against public figures in relation to matters of public interest involving
them, such defamatory utterances do not automatically fall within the ambit of constitutionally protected
speech. If the utterances are false, malicious or unrelated to a public officer’s performance of his duties, the
same may give rise to criminal and civil liability.

 Privileged communication is a defense in libel because the nature of the information is privileged so it
is protected; NOT intended to malign/mislead; general intention was to reform
 Prescription: how interrupted? Filing with the fiscal
 Venue: place of publication/residence
 In this case, it was held that it was NOT privileged communication.
 Therefore, refer to this case in relation to libel, NOT evidence.

(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. (21a)

 Communications made to a public officer in confidence whose disclosure shall make the public interest
suffer

Requisites for the State Secrets rule:

1) Witness is a public officer
2) As to communications made to him in official confidence
3) The court finds that the public interest would suffer by the disclosure

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5. Public officer couldn’t be examined during and after his term on matters he received on official
confidence/capacity. The court determines if fit to be disclosed or not, not the public officer.

Requisites:
1) Public officer
2) Communications made to him in confidence
3) Court finds that the public interest would suffer by the disclosure

6. Other Privileged Communication

a. RA 1405 (Bank Secrecy Law) - Secrecy of bank deposits; CANNOT disclose details, how much you have;
EXC: court order, dereliction of a public officer, impeachment case (can be disclosed)

RA 1405: Law on Secrecy of Bank Deposits

Sec. 2. All deposits of whatever nature with banks or banking institutions in the Philippines including
investments in bonds issued by the Government of the Philippines, its political subdivisions and its
instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined,
inquired or looked into by any person, government official, bureau or office, except upon written permission
of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or
dereliction of duty of public officials, or in cases where the money deposited or invested is the subject
matter of the litigation.
GR: All deposits of whatever nature with banks or banking institutions in the Philippines including investments
in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are
hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by
any person, government official, bureau or office.

Exceptions:
1) Written permission of the depositor
2) Impeachment
3) Order of a competent court in cases of
a) bribery
b) dereliction of duty of public officials
4) Where the money deposited or invested is the subject matter of the litigation
The privilege applies only to bank deposits. As to other property being held by a bank, bank personnel may be
examined upon order of a court. (RA 8791)

b. RA 1477 – GR: Publisher, editor, duly accredited reporter CANNOT reveal source of their data or info;
EXC: Court, House/Committee of Congress finds such revelation is demanded by the security of the
State.

RA 53 as amended by RA 1477
Sec. 1. Without prejudice to his liability under the civil and criminal laws, the
publisher, editor, columnist or duly accredited reporter of any newspaper, magazine or
periodical of general circulation cannot be compelled to reveal the source of any news-report
or information appearing in said publication which was related in confidence to such

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 publisher, editor or reporter unless the court or a House or committee of Congress finds that
such revelation is demanded by the security of the State.
Requisites of newsman’s privilege:
1) Publisher, editor, columnist or duly accredited reporter
2) Of any newspaper, magazine or periodical of general circulation
3) CANNOT be compelled to reveal
4) As to the source of any news report or information appearing in said publication
5) Related in confidence
Exception: Court, a House or committee of Congress finds that such revelation is demanded by the security of
the State.

c. RA 8791 (General Banking Act of 2000)

General Banking Act of 2000, RA 8791, §55.1 (b)

Sec. 55. Prohibited Transactions. -
55.1. No director, officer, employee, or agent of any bank shall –
(b) Without order of a court of competent jurisdiction, disclose to any unauthorized
person any information relative to the funds or properties in the custody of the bank
belonging to private individuals, corporations, or any other entity: Provided, That with
respect to bank deposits, the provisions of existing laws shall prevail;
Elements of the exclusion
1) Director, officer, employee, or agent of any bank
2) Disclosure to unauthorized person
3) Information relative to the funds or properties in the custody of the bank belonging to private
individuals, corporations, or any other entity
4) WithOUT a court order
 This provision covers only property in the custody of the bank other than bank deposits. For bank deposits,
RA 1405 governs.

d. Qualified voter as to whom he voted for, unless a tool of fraud (flying voter can be compelled because
he is NOT qualified, disenfranchisement results)  to know who perpetrated the fraud

e. Trade Secrets – formulas; exception: to know who really owns it (dispute); upon a court order
 Trademark is NOT a trade secret (Property Law); need to register to be protected
 Patent applies to inventions
 Copyright – author of literature, publication, movie

Disclosure of info during census? Census is when somebody goes to your house asking how many you are
in the house, few more details. You have to be careful of those persons.

B.P. 22 case. Pretend I sued Mr. Ong because his checks bounced. Can prosecution call on/subpoena bank
officer to testify on the details of his accounts? Yes, you can because you need to establish that the checks
were drawn against insufficient funds.

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2. TESTIMONIAL PRIVILEGE

Sec. 25. Parental and filial privilege. — No person may be compelled to testify against his parents, other
direct ascendants, children or other direct descendants. (20a)

There is NO distinction between legitimate or illegitimate relations. This is to preserve family cohesion and
maintain harmony of the family as a whole. This should be invoked, otherwise, it is waived.

This is NOT a prohibition to sue, but only that you are prevented from testifying on these matters. (why/why
NOT you can testify  testimonial evidence)

This is a testimonial privilege, NOT a testimonial disqualification, found in §22-24 of Rule 130 [careful not to be
confused in the multiple use of the word “privilege”]. Here, the witness is the holder of the privilege and has
the power to invoke or waive the privilege. The relative against whom he is testifying cannot invoke nor waive
the privilege. However, this must be construed in the light of Art. 215 of the Family Code.

Art. 215. No descendant shall be compelled, in a criminal case, to testify against his parents and
grandparents, except when such testimony is indispensable in a crime against the descendant or by
one parent against the other. (315a)
Hence, a descendant may be compelled to testify in a criminal case where
i. Descendant-witness himself is the victim, or
ii. Descendant-witness’s parent commits a crime against the descendant-witness’s other parent.
Note that an ascendant may not be compelled to testify even if it is a crime by the descendant against the
ascendant-witness. The ascendant-witness may testify voluntarily though.

3. ADMISSIONS AND CONFESSIONS

Sec. 26. Admission of a party. — The act, declaration or omission of a party as to a relevant fact may be given
in evidence against him. (22)

Admissions

Admissions that are admissible against a party:

1) Admissions against interest

2) Compromises
3) Exceptions to Res Inter Alios Acta
a. Partner’s/Agent’s admissions
b. Co-conspirator’s statements
c. Admission by Privies
4) Admissions by silence
Admission vs. Confession
Admission Confession
– may be judicial or extrajudicial – may be in and out of court (judicial and

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 extrajudicial as well). In confessions, you should
comply with requirements of custodial
investigation. Examples of judicial confessions: at
arraignment, plea for lesser offense, on the stand
confessed commission of the offense (withdrawal
of previous plea of not guilty; otherwise explain
why commit the offense)

Self-serving statement is one made out of court. This is not allowed while being examined in court.

Admission vs. Declaration against Interest

Admission Declaration against interest
party sits on stand, admits material fact. Primary secondary evidence. Person who declared is
evidence unavailable or dead

The general rule is evidence as to extra-judicial acts, omissions, and declarations (AODs) of a party is
admissible.

These evidence can either be favorable or unfavorable to a party. Rule 130, §26 expressly allows evidence of
AODs prejudicial to the AODer.

However, an objection may be raised as to the admissibility of AODs favorable to the AODer on the grounds of
that these are self-serving AODs. The argument is “Rule 130 §26 only allows evidence of AODs prejudicial to
the AODer.”

However, §26 is only a rule of admissibility. It allows evidence of AODs prejudicial to the AODer, but does not
prohibit evidence on AODs favorable to AODer. There being no express prohibition, any evidence on AODs
favorable to the AODer falls under the general rule that evidence not excluded by law or the Rules is admissible
(Rule 128 § 3). Any doubt as to such evidence refers to its weight or probative value and not to its admissibility.

Self-serving statements = hearsay? Declaration against interest is an exception to the hearsay rule only applies
if the declarant is deceased or unable to testify. Self-defeating statements cannot be excluded by the hearsay
rule because it is expressly admissible by the rules.

S26 is the general concept of an admission and it covers both judicial and extra-judicial.

GR: statement of a material and relevant fact of a person cannot affect 3 rd party

R129, S4 is a judicial admission

2 Kinds of Admission:

Judicial Extra-judicial
Before whom made
1. Court (made during pre-trial, 1. Public officer charged with law
trial, deposition, pleadings, enforcement/peace officer
request for admission) (custodial investigation)
 comply with the constitution,

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* self-serving declarations are
unsworn statements made by
declarant out of court and which
are favorable to his interests
Miranda doctrine and RA 7438 (An
Act Defining Certain Rights of
Person Arrested, Detained or
under Custodial Investigation)
2. Ordinary person
 NO need to comply; ordinary
person can testify as to the fact
that he narrated (an Independent
Relevant Statement) but NOT as to
the narration’s truthfulness as this
would be hearsay
 merely to establish the fact
that the statement was made/the
tenor of such statement

Confession: crime charged; guilt/liability

Admission: material or relevant fact

Sec. 27. Offer of compromise not admissible. — In civil cases, an offer of compromise is not an admission 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 to be
compromised, an offer of compromise by the accused may be received in evidence as an implied admission
of guilt.
A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to lesser offense, is not admissible
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
admissible in evidence as proof of civil or criminal liability for the injury. (24a)

Offer of compromise (sec 27)

1) Offer of a party cannot be taken against him

2) In a criminal case, offer of compromise by the accused, can be taken as admission of guilt; except
quasi-offenses (reckless offenses) and crimes specifically stated by law cannot to be not subject to
compromise. Assistance in hospitalization, expenses is not to be taken as an admission of guilt or
liability so as not to restrain people to help victims while they are suffering.

Compromise – amicable settlement; NOT the full relief as there is a need to adjust; to avoid waste of time, set
an amount and negotiate on terms

The offer of compromise in civil cases is not admissible only as evidence of liability. If the offer of compromise
is offered as evidence on other matters (e.g. amount of liability), then the evidence is admissible.

In civil cases, an offer of compromise is inadmissible regardless of the cause of action. In criminal cases, the
general rule is an offer of compromise is admissible. However, it is inadmissible under the following cases:

1) Quasi-offenses (criminal negligence)

2) Cases allowed by law to be compromised (e.g. BIR can compromise tax cases)
3) Plea of guilty later withdrawn

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 4) Unaccepted offer to plead guilty to a lesser offense
5) Offer to pay or payment of expenses occasioned by an injury
[The offer is made only to avoid the consequences of litigation.]
Note that the inadmissible offer to pay refers only to expenses occasioned by an injury. It does not include
offers to pay other expenses. Ergo, an offer to pay for damages to property is admissible in criminal cases.

Further note that an offer to pay for expenses other than those occasioned by an injury is inadmissible in civil
cases. Though the 3rd paragraph of §27 excludes in civil cases offers to pay only for expenses occasioned by an
injury, offers to pay for other expenses fall under the general rule that an offer to compromise in civil cases is
not admissible. The exclusion in civil cases of offers to pay for expenses occasioned by an injury is merely a
superfluity. Even if the exclusion was expressly applied to only criminal cases, an offer to pay for expenses
occasioned by an injury is in the nature of an offer to compromise which is undoubtedly inadmissible in civil
cases. The bottomline is: an offer to pay for any expense in civil cases is inadmissible.

Criminal case NOT subject of compromise but you could file:

1) Affidavit of desistance
2) Motion to dismiss for failure to prosecute  dismissal with prejudice

 affidavit of desistance with fiscal (DOJ) is “pabuya” and is NOT recorded with the fiscal
 if in court, could you compromise? NO as there is an information and the offended party is only a
prosecuting witness
 offer from accused can be taken against him because the law presumes that persons would not
compromise for a wrong deed/crime  affidavit of desistance with fiscal’s consent and then the fiscal
examines its voluntariness and due execution
 what if there’s an affidavit of desistance but NO arraignment? Arraign so jeopardy would attach (with
prejudice); Rules would NOT apply at the prosecutor’s level
 Plea Bargaining ≠ Compromise

Civil case: In practice, may be compromised before judgment becomes final and executory; consider
satisfaction of judgment under R39 and relase/quitclaim if you could settle before there is a judgment

Pending action: compromise?

Better file a joint motion to dismiss (with or without prejudice); compromise is NOT disclosed to the court;
closest R17

Dismissal and internal agreement – is there a need to refile? Yes, if without prejudice

Thus, it is best to have a Compromise Agreement approved by the court because it becomes the judgment; if
this is violated, move for execution.
Exception: Criminal Negligence (Quasi-offenses) can be compromised; insurance adjuster

Offer to pay/payment of medical, hospital, or other expenses – so as NOT to prevent people from giving
assistance

Sec. 28. Admission by third party. — The rights of a party cannot be prejudiced by an act, declaration, or
omission of another, except as hereinafter provided. (25a)

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The general rule is extra-judicial acts of a person other than a party are inadmissible against such party.
The rights of a party cannot be prejudiced by the act, omission or declaration of another, except joint interest.
Admission of a party – admissible

However, the rules also provide for exceptions

Admission of a third party – inadmissible except in the following instances:

1) Partner’s admissions
2) Agent’s admissions
3) Admissions by a joint debtor, joint owner or other person jointly interested with the party.
4) Co-conspirator’s statements
5) Admission by privies
All the exceptions to res inter alios acta require that the relationship be proven by evidence independent of the
act or declaration sought to be admitted.

Sec. 29. Admission by co-partner or agent. — The act or declaration of a partner or agent of the party within
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. (26a)

Requisites for admission by co-partner or agent:

1) Act or declaration of a partner, agent, or person jointly interested with the party
2) Within the scope of authority
3) Made during the existence of the partnership, agency or joint interest
4) Partnership, agency, or joint interest is shown by evidence other than such act or declaration

partner or agent – establish partnership by fact other than the admission of the partner such as the certificate
of registration of partnership, document (agreement/contract stating such partnership [ex. Bank loan]), or
testimony (as to its dealings); partner acting within scope of authority; and during the existence of the
relationship. Take note of those requisites as they more or less apply to the rest, save for certain words.

Agency – agency must be established by facts other than the admission. How constituted? Through a GPA
(admi), specific/ownership (SPA). Show authority. Act was made during the existence of the agent-principal
relationship. Same as in joint debtor, interest, owner (they have commonality of interest in all)

Agent – unity of interest because he affirms and confirms principal’s acts; during agency’s existence and within
the scope of his authority (otherwise, ultra vires; subject to ratification subsequent to the act)

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 of declaration. (27)

This is an extra-judicial admission.

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Requisites for co-conspirator’s statements:
1) Act or declaration of a conspirator
2) Relating to the conspiracy
3) Made during its existence
4) The conspiracy is shown by evidence other than such act of declaration.
Conspiracy is NOT a state of mind; there’s an overt act; there’s unity of purpose/object and acts in furtherance
of the common object

GR: NOT punishable

Exc: causes provided by law (treason, sedition)

R119 S17 Discharge of the accused to be a state witness; 5 requisites:

1) Absolute necessity for the testimony

2) NO other direct evidence available
3) Testimony can be substantially corroborated in its material points
4) Accused does NOT appear to be the most guilty
5) Accused has NOT at any time been convicted of any offense involving moral turpitude

If you ask “Did you admit an extra-judicial confession made?” at the witness stand – NOT admissible because
what is sought is to establish conspiracy itself; conspiracy should be established by acts in its furtherance

 if in court, prohibition does NOT apply; judicial admission of conspiracy is admissible

Co-conspirators – conspiracy established by facts other than the admission; common object; testify on matters
taken during the conspiracy. Ex. Mr. Ong was with me when I robbed the bank – not allowed. Our relationship
should as co-conspirators be established by others/other circumstances. Like by persons who can testify on
certain circumstances: Mr. Ong purchased a gun from Mr. Sandoval’s gun shop – Mr. Sandoval can testify that at
a certain point Mr. Ong bought a gun. Ms. Aquitania can testify against Mr. Ong and myself that she went to
my condo unit at this particular time of the day. Maid can testify she heard exchange of info bet us. What is
that Common object? Crime committed. Let’s say we robbed Equitable Bank Paseo de Roxas. Can I testify on
the robbery that we made on Equitable Ayala Avenue two months ago? Under this provision, no because it is
not part of common object but yes, under section 34: similar acts as evidence to establish we have scheme,
knowledge, intent, pattern.

A previous act cannot be presented to convict them of a different offense, such a robbery of Equitable Paseo.
Evidence can be presented to establish we have scheme, knowledge, intent, or pattern, but not for purposes of
convicting us of a crime for which we are charged for this particular time (Equitable Ayala). Some of the
circumstances surrounding the conspiracy may include buying, disposing of the fruit of the crime, and our
meetings.

Sec. 31. Admission by privies. — Where one derives title to property from another, the act, declaration, or
omission of the latter, while holding the title, in relation to the property, is evidence against the former. (28)

Requisites for admission by privies:

1) Party derives title to property from another

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 2) Act, declaration, or omission of the transferor
3) Made while holding the title
4) In relation to the property

There is successional interest.

e.g. seller told buyer, while holding title, that usufruct exists [act, declaration or omission affects the buyer so
buyer presents seller’s admissions]

This is a situation where Mr. Ong derived title from me. Thus, my acts/declarations have significance only as to
the title as to the time I am holding the property, not after because at that moment, I was still in possession of
the property and has title over it. After I disposed of the property, my declarations can no longer affect the said
property.

Exceptions:

1) Declaration made in the presence of the transferee and he acquiesce to the statement
2) Continuing conspiracy to defraud as between the vendor and the vendee
3) Prima facie case of fraud established such that the property remains to be with the possession of the
seller or the transferor even after the sale was effected

Sec. 32. Admission by silence. — An act or declaration 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
action or comment if not true, and when proper and possible for him to do so, may be given in evidence
against him. (23a)

Requisites for admission by silence:

1) Act or declaration is made in the presence and within the hearing or observation of a party
2) Party does or says nothing
3) Act or declaration naturally calls for action or comment if not true
4) Such action or comment is proper and possible on the part of the party.
 action or comment “when proper”
 presence within hearing/observation
 prejudicial to recipient

Your character can be questioned and reputation doubted/affected.

e.g. big conference room and X used a microphone

Loose application: Erap failed to comment/act as to those statements made during the hype of the
impeachment – NOT in his presence

Admission by silence is another rule which is not properly applied. It is very important to take note that in
admission by silence that a statement was made in your presence or within your hearing and understanding
such that you understand the statement or declaration. And while hearing the statement or declaration, it
naturally calls for a comment or answer if not true. But you never gave a comment. In addition, take note that
your giving a comment or answer if not true is under the condition that a comment is proper under the
circumstances.

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Let’s say, we are in this auditorium and I made a statement as against one of your classmates. Considering of
course, as a matter of respect to the professor, even if it was a statement against that person, it might not be
proper for him to react at the very moment in the presence of the classmates. So it does not necessarily mean
that you have to comment immediately if the same is not true. The circumstances under which such statement
had been made should be that it is proper for you under the circumstances to make a comment or an answer.
And because of the silence, there is some inference as to the fact being referred to. It is that silence that leads
to some inference.

Sec. 33. Confession. — The declaration of an accused acknowledging his guilt of the offense charged, or of
any offense necessarily included therein, may be given in evidence against him. (29a)

Confession is an admission of guilt.

This rule is applicable only in criminal cases.
A confession need not be in writing in order to be admissible in evidence.
If it is in writing, it is NOT required to be under oath.

However, if it is not in writing, the prosecution may find difficulty in proving it.

2 Kinds of Confession:

Judicial Extra-judicial
Before whom made
1. Court – made during 1. Private Individual – NO need to
arraignment, trial comply; Independent Relevant
e.g. change of plea during Evidence
questioning  terminate cross
examination unless there shall be
a need for proving mitigating
circumstance
 clerk reads information; judge
renders sentence
2. Police/Public Officer – comply
with the requirements (custodial
investigation)

e.g. accused convicted of rape in court under the “sweetheart theory”

– NOT admission by silence, but there is failure to refute

4. PREVIOUS CONDUCT AS EVIDENCE

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 similar thing at another time; but it may be
received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and
the like. (48a)

GR: 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.

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Exceptions: It may be received to prove a specific

1) intent
2) knowledge
3) identity
4) plan
5) system
6) scheme
7) habit
8) custom or
9) usage, and
10) the like.
 due process (you can only be convicted of offense charged or that necessarily included therein)
 evidence admissible to establish modus operandi but this is only to show manner of committing offense
(pattern) and NOT to convict

This is available to both the accused and prosecution. [“did/did NOT do”]

e.g. factory worker’s time card to show that it was impossible for him to be at the crime scene

Similar Acts as Evidence. Just take note that the fact that you did or did not do a thing or a particular act
cannot be proven by the fact that you did or did not do another thing at some other time. Let’s say a robbery
was committed in Equitable-Paseo de Roxas. It does not necessarily mean that in the constitution of the said
robbery, you can present the robbery committed in Ayala although to establish particular intent or knowledge
because there is some sort of modus operandi. Take note that the law says that although it would not be used
to establish the existence of the thing or a fact, it would be used to establish specific intent, knowledge,
scheme or plan. Other examples. Let’s say that my caha de jero was opened and previously it was established
that Mr. Ong was trying to open my vault. Therefore it will establish some knowledge that he knows the
combination of the vault. Another example is the Rizal Day Bombing. There were items or fragment taken at
the scene of the crime. In the QC house of Mr. Ong, it was discovered that he was keeping fragments or bombs
of similar nature. It would show some intent on his part. Another example is I’m uttering or using a counterfeit
P200 bill. I am being charged with using a counterfeit bill. The fact that I have been uttering that to Fornier,
Aquitania or Sandoval at a previous time may not be enough to convict me on my uttering to Ong but those
particular acts could be established to show that there is a pattern as to how I intend to commit such _______.
Similar acts are used as some sort of a guide to establish intent, knowledge, negligence, plan or scheme.

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. (49a)

This involves personal property.

Tender – NO delay/violation
e.g. R67 tender of just compensation
Consign!

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What is an accepted offer? That there is an offer in writing to pay money or delivery of written instrument or
specific thing. If the same was rejected what is the effect? The effect is production or tender of money,
property or instrument.

5. TESTIMONIAL KNOWLEDGE

Sec. 36. Testimony generally confined to personal knowledge; hearsay excluded. — A witness can testify only
to those facts which he knows of his personal knowledge; that is, which are derived from his own
perception, except as otherwise provided in these rules. (30a)

Personal knowledge is derived from witness’ perception; perceived thru senses – he actually witnessed it
within the sphere of his perception.

If you are to put somebody on the witness stand, note 3 requirements:

1. competent (sec. 20)
2. perceiving and perceiving can make known perception to another
3. personal knowledge – experienced, saw, heard, felt the happening of event, thing or
circumstance.

Independent Relevant Statement – in an sense, an admission; personal knowledge

6. EXCEPTIONS TO THE HEARSAY RULE

Exceptions to the hearsay rule:

1) Waiver
2) Independently relevant evidence
3) Dying declaration
4) Declaration against interest
5) Act or declaration about pedigree
6) Family reputation or tradition regarding pedigree
7) Common reputation
8) Part of the res gestae
9) Verbal acts
10) Entries in the course of business
11) Entries in official records
12) Commercial lists and the like
13) Learned treatises
14) Testimony or deposition at a former proceeding

All such exceptions are NOT absolute; still subject to cross examination; only testimonies so they may NOT
be credible.

Sec. 37. Dying declaration. — The declaration of a dying person, made under the consciousness of an
impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the
cause and surrounding circumstances of such death. (31a)

Requisites for admissibility of a dying declaration:

1) Declaration of a dying person

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 2) Made under the consciousness of an impending death
3) Death is the subject of inquiry
4) As evidence of the cause and surrounding circumstances of such death [i.e. seriousness of the wound,
nature of the wound, victim’s condition (breathing, talking, cold body, numbness, movement)]

e.g. cut at the throat – bloodied; cannot speak so it is impossible! (object and physical evidence)

This is a question of fact and may be refuted thru cross examination.

This applies to both civil (e.g. R39 S47 (a) probate of a will/granting of letters of administration only prima facie
evidence of the death of the testator/intestate) and criminal cases.

Both declarant and recipient must be competent to testify. If declarant does not die, recipient may testify on
res gestae.

Recipient testifies; NOT possible if unconscious, lingering illness (i.e. 3 months to live)

Dying declaration – person who is the recipient of declaration will testify. So if A is the dying man, B was the
recipient of info, B testified. If A survives, A could testify and this would fall under res gestae. So if the dying
person eventually survives, he can testify on res gestae. Who should be competent? Both dying man and
recipient must be competent. There are some who say that only dying man must be competent. Let’s analyze.
Dying man who knew of facts and circumstances surrounding his death should have actually perceived and
knew who assaulted or killed him. So he should be able to perceive and perceiving, could make known his
perception to whom? To another. But the fact is he’s a dying man so he only related info to B but B should also
be competent to what? On the fact that he perceived the declaration of A and that he could make this
perception known in court. So both of them should be competent. Note also that the declaration should be
limited to the facts and circumstances regarding the death of the person. Let’s say that S is in the brink of
death. S unable to prepare his will so told Ong to “take care of his family, take care of distribution of his
property.” NOT dying declaration. Is this limited to criminal cases for homicide, murder or parricide? P vs
Norodin says yes but codal provision does not limit this to criminal cases. It applies to any case wherein the
declarant’s death is the subject of inquiry. Another thing to note is that before you present the dying
declaration, counsel should establish the preliminary facts and circumstances. This is practically laying the
basis for the presentation of a dying declaration. Circumstances, time, place, situation, name of attacker.

Note the following cases:

P vs Bartolo (Sept. 27, 2003) – reiterates the requirement that had the victim survived,
he would have been competent to testify in court as there is no evidence to the contrary.

P vs. Norodin – a dying declaration made in the form of answers to questions proved
by the person to whom the declaration is made is admissible in court and may be proved by
the testimony of the witness who heard the same or to whom it was made.

P vs. Boller (Apr. 3, 2002) – a dying declaration may be oral or written. In oral, the
witness who heard it may testify thereto w/o the necessity of reproducing the word of the
decedent if he is able to give the substance thereof. It is not important that he has to use the
exact words of the decedent. It is enough that the substance thereof was given.

An unsigned dying declaration may be used as a memorandum by the witness who

took it down. (in relation to R 132)

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 Does it mean that a person would have to use words to the effect that he knew he was
dying? (eg. “I know that I’m dying” or “Mamamatay na ako”) NO! Circumstances that will lead
to such conclusion that he is dying would be enough and the declaration made in connection
thereto will or can be used as a dying declaration.

Independent Relevant Statement – NOT fall under exception but still allowed if presented in court.

2 Kinds:
a. Pertaining to fact in issue
b. Pertaining to circumstances in connection to fact in issue

Example: I talked to F and told him that I robbed a bank. Can F testify as to fact that I narrated to
him my having robbed a bank? YES. But as to the truth or falsity of WON I indeed robbed a bank is
a matter that has to be established by independent evidence. But the fact of my sharing the info,
the fact of my ____ declaration to F would be an independent relevant statement.

Dying declaration by the dying man himself… let us say that he can no longer speak, but he wrote something.
Do you need to present the original? Yes, because the contents of which are the subject of the inquiry.
However, if, let us say I am the dying man and Mr. Ong was taking a memorandum of my statement, based on
what I am declaring and narrating he was making and preparing a memorandum in which case that
memorandum could be used as his memory aid if he sits on the witness stand in the nature of present
recollection revival.

Sec. 38. Declaration against interest. — The declaration made by a person deceased, or unable to testify,
against the interest of the declarant, if the fact is 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. (32a)

Requirements for hearsay testimony on declaration against interest:

1) Declaration made by a person deceased, or unable to testify
2) Against the interest of the declarant (contrary/prejudicial)
3) 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
4) As evidence against himself or his successors in interest and against third persons
cf Rule 130 Sec. 31

Sec. 31. Admission by privies. – Where one derives title to property from another, the act,
declaration, or omission of the latter, while holding the title, in relation to the property, is
evidence against the former. (211)
Admission by privies Declaration against interest
One of 3 exceptions to res inter Exception to hearsay
alios acta
Evidence against the successor Evidence against even the
in interest of the admitter declarant, his successor in

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Admitter need not be dead or
unable to testify
Relates to title to property
Admission need not be against
the admitter’s interest
interest, or 3rd persons
Declarant is dead or unable to
testify
Relates to any interest
Declaration must be against the
interest of the declarant

Declaration against Interest. Who would testify? Another person. NOT the person who made such declaration
against interest. It is just that the person who made such declaration against interest is either dead or unable
to testify. So it is the RECIPIENT who would testify as to such declaration.

This is against human nature; could be considered by the court.

This is secondary evidence, unlike an admission which is primary – because declarant is dead or unable to
testify; there’s a certain degree of reliability
The primary evidence is the witness who testifies.
But if declarant is still alive, his declaration may be used to impeach him under R132 S13. (inconsistent with his
interest)

Admissions may be express or implied (judicial under R8 S11 wherein allegations NOT specifically denied are
deemed admitted; or extra-judicial under S32 – admission by silence)

Admission vs. Declaration against Interest. An admission is not necessarily a declaration against interest but a
declaration against interest is always against one’s interest. In admission, the person who testifies is the person
making such an admission; therefore, it is a primary evidence. In a declaration against interest, the person who
made the declaration is deceased or unable to testify; therefore, another person or a recipient will have to
testify. Admissions used only against admitter and those who have legal interest arising therefrom. In
declaration against interest, it could be used even as against 3 rd persons.

Self-serving declaration vs. Declaration against Interest. Self-serving declaration is made out-of-court and is
generally not admissible. To make it admissible is to promote perjury and fraud. While in declaration against
interest the person is dead or unable to testify and it is admissible in its entirety; including the points not
against interest. Anything that was stated that is in connection with the declaration against interest is likewise
admissible.

Note 3 things on declaration against interest:

 Declarant is dead or unable to testify
 Declaration must on a fact cognizable by the declarant
 No motive to falsify.

If it is established later on that there is a motive to falsify, the declaration against interest cannot be
admitted.

These exceptions to the hearsay rule are not absolute and they could be contested and objected to.

The person being presented to narrate a declaration of a dying man or to narrate the declaration of person who
admitted an interest against himself could be subjected to cross-examination.

Such cross-examination may touch on these matters:

What was your condition at the time you met the person?

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Was he able to speak or could he hardly speak?
How did he know that he was dying?
Was he surely dying at that point in time?

Sec. 39. 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. (33a)

Requisites for admissibility of hearsay evidence as to pedigree:

1) Act or declaration of a person deceased, or unable to testify
2) In respect to the pedigree of another person
3) Related to him by birth or marriage
4) Where it occurred before the controversy
5) Relationship between the 2 persons is shown by evidence other than such act or declaration.
"Pedigree" includes:

a) relationship
b) family genealogy
c) birth
d) marriage
e) death
f) dates when and the places where these facts occurred
g) names of the relatives
h) facts of family history intimately connected with pedigree.

Act or declaration about pedigree; declarant is related by birth/marriage to the person whose pedigree is in
question

- family genealogy (family history, family tree); NOT limited to oral, includes written
- NO need to establish relationship; witness is merely a recipient

e.g. Declarant relays information to Witness relating to a Person whose pedigree is in question

– involves 3 persons; D as pedigree’s source is in a sense, making an admission

Pedigree is the history of family descent which is transmitted from a generation to another generation by oral
or written declaration and by tradition.

It includes: relationship, family, genealogy, birth, marriage, death and dates and places where these facts
occurred.

Witness should be competent on his own to testify on the relationship.

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The declarant’s relationship to his family must be legitimate, and NOT is relationship to X (person whose
pedigree is in question).

It is declarant’s claimed family which should be genuine because otherwise, the relationship would be
questionable/spurious.

But what is to be established need NOT be genuine (declarant’s relationship with X).

This should be before controversy, otherwise, it may not be reliable as there may be reason to falsify.
- relationship cannot be established by other evidence (birth certificate, public instrument, private
document)  only if no other superior evidence available

Note:
 Person is dead or unable to testify
 Pedigree of another person, not the declarant, is in question
 Recipient testifies
 Witness need not be a relative
 Declarant should be related, by birth or marriage, to the person whose pedigree is in issue and the
relationship does not need to be legitimate because the law makes no distinction
 Declarant’s relationship to the family to which he claims to be related to should be legitimate in
character

Sec. 40. 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. (34a)

Requisites for admissibility of hearsay evidence as to family reputation or tradition regarding pedigree:
1) Reputation or tradition existing in a family
2) Previous to the controversy
3) In respect to the pedigree of any one of its members
4) Witness testifying thereon be also a member of the family, either by consanguinity or affinity
Reputation is others’ perception of who you are, which may be inaccurate.

It is reliable in family reputation; passed on from generation to generation.

- oral transmission of information; NO need to identify the source; family history is created
- why not include non-family members? Filipinos are clannish; there is a certain level of indifference

Witness who is a family member testifies so it is reliable. (i.e. tradition: reunions, confirmation); prior to the
controversy (NO reason/motive to falsify); spontaneous declaration (i.e. reputation: blacksheep, playboy,
breadwinner)
- NO declarant; witness received (passed on from one generation to another)

Family pictures
Family Bibles – common in Royalties who have family historians; far back to see the line and becomes relevant
in cases of succession to the throne; not so much in the Philippines; only family members are placed in the
bible but now, this is no longer true; now unreliable

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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.

In family tradition, the declarant must be dead or unable to testify. In family reputation or tradition, there is not
even a declarant to speak of, just a witness who was aware of an exiting family reputation or tradition.

Family reputation or tradition regarding pedigree. Do we have here a recipient of a declaration or an act? NO.
What is reputation? It is how other people perceive us to be. It is how the community perceives us to be.
Reputation, as defined, is declaration and statements passed down from generation to generation coming from
deceased relatives though it cannot be identified as to who they tell; and this could be regarded as family
history. What is the reason for this? Necessity and trustworthiness.

Reputation is only as against one’s ancestors who only we know because of declarations and statements that
has been passed on from generation to generation. Examples: “yung lolo ko gobernador heneral ‘yan dito”,
“’yung lolo ko provincial auditor ‘yon.” That is family reputation or tradition regarding pedigree.

Note:
 There should be a controversy with respect to the pedigree of a member of the family so what is in
issue here is the pedigree of a member of the family.
 A member of the same family testifies because only members of the same family would know the acts
or declarations of their ancestors although they cannot really pinpoint as to who among their ancestors
made such acts or declaration.
 Reputation or tradition of the person concerned existed before the controversy so there’s no room to
fabricate, no bias and interest (i.e. If I’m mad at O, there’s already bias and interest. Chances are I might
not be telling the truth; there’s room to fabricate.)

Sec. 41. 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. (35)

Requisites for admissibility of hearsay evidence as to Common reputation:

1) Common reputation
2) Existing previous to the controversy
3) Respecting either
a. facts of public or general interest more than 30 years old, or
b. marriage or
c. moral character
Monuments and inscriptions in public places may be received as evidence of common reputation.

1945 Philippine history as to independence is subject to judicial notice and NOT common reputation
e.g.
 Student activities went to the mountains because they were disgruntled, but 1 st Quarter Storm is
history!
 Farmers joined Hukbalahap
 Fact: Josons of Nueva Ecija (lolo was a guerilla)

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  Culture of the Tausugs (cooking, weapons, weaving, dress)

Legal marriage NOT required; only a perception

- NO requirement of 30 years; only for purposes of testimony
- NOT conclusive; NOT including 5 years under the Family Code as to the absence of legal impediment to
marry  NO need to have a marriage license
- NO declarant

Moral character – social norms; NOT accurate

Character – person himself; reliable because it is difficult to obtain evidence; NO document; trustworthy
because the public is presumed to be conversant
o Spontaneous information
o From class of persons within that circle

Note:
 Facts must be of public or general interest for more than 30 years
 Common reputation must be ancient
 Reputation has been formed among persons who have some sort of information and could intelligently
make an opinion of such information
 Common reputation exists previous to the controversy – the law understands that there’s room to
fabricate so common reputation should have existed prior to the controversy.

Common Reputation. What are those which will fall under common reputation? Public or general interest for
more than 30 years. Documents existing for more than 30 years which have been unblemished by alterations
and beyond suspicion and is in possession of the person who should be in custody of the same are called
ancient documents. Facts, common knowledge of more than 30 years fall under common reputation. It will
also include marriage and related facts and individual moral character.

The reason for this is that it is very difficult to obtain evidence. What is the trustworthiness of this evidence?
Most of the time, the public is conversant of what the true facts are. Note that if it’s fact of public or common
knowledge, the law requires more than 30 years so that it will have a certain level of reliability. Otherwise, it’s
famous as “rumor,” “chismis,” “haka-haka.” But because it has been existing for more than 30 years, it has
reached a certain level of reliability.

In these cases, persons who made declaration is identifiable:

1) Dying declaration with declarant

2) Declaration against interest with declarant
3) Pedigree with declarant
4) Family Reputation with NO declarant
5) Common Reputation with NO declarant
6) Res gestae with declarant

Sec. 42. Part of res gestae. — Statements made by a person while a starting 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. (36a)

Requisites for admissibility of hearsay evidence as to res gestae

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 1) Statements made by a person either
a. While a startling occurrence is taking place or
b. Immediately prior or
c. Immediately subsequent thereto
2) With respect to the circumstances thereof

Requisites for admissibility of hearsay evidence as to verbal acts:

1) Statements accompanying an equivocal act

2) Material to the issue
3) Giving it a legal significance

2 Kinds of Res Gestae:

a. Statements made from a startling occurrence while it is taking place, immediately prior or
subsequent thereto – reason: spontaneous, no room to falsify/fabricate. If there’s already a gap, a
space for you to think, consider or elaborate certain facts, then there’s room to fabricate. Example: I
throw this is the middle of the room. S shouted _______. That’s an immediate and spontaneous
reaction. Who will testify? Is it O who saw me throw this in the middle of the room? If O testifies, he’ll
testify on his personal knowledge NOT res gestae. Because what is to be testified on here is the
statement which was initiated or generated by that startling occurrence. Who will testify then? If I
threw this away, S reacted. Let’s say A was not looking at me and she heard ________, will she testify
on the immediate reaction of S? YES. That’s res gestae. It is not that S and O saw me threw the chair.
It is the statement which was the reaction to that startling occurrence.

b. Verbal acts – What is the evidence here? It is the statements accompanying an equivocal act. If you
see me with this hand, I could give as many meanings and interpretation. That’s why it’s equivocal; it’s
not clear. If it’s unequivocal, it does not fall under this. What amplified the equivocal act? The
statement amplifies or gives significance to the equivocal act. W/o the statement, this equivocal act is
useless. It is the statement that gives significance to the equivocal act that has to be submitted in
court. Let’s say you see me building a fence around my house. This will give you a number of
meanings: that I am a tenant or owner or legitimate successor. That is an equivocal act of me building
a fence. But if it’s accompanied by a statement: “I’m building this fence because I purchased this from
F.” Is that clear? YES. The equivocal act is coupled with a statement.

If O heard you say that you’re building a fence, isn’t that a matter of personal knowledge of O? It is but
it falls under res gestae. It’s also possible that A saw me build the fence and O heard me say the reason why I
built the fence. O heard a statement which amplifies my act but as to A, it’s only an act. These matters are
concerns when you’re handling actual trial. For now, what’s important is that it is the statement which gives
legal significance to the equivocal act.

The 1st kind of res gestae refers to spontaneity while the 2 nd kind refers to contemporaneous statements with
the act.

Res gestae is NOT sufficient to convict; only in support; reliable because NO time to concoct and NO
opportunity to fabricate

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 1) Person who heard the statement which is the result of startling occurrence testifies  testified on by
another individual; statement need not be so close to the event; NO hard and fast rule in terms of
time; a question of fact (how he narrated: before, during or after)

2) Spontaneous statements contemporaneous with an equivocal act  statement is material to the issue,
a relevant matter; it is the act which gives it legal significance

e.g. symbolic act of thumbs down made by A and B heard A’s statement while C saw such act but did
not hear the statement
 B can testify on personal knowledge as to what he heard; C can testify on res gestae as to
the equivocal act
 B’s testimony amplifies
 act is testified on by another individual

Res Gestae: Types

1) Startling occurrence
 Triggers the statements made as a reaction
o While taking place
o Immediately prior
o Subsequent (lapse of time depends on the circumstances)
 You do NOT testify on the occurrence but on statements heard
 X – startling occurrence; Y – witness (personal knowledge); Z – X relayed it to him when X arrived
home (res gestae)
 Independent Relevant Evidence need arise from a startling occurrence
 Witness testifies on the statement which is NOT confined to those made by X, the person who
experienced the startling occurrence
 Subject to judge’s discretion if cumulative evidence
 Spontaneous

2) Equivocal act
 Given legal significance by statements which are testified on
 e.g. clenched fist
 Person who sees act and does not hear testifies (personal knowledge)
 If he did not see, but heard (res gestae)
 If sees and hears (personal knowledge)

Scenarios:
a) X and Y only – Y heard
b) X killed, Y saw killing, Z “naku patay!”
 Y has personal knowledge; if Y did not see, res gestae

Sec. 43. 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. (37a)

Requisites for admissibility of hearsay evidence as to Entries in the course of business:

1) Entries made at, or near the time of the transactions to which they refer

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 2) By a person deceased, or unable to testify
3) Who was in a position to know the facts therein stated
4) 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
Note that in business records, the person making the entry must be deceased or unable to testify. In official
records, the person making the entry need not be deceased or unable to testify (Rule 130, Sec. 44). Both
official and business records are only prima facie evidence.

If the person making the entry is still alive, use the record to refresh his memory. (Rule 132, Sec. 16)

We first heard of this in best evidence. Because these are made at or near the time of transaction, the entries,
the data, the presumption is there’s no room to fabricate because these were made at the regular course of
business. But could it be refuted? Could it be established that it is not accurate? YES. That’s why those who
falsify entries appearing in these documents would normally falsify/tamper/alter as they follow the regular
course of business because there’s such presumption.

The entrant must have been in the position to know the facts. Is the person who made such entries available
to testify? NO. The entrant must either be dead or unable to testify. Who will testify then? Another person
who has knowledge of how the entries were made NOT the person who made entries.

Entries:
 In issue; made “at/near the time of the transaction” so reliable; R130 S4 (original: documentary)  NO
question as to who made the entry; the document cannot speak for itself; must be relevant, not
excluded and authenticated
 Prima facie evidence: made the entries in his professional capacity or in the performance of duty and in
the ordinary or regular course of business
 Hearsay because the person in a position to know is deceased or unable to testify
 Reason: necessity and trustworthiness
 Who testifies? Competent witness who may be the supervisor or his subordinate
 Still needs authentication R130 S19 (classes of documents)

Sec. 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. (38)

Requisites for admissibility of hearsay evidence as to Entries in official records:

1) Made in the performance of his duty
2) By either
a. a public officer of the Philippines, or
b. by a person in the performance of a duty specially enjoined by law
 Certified true copy suffices
 Another person who did not prepare the document testifies
 But public officer may be ordered to testify upon order of court

Note that in official records, the person making the entry need not be deceased or unable to testify, but he
must be a public officer or a person in the performance of a duty specially enjoined by law. In business records,

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the person making the entry must be deceased or unable to testify. Both official and business records are only
prima facie evidence.

The entries must be made in professional capacity or in the performance of a duty. If those are financial
entries, I must be an accountant or I may not be an accountant but because of a duty mandated upon my by
my employer, I have to make an entry in the regular course of business, then it will fall under this exception.

There are two types here:

1) Entries made by public officer in the performance of his duty

2) Entries made by a public officer in the performance of his duty as enjoined by law

Note:
 Made by a public officer or a person enjoined by law
 In the performance of his duty or a duty enjoined by law
 Public officer or the person enjoined by law has sufficient knowledge of the facts acquired by him
personally or through his official information

When did we first hear this? Also in best evidence wherein you could submit a certified true copy of private
documents in the custody of a public officer or a public office

Sec. 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)

Requisites for admissibility of hearsay evidence as to Commercial lists

1) Statements of matters of interest
2) To persons engaged in an occupation
3) Contained in a list, register, periodical, or other published compilation
4) As tending to prove the truth of any relevant matter so stated
5) Compilation is
a. Published for use by persons engaged in that occupation and
b. Generally used and relied upon by them therein
e.g. NEDA reports, part of the newspaper which reports the prices of shares

In commercial lists, there are persons who are engaged in an occupation and that there is a list, register or
other published compilation.

What does the published compilation tend to establish? Truth as to a relevant matter stated in the publication.

What we want to prove is the fact or the matter stated in that publication or the list and for that compilation or
publication to be reliable, there are two important requirements: usage and reliance.

If it is used but not generally relied upon by the persons engaged in that occupation then it is useless.

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It must be a compilation which has attained certain level of reliability.

e.g.

list of lawyers or the lex mundi

listing of firms or organization

Thus, the use and reliance of the compilation is important and that which makes it an exception on the hearsay
rule.

Why? Its really hearsay, you don’t know who prepared it and how they collated the matter of information. It is
only because it is used by persons engaged in that occupation and relied upon that is why it falls under the
exception.

 Witness did not prepare

 Used and relied upon by persons in such occupation
 Member of the occupation testifies

DECLARATIONS:
 Dying declaration
 Declaration against interest
 Pedigree
 Res gestae

REPUTATIONS:
 Family Reputation
 Common Reputation

ENTRIES:
 Regular course of business
 Entries of pubic officer

Sec. 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)

Requisites for admissibility of hearsay evidence as to Learned treatises (used to prove unwritten foreign law)
1) Published treatise, periodical or pamphlet
2) On a subject of history, law, science or art
3) Either
a. court takes judicial notice, or
b. witness expert in the subject testifies
4) Writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling
as expert in the subject

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What are treaties? These are dissertations, papers or scholarly articles… prepared by persons in the field of
history, law, science and the arts [limited fields].

Again, this is hearsay! Why? There is a person who prepared the material… the person will appear in court…
(no, he will never appear in court) …so what will be presented to prove a matter appearing on the treaties
would be….. what are the modes by which you establish the fact appearing on the treaties:

1. By judicial notice – you don’t really need to do anything… if it is mandatory of course, the judge will
take mandatory judicial notice. If it is discretionary, it would depend upon his discretion. But if its other
matters, which you want the court to take judicial notice of, you have to call the court’s attention after
notice and hearing of such matter.

2. There should be an expert in the same subject. Will he testify on the contents of the treaty? No. he will
testify as to the expertise of the person who prepared the material. All he needs to establish is that the
person is an expert. Once it is established, the matter stated in the treaties will be admissible. Is it by
ordinary witness? No. by an expert. If you cannot make it by judicial notice, make it by an expert.

This provision is useful to prove an unwritten law. E.g. learned treatises on unwritten law which the court has
taken judicial notice: Manresa, Sanchez-Roman. e.g. of writers of treatises acknowledged as experts: Corpus
juris, Corpus juris secundum, LRA

 Courts can take judicial notice of treatise of lawyers because these are secondary sources
 Authors would not testify and general recognition of authors as experts makes it reliable
 How presented? Can be sourced out (judicial notice) or an expert in the field of the author testifies

If it is a written law that is sought to be proven, cf Rule 132, Sec. 19

Sec. 19. Classes of documents. – For the purpose of their presentation in evidence, documents
are either public or private.
Public documents are:
(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;
xxx
E.g. of written official acts: Judicial decisions, executive orders. Our courts take judicial notice of local laws.
However, there are certain instances when an official copy of the written official act is required to be
presented. cf Rule 132, Sec. 24

Sec. 24. Proof of official record. – The record of public documents referred to in paragraph (a) of
Section 19, when admissible for any purpose, may be evidenced by an official publication
thereof or by a copy attested by the officer having the legal custody of the record, or by his
deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such
officer has the custody. If the office in which the record is kept is in a foreign country, the
certificate may be made by a secretary of the embassy or legation, consul general, consul, vice
consul, or consular agent or by any officer in the foreign service of the Philippines stationed in
the foreign country in which the record is kept, and authenticated by the seal of his office. (25 a)

Ways to prove written foreign official acts

1) official publication, or

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 2) copy
a. attested by the officer having the legal custody of the record, or by his deputy, and
b. if the record is not kept in the Philippines
i. accompanied with a certificate that such officer has the custody made by
 a secretary of the embassy or legation
 consul general, consul, vice consul, or consular agent or
 by any Philippine officer in the foreign service stationed in the foreign country
in which the record is kept
ii. and, authenticated by the seal of his office

Sec. 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)

Requisites for admissibility of hearsay evidence as to prior testimony:

1) Testimony or deposition
2) Of a witness deceased or unable to testify
3) Given in a former case or proceeding
4) Involving the same parties and subject matter
5) As evidence against the adverse party
6) Adverse party had the opportunity to cross-examine him

cf with the rules on admissions (R130, S26-33) and interrogatories (R24)

There are two cases. The cases involve the same fact and subject matter. But what is the most important thing
that you have to take note so that the testimony or deposition taken in another proceeding can now be used in
a simple proceeding? The testimony or deposition was subjected to cross-examination. What if only a portion
was subjected to a cross-examination? Only the portion that was subjected to a cross-examination. If there was
no cross examination, then it could not be used or be admissible as against the adverse party. Example, a case
of ejectment and a case of ownership. If there was a testimony on the case for ownership and it was subjected
to cross examination, then it can be presented. But note that ejectment cases fall on summary procedure.
Unless the court calls for a clarificatory hearing, then there is no need to present another witness.

 Relate with R23 S5

 Stricter under this rule because there is a need for an opportunity to cross-examine; such right may be
waived
 R115 s1 (f) rights of the accused; same with S47 (subject to cross examination)

7. OPINION RULE

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

Sec. 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. (43a)

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An expert witness is a person who has special skill, knowledge, training, experience. So an expert could give an
opinion on matters that he has special knowledge. Is it required that he is a college degree holder? Is it
required that he’s schooled? What is important is that you could establish that he has special skill, knowledge,
experience and training that could qualify him as an expert.

What are matters that an expert could testify on?

 those that he will give an opinion on matters that he has personal knowledge of. Ex. medico legal
officer who conducted an autopsy. He can give an opinion on the fatality of the wound.

 although he doesn’t have personal knowledge of the facts, the facts are hypothetically presented
to me but those facts have a relation on the facts in issue, meaning that the hypothetical facts are
not foreign and irrelevant. And based on the facts presented, the expert can give an opinion. Ex.
there is a victim and the person who conducted the autopsy is already dead. Could the autopsy
report be examined by another expert in order to give an opinion on whether the facts as
presented to him can produce a reasonable opinion based on the facts

GR: Experts can give opinion (with knowledge, skill, experience, training)
Exc: witnesses can testify on identity, handwriting, mental sanity and impressions

 It is best to have bio-data marked.

 Qualification of an expert may be dispensed with through stipulation of the parties and then proceed
with questioning.
 Experts testify in either of 2 ways:
a) Within his personal knowledge
 Identify his own report or findings

b) NOT within his personal knowledge

 Facts are presented to him and he is to make an opinion or assessment (hypothetically)

Sec. 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)

GR: The opinion of a witness is not admissible.

Exceptions: Admissible opinion evidence:

1) Matter requiring special knowledge, skill, experience or training which he is shown to possess, may be
received in evidence.
2) Identity of a person about whom he has adequate knowledge;
3) Handwriting with which he has sufficient familiarity
4) Mental sanity of a person with whom he is sufficiently acquainted.
5) Impressions of the
a) Emotion

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 b) Behavior
c) Condition or
d) Appearance of a person

Ordinary witnesses on matters on identity where he has adequate knowledge can testify on the following:

1) Identity- Does it mean that I should have a relationship with the person? No. Does it mean that I see
him everyday? No. identity needed is one that is enough for me to identify.

2) Sufficient familiarity as to handwriting. Ex. I saw the person write and the document is the subject of
the inquiry so I could give an opinion. I am in charge with the documents because the person who
wrote the handwriting is my boss. In these cases, where you want to elicit testimony from ordinary
witnesses, you must lay the bases first so the witness can identify the handwriting. Lay the basis of the
execution of the document. (i.e. Where were you during that time? We were in Rockwell. Who were
you with? Mr. Ong. What did Mr. Ong do? He signed the document. Is this the document that was
signed? Yes. Is this the signature of Mr. Ong? Yes.)

3) Sufficiently acquainted with the sanity of the person. It does not need a relationship with the person
but you need a certain degree of exposure to the person to make such a conclusion as to his mental
sanity. Do you need to qualify an expert witness? Yes. Is it enough that I say, o, Mr. Saguisag, he is my
next witness. He is an expert in handwriting. Will the court allow him to sit to testify? No because he
has not yet been qualified. How do you qualify an expert witness? Either the court asks him some
questions or the counsel who is presenting him as witness will ask him some questions as to his
background. (i.e. a doctor – his degree, special training, etc.) Could you do away with the qualification?
No but you can stipulate on the qualifications. This is a matter of strategy on whether to stipulate or
not. If the expert witness is so good, it is better to stipulate.

4) Ordinary witness can testify on behaviors, conditions, emotions, appearance Ex. is she beautiful? This is
useful in criminal cases in order to identify the accused in order for the judge to visualize or to paint a
picture for the judge because he has no personal knowledge of the incident.

 “adequate knowledge”  identity

 enough to identify, includes notice
 First, show adequate knowledge.
 Second, ask how did know? Was it the first time you saw him? Is your recollection
accurate?

 “sufficient familiarity”  handwriting

 familiarity is a question of fact
 NO relationship required
 Same repetition
 The signatures of GMA and Marcos on our currency are NOT covered
 Statement of familiarity; Why familiar?
If you saw him sign, this is NOT opinion as this is based on personal knowledge

 “sufficiently acquainted”  mental sanity

 demeanor, behavior, gesture, moves from which the court makes inference (opinion)
 NO need for repetition
 A question of fact
 Sufficient enough to make an opinion

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  How do you know?
o Emotion
o Behavior
o Condition
o Appearance
 important in criminal cases, damage suits; common reaction so you could give an opinion

8. CHARACTER EVIDENCE

Sec. 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, (46a, 47a)

cf Rule 132, Sec. 14

Sec. 14. Evidence of good character of witness. – Evidence of the good character of a witness is
not admissible until such character has been impeached. (17)

GR: Character evidence not generally admissible

Exceptions:

1) In Criminal Cases –
a) Accused may prove his good moral character which is pertinent to the moral trait involved in the
offense charged.
b) In rebuttal, the prosecution may prove the bad moral character of the accused which is pertinent
to the moral trait involved in the offense charged.
c) 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.

2) In Civil Cases – only when pertinent to the issue of character involved in the case

3) Good character of an impeached witness

When you are confronted with a question of character evidence, break it to civil and criminal. If it is criminal,
could the accused present his good moral character? If there is a moral trait on the offense charged. If there is
no moral trait in the offense charged, you cannot present as to his good character. Because the fact that he is a
good person doesn’t mean that he cannot commit a crime. Ex of a moral trait: rape - chastity, estafa, homicide,
physical injury – attitude for peacefulness and violence. Consider the moral trait of the offense charged if you
want to present the good moral character of the accused.

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Can the prosecution present the bad character of the accused? Yes but only on rebuttal after the defense has
rested its case. This is not a matter of right and is subject to the court’s discretion. In the same manner of
recalling of witnesses, there is a need to justify. How about the victim’s good or bad character? Yes.if it would
establish the probability and improbability of the commission of the crime.

If you are confronted with character evidence, there are 3 persons to take note of: accused, prosecution,
victim. Then you have civil. By any party if character is an issue in the case. How about the character of the
witness? That applies to both criminal and civil cases. You have to make a cross-reference with section 14 of
Rule 132 where it states that the witness cannot present his good character unless his character be impeached.
When character evidence is irrelevant, do not present it if it will not present or resolve any fact in issue or any
circumstance arising from those facts in issue.

 Robbery, Theft, Estafa: honesty (virtue)

 Murder: violence/peacefulness (virtues)
 Libel: dishonesty
 Rape: lust, promiscuity, sexual conduct, perversion
 Moral character of the accused is considered if there is a moral trait involved in the offense;
used by the defense; prosecution only uses bad character during rebuttal since good character
is a new matter
 Fact of being a prostitute does not indicate she cannot be raped – a settled doctrine
 e.g. under offended party: modus operandi  honesty in claims; R128 S4: probability or
improbability of a fact in issue
 Civil case: there should be an issue of “character”  “any party” (so make an issue)
 Character evidence is evidence, NOT an objection
 Criminal case: GR: accused ; Exc: prosecution during rebuttal to meet the new matter
 “any party” – a character issue; make it an issue by placing it in the pleading
 good character of the witnesses is inadmissible unless impeached

RULE 131

Burden of Proof and Presumptions

SECTION 1. Burden of proof. — Burden of proof is the duty of a party to present evidence on the facts in
issue necessary to establish his claim or defense by the amount of evidence required by law. (1a, 2a)

Under Rule 131, you have presumptions as distinguished from inferences. You have inferences from
conclusions arising from facts. You have a set of facts and you establish an inference.
In presumption, there is also an inference from established facts. The only difference is that there is only a
presumption when it is laid down by law. So only those presumptions that are laid down by law are legitimate
presumptions.
Presume – make an inference from established facts
Assume – you lay the premise first and from those assumptions, you make a conclusion
Burden of proof – the duty of a party to present evidence on the facts in issue necessary to establish his claim
or defense by the amount of evidence required by law; the burden of persuasion

Test for determining burden of proof:

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The result of the inquiry as to which party would be successful if no evidence at all were given, the burden on
the adverse party

Matters which need not be proved by a party to an action:

1) Allegations contained in the complaint or answer immaterial to the issues

2) Facts which are admitted or which are not denied in the answer, provided they have been sufficiently
alleged
3) Those which are the subject of an agreed statement of facts between the parties as well as those
admitted by the party in the course of the proceedings in the same case
4) Facts which are the subject of judicial notice
5) Facts which are legally presumed
6) Facts peculiarly within the knowledge of the opposite party

Burden of proof: never shifts; stays until the end of the case
1) Plaintiff
2) Defendant

If the evidence in a case is evenly balanced, it must be decided against the party who has the burden of proof,
for the case is then found in exactly the same position at the conclusion as it was at the beginning.

Burden of evidence: production burden to meet the evidence; shifts; duty of producing evidence; burden of
coming forward with the evidence; happens in rebuttal

e.g.

Nature of case in a Burden of Proof

contract of loan
Parties Plaintiff Defendant
CIVIL Cause of action Payment
(allegations in the
complaint)
Application: Cause of action: Defense:
Debt obligation Payment
Evidence presented: (1) P/N, demand (1) Payment was
letter made to the person
(2) Testimony of the who follows up and
person who follows supported by a
up payment receipt
(3) Interest is
stipulated
(4) That receipt of
payment was falsified
or fabricated
 Since receipt
is a new
matter,
plaintiff
should be
able to meet

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 this by
presenting
evidence that
such is
falsified
Parties: Accused Prosecution
CRIMINAL Cause of accusation Defenses to free him
found in the from liability
information
(elements of the - If defense is there is
crime) no note, present
testimonies, or proof
R 120 that the p/n was
Alleged: estafa returned and there
Proved: other deceits was no loan.

Another defense
would be payment.

Homicide Prosecution Accused

Witnesses presented (1) Eyewitness (1) Accused himself
(2) Fact of death (that he is not the
(doctor) assailant and that he
(3) Police report was out of the
(police) country)  alibi
(4) Eyewitness (2) Immigration
papers
The aggravating (3) Certification from
circumstances are abroad
burdened on the
prosecution who shall The defense may
present testimonies, present an alibi and
body of the crime, tickets and
weapon, bloodied certifications may be
shirt. shown.
* Rebut:
(1) Present (1) That certification
certification that of his presence here
accused was here and was falsified
not abroad (2) That my
(2) Pictures certification from
abroad is true

The burden of proof in a criminal case requires the prosecution in the first instance to make out a prima facie
case proving the essential facts embraced in the criminal actions alleged, including the intent.

If this is done and the accused offers no evidence, the case as made out by the state must go to the court. In
thus complying with the requirement that it shall sustain the burden of proof, the state must produce such
evidence as will overcome the presumption of innocence and convince the court of the guilt of the accused
beyond a reasonable doubt.

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After the state has introduced all the proof which it regards as sufficient to convict the accused, the accused
may meet the case thus made out against him in three (3) different ways:

1) He may deny the truth of all the evidence which may be offered against him.
2) He may deny the truth of some particular ingredient in the criminal transaction as shown by the state.
(i.e. he may plead an alibi, admit the doing of the act charge and deny the presence of intent, or make
an affirmative defense such as insanity or license)
3) He may put in a defense not traversing the allegations of the indictment, but involving some matters or
facts which are entirely separate from and independent of the original transaction set forth therein.

Facts: in the pleading

Evidence: during trial

Sec. 2. Conclusive presumptions. — The following are instances of conclusive presumptions:

(a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led to
another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out
of such declaration, act or omission, be permitted to falsify it:
(b) The tenant is not permitted to deny the title of his landlord at the time of commencement of the
relation of landlord and tenant between them. (3a)

Presumption – an inference of the existence or non-existence of some fact which courts are required or
permitted to draw from the proof of other facts, an inference which common sense, enlightened by human
knowledge and experience, draws from the connection, relations, and coincidence of facts and circumstances,
with each other
- an assumption of fact resulting from a rule of law which requires such fact to be assumed from another
fact or group of facts found or otherwise established in the action

Presumptions juris or of law are classified into conclusive presumptions, or presumptions juris et de jure and
rebuttable presumptions, or presumptions juris tantum.

Conclusive presumption – inference which the law makes so peremptory that it will not allow them to be
overturned by any contrary proof however strong
- absolute presumption of law
- rules determining the quantity of evidence requisite for the support of any particular averment, which
is not permitted to be overcome by any proof that the fact is otherwise
- a rule of substantive law

Disputable presumption – a species of evidence that may be accepted and acted on when there is no other
evidence to uphold the contention for which it stands
- rebuttable presumption
- may be overcome by other evidence
- a rule of evidence; a species of evidence

Presumption
A presumed fact is one taken for
granted and accepted as a result
of human experience and general
knowledge.
Inference
An inference is the conclusion
drawn from the proof or
admission of circumstances,
which, by reason of the same
human experience and

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It is a rule which the law makes
upon a given state of facts.
It is a deduction directed to be
drawn by law.
knowledge, would naturally lead
to it.
It is a conclusion which, by means
of data found upon common
experience, natural reason draws
from which facts are proved.
It is a permissive deduction.

Presumption of fact – mental process by which the existence of one fact is inferred from proof of some other
fact or facts with which experience shows it is usually associated by succession or coexistence

Presumption of law – an inference which, in the absence of direct evidence on the subject, the law requires to
be drawn from the existence of certain established facts
- an assumption made by law that a strong inference of fact is prima facie correct, and will therefore
sustain the burden of evidence, until conflicting facts on the point are shown

Estoppel:
1) Equitable estoppel
2) By deed
3) By record or judgment
4) By laches
5) Promissory estoppel
6) By silence
- Estoppel by silence arises in a case wherein another person who relied on silence is
prejudiced, as distnguished from admission by silence wherein the burden is on the silent
person and no one is prejudiced

Instances of conclusive presumptions:

1) Party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe
a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such
declaration, act or omission, be permitted to falsify it

 Equitable estoppel (reliance as true)

 Acts, declarations  representation; omissions  inaction
 NO estoppel if other party knows

2) Tenant is not permitted to deny the title of his landlord at the time of the commencement of the
relation of landlord and tenant between them

 Estoppel by deed
 At the onset, tenant affirms landlord’s title (only at the commencement since title may be
questioned during the relation)
 There may be prescription (ownership is attained)

Conclusive presumptions are NOT absolute.

 Attack facts which would lead to the presumption

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  NOT absolute, but the moment the facts are settled and presumption is established, then they become
conclusive
 Facts from which conclusive nature would arise
 Do NOT attack the conclusion (end result) since it cannot be overturned

Conclusive presumption cannot be disputed? Yes. Once created, cannot be disputed. But the facts which
created the presumption, you can dispute in order that the conclusive presumption will not arise.
Estoppel – a bar which precludes a person from denying or asserting anything to the contrary of that which
has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative officers or
by his own deed or representations, either express or implied

Kinds or Classifications of Estoppel:

1) By matter in pais – equitable estoppel; a term applied to a situation where, because of something
which he has done or omitted to do so, a party is denied the right to plead or prove an otherwise
important fact

 Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led
another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation
arising out of such declaration, act or omission, be permitted to falsify it.

 Elements of estoppel in pais as related to the party claiming it:

1. Lack of knowledge and of the means of knowledge of the truth as to the facts in question
2. Reliance upon the conduct of the party estopped
3. Action based thereon of such character as to change his position prejudicially

 Elements of estoppel in pais as related to the party estopped:

1. Conduct which amounts to a false representation or concealment of material facts, or at least,
which is calculated to convey the impression that the facts are otherwise than, and inconsistent
with, those which the party subsequently attempts to assert
2. Intention, or at least expectation, that such conduct shall be acted upon by the other party
3. Knowledge, actual or constructive, of the real facts

 Estoppel in pais or equitable estoppel. Because of an act, declaration or omission, you make a
representation. it is an intentional representation and because of that representation, a person relied
on that representation as true and heavily relied on such representation and acted based on such
representation. The most important thing: the person claiming the estoppel does not know of the facts
because if he knew the facts, he cannot claim estoppel. He is ignorant of the facts.

 What are the kinds of estoppel which are akin to equitable estoppel?

1) Promissory estoppel – if not for the declaration or promise which was relied upon by the other
person as true, you may not have acted on such promise
2) Estoppel by silence – person relied on your omission because you did not act, and having relied
on your omission as true, he acted on it
3) Estoppel on the question of jurisdiction – there is estoppel if you failed to raise the issue of
jurisdiction within a reasonable time
4) Estoppel by laches – failure to act on an unreasonable period of time; sleeping on one’s rights

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  A party who knows or should know the truth is absolutely precluded, both in law and in equity, from
denying or asserting the contrary of any material fact which, by his own words or conduct, affirmative
or negative, intentionally or through culpable negligence, he has induced another, who was excusably
ignorant of the true facts and who had a right to rely upon such words or conduct, to believe and act
upon them thereby, as a consequence reasonably to be anticipated, changing his position in such a way
that he would suffer injury if such denial or contrary assertion were allowed.

2) By deed – a bar which precludes a party to a deed and his privies from asserting as against the other
and his privies any right or title in derogation if the deed, or from denying the truth of any material fact
asserted in it

 Estoppel by deed appears from the face of the deed and does not require all of the elements of
estoppel in pais. It pertains to a contract as to an owner of a property and a tenant. The source
of the right to possess is the landlord so the tenant has no right to contest the title of the
landlord. It may conclude a party without reference to the moral qualities of his conduct.

3) By record or judgment – the preclusion to deny the truth of matters set forth in a record, whether
judicial or legislative, and also to deny the facts adjudicated by a court of competent jurisdiction

 Estoppel by record is limited to judicial and legislative records.

Laches – unreasonable delay to seek or to enforce a right at a proper time

Estoppel by laches – a neglect to do something which one should do or to seek to enforce a right at a proper
time

Elements of estoppel by laches:

1. Conduct on the part of the defendant or of one under whom he claims, giving rise to the situation of
which complaint is made and for which the complainant seeks a remedy
2. Delay in asserting the complainant’s rights, the complainant having had knowledge or notice of the
defendant’s conduct and having been afforded an opportunity to institute suit
3. Lack of knowledge or notice on the part of the defendant that the complainant would assert the right
on which he bases his suit
4. Injury or prejudice to the defendant in the event relief is accorded to the complainant, or the suit is not
held to be barred

Statutory instances of estoppel:

i. Non-owner transferor who later acquires title passes ownership to the transferee by operation of law
(Art. 1434 NCC)
ii. Agent who alienates can not claim title against the transferee (Art. 1435 NCC)
iii. Lessee or a bailee is estopped from asserting title to the thing leased or received, as against the lessor
or bailor. (Art. 1436 NCC)
iv. Contract between 3rd persons concerning immovable property, one of them is misled by a person with
respect to the ownership or real right over the real estate, the latter is precluded from asserting his
legal title or interest therein, provided all these requisites are present:
 fraudulent representation or wrongful concealment of facts known to the party estopped;
 party precluded must intend that the other should act upon the facts as misrepresented;
 party misled must have been unaware of the true facts; and
 party defrauded must have acted in accordance with the misrepresentation. (Art. 1437 NCC)

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 v. One who has allowed another to assume apparent ownership of personal property for the purpose of
making any transfer of it, cannot, if he received the sum for which a pledge has been constituted, set
up his own title to defeat the pledge of the property, made by the other to a pledgee who received the
same in good faith and for value. (Art. 1438 NCC)

Sec. 3. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted, but may
be contradicted and overcome by other evidence:

(a) That a person is innocent of crime or wrong;

fact: unlawful act

(b) That an unlawful act was done with an unlawful intent;

fact: unlawful act

(c) That a person intends the ordinary consequences of his voluntary act;
fact: voluntary act

(d) That a person takes ordinary care of his concerns;

fact: performance of an act

(e) That evidence willfully suppressed would be adverse if produced;

fact: suppression of evidence

(f) That money paid by one to another was due to the latter;
fact: payment

(g) That a thing delivered by one to another belonged to the latter;

fact: delivery

(h) That an obligation delivered up to the debtor has been paid;

fact: payment and issuance of a receipt (most recent receipt; indicate coverage to be safe)

(i) That prior rents or installments had been paid when a receipt for
(ii) the later one is produced;

(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and
the doer of the whole act; otherwise, that things which a person possess, or exercises acts of ownership
over, are owned by him;
fact: possession of a thing

(k) That a person in possession of an order on himself for the payment of the money, or the delivery of
anything, has paid the money or delivered the thing accordingly;
fact: possession of an order for payment or delivery

(l) That a person acting in a public office was regularly appointed or elected to it;
fact: discharge of public office

(m) That official duty has been regularly performed;

fact: performance of official duty

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(n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful
exercise of jurisdiction;
fact: exercise of judicial function

(o) That all the matters within an issue raised in a case were laid before the court and passed upon by it; and
in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before
the arbitrators and passed upon by them;
fact: decision or judgment of court or arbitrators

(p) That private transactions have been fair and regular;

fact: transaction

(q) That the ordinary course of business has been followed;

fact: doing of business or acts in pursuance of the business

(r) That there was a sufficient consideration for a contract;

fact: contract

(s) That a negotiable instrument was given or indorsed for a

sufficient consideration;
fact: indorsement/drawing of a negotiable instrument

(t) That an endorsement of negotiable instrument was made before the instrument was overdue and at the
place where the instrument is dated;
fact: indorsement/datng of a negotiable instrument

(u) That a writing is truly dated;

fact: writing/dating

(v) That a letter duly directed and mailed was received in the regular course of the mail;
fact: letter sent/mailed

(w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he is
considered dead for all purposes, except for those of succession.
fact: absence

The absentee shall not be considered dead for the purpose of opening his succession till after an absence of
ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in
order that his succession may be opened.

The following shall be considered dead for all purposes including the division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aircraft with is missing, who has not
been heard of for four years since the loss of the vessel or aircraft;
- has not been “heard” of includes both communication and knowledge
(2) A member of the armed forces who has taken part in armed hostilities, and has been missing for
four years;
- includes a chaplain who gives moral support
(3) A person who has been in danger of death under other circumstances and whose existence has
not been known for four years;

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 (4) If a married person has been absent for four consecutive years, the spouse present may contract
a subsequent marriage if he or she has well-founded belief that the absent spouse is already dead. In
case of disappearance, where there is a danger of death the circumstances hereinabove provided, an
absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage.
However, in any case, before marrying again, the spouse present must institute a summary
proceedings as provided in the Family Code and in the rules for declaration of presumptive death of
the absentee, without prejudice to the effect of reappearance of the absent spouse.
- law promotes lawful union, NOT illicit relationships; human nature: longing of the spouse for affection
(who was alone)

(x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact;
fact: acquiescence/conformity

(y) That things have happened according to the ordinary course of nature and ordinary nature habits of life;
fact: happening of a thing

(z) That persons acting as copartners have entered into a contract of copartnership;
fact: acting as co-partners

(aa) That a man and woman deporting themselves as husband and wife have entered into a lawful
contract of marriage;
- deportment as husband and wife; considering a number of circumstances
(bb) That property acquired by a man and a woman who are capacitated to marry each other and
who live exclusively with each other as husband and wife without the benefit of marriage or under
void marriage, has been obtained by their joint efforts, work or industry.
- facts:
1) Capacitated to marry each other
2) Lived exclusively each other as husband and wife without benefit of marriage or under a void
marriage
3) Property has been obtained by their joint efforts, work or industry
(cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each
other and who have acquired properly through their actual joint contribution of money, property or
industry, such contributions and their corresponding shares including joint deposits of money and
evidences of credit are equal.
- facts:
1) NOT capacitated to marry each other
2) Lived exclusively each other as husband and wife
3) Property has been acquired through their actual joint contribution of money, property or
industry
(dd) That if the marriage is terminated and the mother contracted another marriage within three
hundred days after such termination of the former marriage, these rules shall govern in the absence
of proof to the contrary:

(1) A child born before one hundred eighty days after the solemnization of the subsequent
marriage is considered to have been conceived during such marriage, even though it be born
within the three hundred days after the termination of the former marriage.

Marriage terminated ----- 300 days ----- child born ----- 180 days after subsequent marriage

o if NO subsequent marriage, NO presumption (R131 S4)

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 o belongs to the subsequent marriage
o 300 days is the period of gestation of a woman; full term: 9 months
o child should be born within 300 days
o “terminated” - must be legally dissolved

(2) A child born after one hundred eighty days following the celebration of the subsequent
marriage is considered to have been conceived during such marriage, even though it be born
within the three hundred days after the termination of the former marriage.

Marriage terminated ----- Subsequent marriage ----- 180 days ----- child born ----- 300 days after
termination of the former marriage

o belongs to the subsequent marriage

Presumptions: only disputable

1) If born before 180, within 300 of the former marriage, it is of the former marriage
2) If born after 180, even within 300 of the former marriage, it is of the subsequent marriage
3) If after 300, with more reason it is of the subsequent marriage

 Child born before 180 days after the solemnization of the subsequent marriage

 If born within 180 days following the 2nd marriage, it is the child of the 2nd husband.
 This presumption can be overthrown only when the husband presumed to be the father, or his
heirs in proper cases, brings an action to impugn the legitimacy of the child.
 The child himself cannot choose his own filiation. If the husband presumed to be the father
does not impugn, the status of the child is fixed, and the child cannot choose to be the child of
the other husband.

 Child born after 180 days following the celebration of the second marriage

 If the child is born after 180 days following the celebration of the 2 nd marriage, it is the child of
the 2nd husband.
 This presumption may be overthrown by:
1) Proving physical impossibility of access by the husband to the wife during the period of
conception of the child
2) Showing that the wife, upon the death of the 1 st husband, or upon annulment of her
marriage, gave notice of pregnancy as required under Article 260, because such notice
shall be deemed to be true
3) Proving that the 1st husband has left some document expressly acknowledging the
pregnancy of the wife at the time of his death
4) Utilizing blood test exclusions, to show that the child and the 2 nd husband belong to
different blood groups

(ee) That a thing once proved to exist continues as long as is usual with things of the nature;
- a thing of a similar nature exists
(ff) That the law has been obeyed;
- law
(gg) That a printed or published book, purporting to be printed or published by public authority, was
so printed or published;
- publication purportedly published by a public authority

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 (hh) That a printed or published book, purporting to contain reports of cases adjudged in tribunals of
the country where the book is published, contains correct reports of such cases;
- printed/published book containing reports of cases
(ii) That a trustee or other person whose duty it was to convey real property to a particular person
has actually conveyed it to him when such presumption is necessary to perfect the title of such
person or his successor in interest;
- trustee with duty to convey to perfect title
(jj) That except for purposes of succession, when two persons perish in the same calamity, such as
wreck, battle, or conflagration, and it is not shown who died first, and there are no particular
circumstances from which it can be inferred, the survivorship is determined from the probabilities
resulting from the strength and the age of the sexes, according to the following rules:
- NOT applicable to succession; only to other purposes than succession; e.g. insurance claim (if
beneficiary dies first, claims redound to his heirs), condition that property is conveyed if X survives,
criminal case with civil aspect, but if with self-defense, NOT necessary, NOT applicable
- could be refuted; only applicable if NO facts to rely on (e.g. that there are witnesses); disputable
presumptions are only good if NOT rebutted
- if both 35 and male, consider factors such as lifestyle and health
1. If both were under the age of fifteen years, the older is deemed to have survived;
2. If both were above the age sixty, the younger is deemed to have survived;
3. If one is under fifteen and the other above sixty, the former is deemed to have survived;
4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to
have survived, if the sex be the same, the older;
5. If one be under fifteen or over sixty, and the other between those ages, the latter is
deemed to have survived.
(kk) That if there is a doubt, as between two or more persons who are called to succeed each other,
as to which of them died first, whoever alleges the death of one prior to the other, shall prove the
same; in the absence of proof, they shall be considered to have died at the same time. (5a)
- applicable to succession
e.g. A married to B with C as their child, and D as the child of C

A and C died in a plane crash.

If C dies first, A cannot inherit.  Love descends; there is D.
If A dies first, C can inherit.  D can inherit by representation

Miscellaneous Presumptions:

a) Love of life and avoidance of danger

b) Suicide
c) Virility of men
d) Capacity of women for childbearing
e) Flight
f) Attempts to escape
g) Concealing the body of the victim
h) Surrendering to authorities or resisting arrest
i) Confusion, embarrassment, etc.
j) Demeanor subsequent to the crime
k) Falsehood by accused or suspected persons
l) Constitutionality
m) Waiver of constitutional rights
n) Voluntariness

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 o) Res ipsa loquitor
p) Foreign law same as law of forum (processual presumption)

Sec. 4. No presumption of legitimacy or illegitimacy. — There is no presumption of legitimacy of a child born

after three hundred days following the dissolution of the marriage or the separation of the spouses.
Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation. (6)
- child born after 300 days

RULE 132

PRESENTATION OF EVIDENCE

A. EXAMINATION OF WITNESSES

SECTION 1. Examination to be done in open court. — The examination of witnesses presented in a trial
or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to
speak, or the questions calls for a different mode of answer, the answers of the witness shall be given orally.
(1a)

Examination of witnesses presented in a trial or hearing:

1) Done in open court

2) Under oath or affirmation
3) Answers of the witness shall be given orally, unless
a. Witness is incapacitated to speak, or
b. Question calls for a different mode of answer

Witness – one who testifies in a cause or gives evidence before a judicial tribunal

Open court – a court formally opened and engaged in the transaction of judicial affairs, to which all persons
conduct themselves in an orderly manner are admitted

Oath – an appeal by a person to God (Supreme Being) to witness the truth of what he declares and an
impreciation of Divine punishment or vengeance upon him if what he says is false
- in its broadest sense, includes any form of attestation by which a party signifies that he is bound in
conscience to perform an act faithfully and truthfully
- an outward pledge given by the person taking it that his attestation or promise is made under an
immediate sense of responsibility to God
- Purpose: to affect his conscience and thus compel him to speak the truth, and also to lay him open to
punishment for false testimony in case he willfully testifies
- Form: immaterial, provided it is a form which in the witness’ belief invokes the fear of supernatural
punishment (In this jurisdiction, the wording of the oath is: “Do you swear to tell the truth, the whole
truth, and nothing but the truth? So help you God.”

Affirmation – a solemn and formal declaration or assertion that the witness will tell the truth, etc., this being
substituted for an oath in certain cases
- a solemn declaration without oath
- does NOT implore the guidance of a supreme being; one affirms being a man of integrity
- if untrue, one may be held liable for false testimony under the RPC

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  The right to have a witness sworn may be waived either expressly or by going forward in the matter
without inquiry or objection.

 The court may commit for contempt a witness who refuses to be sworn or to affirm.

 Recalled witness need not be sworn again.

Perjury – preparation of a document under oath; applies to both oath and affirmation

 Testimony is made orally; if witness cannot speak, an interpreter for the sign language may be availed
of. (testimony is recorded after the sign is verbalized)

Blind

Blind and Deaf – Braille; write; signals

Japanese, Korean, Russian – person proficient in the language; pool of interpreters or referrals from the
embassy; judge would not normally rely on an outsider

 Generally, the testimony should not be given in a narrative form. The danger is that irrelevant and
other improper evidence may be interjected and a motion to strike out may become necessary.

 The testimony of a witness may be given in a continuous uninterrupted narrative:

1) Where a party witness is his own counsel

2) When allowed by the trial court in the exercise of its discretion, as in the case of a witness
allowed to describe a transaction from the beginning once his attention has been drawn to the
time and place of the scene of action

Sec.2. Proceedings to be recorded. — The entire proceedings of a trial or hearing, including the questions
propounded to a witness and his answers thereto, the statements made by the judge or any of the parties,
counsel, or witnesses with reference to the case, shall be recorded by means of shorthand or stenotype or by
other means of recording found suitable by the court.
A transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder and
certified as correct by him shall be deemed prima facie a correct statement of such proceedings. (2a)

Requisites for transcript to be deemed prima facie a correct statement of the proceedings:

1) Made by the official stenographer, stenotypist or recorder

2) Certified as correct by him

Records – law makes no qualification; discretionary

Stories, jokes and comments of the judge are recorded but not transcribed.
 in practice, only those with reference to the case are recorded; the “meat”

“Recorded”  TSN; the tape recorder is only a back-up

 Clerks know the attitude of the judge.

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  Ideally, record the “meat” of the proceedings.

Sec. 3. Rights and obligations of a witness. — A witness must answer questions, although his answer may
tend to establish a claim against him. However, it is the right of a witness:
(1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting
demeanor;
(2) Not to be detained longer than the interests of justice require;
(3) Not to be examined except only as to matters pertinent to the issue;
(4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise
provided by law; or
(5) Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue
or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his
previous final conviction for an offense. (3a, 19a)

The object of all examination of witnesses is to elicit facts to show the truth.

Obligation of a witness – answer questions, although his answer may tend to establish a claim against him

Rights of a witness:

1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting
demeanor;
 Irrelevant (fact in issue), improper (not material), insulting (e.g. “Now you’re telling me you
read the communication. Can you really read? Any formal schooling?”; even degrading)

2) Not to be detained longer than the interests of justice require;

 Holding the witness under the court’s control for him to testify

3) Not to be examined except only as to matters pertinent to the issue;

 Irrelevant

4) Not to give an answer which will tend to subject him to a penalty for an offense, unless otherwise
provided by law; or
 “offense” – pertains to self-incrimination which right is available only if it gives rise to a civil
case, and not a criminal case
 The privilege against self-incrimination must be invoked at the proper time, and the power to
invoke it is when a question calling for an incriminating answer is propounded.
 Question need not be actually incriminating. It is enough if the question has a tendency to
incriminate.
 The privilege is not limited to facts constituting an element of a crime. It extends to any fact
which tends to establish a criminal offense. The privilege extends to inculpatory documents.
 It may be invoked in all kinds of proceeding where testimony is to be taken, including
investigation by legislative bodies.
 Since it is a personal right to be exercised by him alone, the privilege may be waived by a
witness and, when waived by him, cannot thereafter be asserted.
 If the witness discloses part of a transaction in which he was criminally concerned, he cannot
hold back the rest. He must tell the whole.

5) Not to give an answer which will tend to degrade his reputation, unless it be to the fact
a. At issue or

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 b. From which the fact in issue would be presumed
c. Of his previous final conviction for an offense.
 Generally, not allowed
 3 Exceptions: when degrading questions are allowed

e.g.
rape case – Is she a prostitute? (character evidence of offended party)

annulment of marriage on the ground of impotence (to give a “window” and to prevent adultery)
- sex is a biological need; part of marriage
- since woman’s need is not satisfied, and not because of an illness
- women aged 30-45 are sexually active

case for serious physical injuries where the penis was castrated
- questions on feeling, reaction, consequence of castration are allowed

STD – question asked to a woman, not degrading to a man

AIDS – question relating to blood transfusion and various sexual partners are allowed

e.g. fact in issue may be presumed

Witness saw from the window the commission of the crime

- but witness’ legs are amputated and the window is even higher that the witness himself

Sec. 4. Order in the examination of an individual witness. — The order in which the individual witness may
be examined is as follows;
(a) Direct examination by the proponent;
(b) Cross-examination by the opponent;
(c) Re-direct examination by the proponent;
(d) Re-cross-examination by the opponent. (4)

Sec. 5. Direct examination. — Direct examination is the examination-in-chief of a witness by the party
presenting him on the facts relevant to the issue. (5a)

Direct examination – the examination-in-chief or initial examination of a witness by the party presenting him
on the facts relevant to the issue

 Only 1 requisite of the cause of action/element of the crime is enough (e.g. medical officer on direct
examination to establish the fact of death)
 Indicate purpose for which the witness is presented
 Facts relevant to the issue are facts from the existence of which inference as to the truth or existence
of the right or liability to be ascertained may logically be drawn.
 To determine the relevancy of evidence, the pleadings of the parties must first be looked to for the
purpose of ascertaining the issue.
 The direct examination should build up the theory of the case and nothing more.

Sec. 6. Cross-examination; its purpose and extent. — Upon the termination of the direct examination, the
witness may be cross-examined by the adverse party as to many matters stated in the direct examination, or

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connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom
from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. (8a)

Cross-examination – examination of a witness by the party opposed to the party who called such witness, the
latter party having examined, or having been entitled to examine, such witness in chief

 Evidence elicited on cross-examination is regarded as testimony on the part of the party calling the
witness, and not as evidence of the party cross-examining.

Witness may be cross-examined by the adverse party:

1) As to any matters stated in the direct examination, or connected therewith

2) With sufficient fullness and freedom to
a. Test his
 accuracy and
 truthfulness and
 freedom from interest or bias, or the reverse
b. Elicit all important facts bearing upon the issue

Dual function of cross examination:

1) To impeach (test accuracy, truthfulness and freedom from interest or bias or the reverse)
2) To elicit all important facts bearing upon the issue

 opportunity to get information; dangerous; why? surprise; more or less, the counsel know the answers to
the questions
 difficult if the witness describes because there is a tendency to narrate (favorable to the witness)
 what is important is that there is an opportunity to cross; may be waived or forfeited; R115 (F) and R130 S47

Scope of cross examination: Matters

1) Stated in the direct examination – how autopsy conducted

2) Connected therewith – Based on your experience, how many hours will a person with a stab wound on
his chest survive? (there is a relation)

Sec. 7. Re-direct examination; its purpose and extent. — After the cross-examination of the witness has
been concluded, he may be re-examined by the party calling him, to explain or supplement his answers given
during the cross-examination. On re-direct-examination, questions on matters not dealt with during the
cross-examination, may be allowed by the court in its discretion. (12)

Re-direct examination:

1) To explain or supplement his answers given during the cross-examination

2) With leave of court, on matters not dealt with during the cross-examination in the court’s discretion

 The main object of re-examination is to prevent injustice to the witness and the party who has
called him by affording an opportunity to the witness to explain or amplify the testimony which
he has given on cross-examination and to explain any apparent contradiction or inconsistency
in his statements, an opportunity which is not ordinarily afforded to him during his cross-
examination.

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  On re-examination, the witness may be allowed to reaffirm or explain his statements, their
meaning or import, and to minimize or destroy discrediting tendencies.

e.g. at direct: witness answered that he was at the scene of the crime
at re-direct: witness explains that he was there to buy something

Sec. 8. Re-cross-examination. — Upon the conclusion of the re-direct examination, the adverse party may
re-cross-examine the witness on matters stated in his re-direct examination, and also on such other matters
as may be allowed by the court in its discretion. (13)

Re-cross-examination:

1) On matters stated in his re-direct examination, and

2) With leave of court, other matters in the court’s discretion

Sec. 9. Recalling witness. — After the examination of a witness by both sides has been concluded, the
witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion,
as the interests of justice may require. (14)

 A witness can be recalled only with leave of the court.

 The matter of recalling rests in the court’s discretion and is available to both sides.

 A party who has examined a witness is not entitled as a matter of right to recall him; or may a party
reserve the right to recall a witness for re-examination, without the consent of the opposing party.

 Permission to recall a witness should be sought by special application. The court has no power to
compel either party to recall his witness against his will.

Sec. 10. Leading and misleading questions. — A question which suggests to the witness the answer which the
examining party desires is a leading question. It is not allowed, except:
(a) On cross examination;
(b) On preliminary matters;
(c) When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant, or
a child of tender years, or is of feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an officer, director, or managing agent of a public or private
corporation or of a partnership or association which is an adverse party.
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. (5a, 6a, and 8a)

Leading questions – a question which suggests to the witness the answer which the examining party desires;
test: suggestiveness of the question’s substance
- not confined to those answerable by yes/no

e.g. “Were you in Sta. Mesa?”

GR: Leading questions not allowed.

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Exceptions:

1) Cross examination

2) Preliminary matters – not applicable to documents which need the laying of the basis

e.g. “Who is the accused?”

“Why do you know him?”
“Was he in the church?”
“Is it correct to say that you were employed by the company?”

This may also be done for purposes of qualification of a witness

3) Difficulty in getting direct and intelligible answers from a witness who is:
a. Ignorant
b. Child of tender years
c. Feeble mind – cannot make a decision; confused
d. Deaf-mute

4) Unwilling or hostile witness (cf Rule 132, Sec. 12)

Sec. 12. Party may not impeach his own witness. – xxx
A witness may be considered as unwilling or hostile only if so declared by the court upon
adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled
the party into calling him to the witness stand.

5) Witness is an adverse party or an officer, director, or managing agent of a public or private

corporation or of a partnership or association which is an adverse party.

Adverse party witness – adverse party himself

Adverse party’s witness – witness of the adverse party

Plaintiff Defendant
Witnesses: Witnesses:

1 (P) 1
2
 offer of testimonial evidence 3 (P)
varies
Adverse party makes the plaintiff
as his 3rd witness; P won’t be
expected to answer

Why present P? purposes may be

different when P presents P and D
presents P

 A declaration of being hostile made by the court does not preclude his being subject to cross-
examination.

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Misleading question – one which assumes as true a fact not yet testified to by the witness, or contrary to that
which he has previously stated.

e.g. If there is no basis and this is asked: “Could you tell us why you were in Sta. Mesa?” or “While in Sta. Mesa,
what did you do?”

 Misleading questions are never allowed. No exceptions.

Sec. 11. Impeachment of adverse party's witness. — A witness may be impeached by the party against whom
he was called, by contradictory evidence, by evidence that his general reputation for truth, honestly, 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. (15)

Impeachment – right of a party to impeach the credibility of a witness whom he did not call.

 Generally, any fact or circumstance tending in the least to discredit a witness is admissible to impeach
him, and a party, especially the accused, is entitled to all the evidence in the case legitimately bearing
upon the question of the veracity of a witness of the prosecution.

Ways to impeach:

1) General reputation for truth, honesty, integrity is bad – refers to character

2) Prior inconsistent statements – does not refer to character

a) Oral
b) Written

Impeachment of adverse party's witness:

1) Contradictory evidence
2) Evidence that his general reputation for truth, honesty, or integrity is bad
3) Evidence that he has made at other times statements inconsistent with his present testimony
4) Evidence of conviction of an offense shown by the examination of the witness or the record of the
judgment

Other modes of impeachment:

1) By involving him during the cross-examination in contradictions

2) By showing the impossibility or improbability of his testimony
3) By proving acts or conduct of the witness inconsistent with his testimony
4) By showing bias, interest or hostile feeling against the adverse party

 Usually, the impeachment of a witness should take place either during the cross-examination
or during the presentation of the other party’s case.

 The credit of a witness cannot be impeached after the hearing and decree, and a party desiring
to impeach his own witness must do so before closing his case.

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Truth – means conformity to fact or reality; exact accordance with that which is, or has been or shall be

Honesty – signifies the quality or state of being, straightforwardness of conduct, thought, speech, etc.

Integrity – defined as moral soundness; honesty; freedom from corrupting influence or practice; especially
strictness in the fulfillment of contracts, the discharge of agencies, trusts, and the like; uprightness, rectitude

 The impeaching testimony must be confined to the general reputation of the witness as to truth,
honesty or integrity.

 Impeaching witnesses may themselves be impeached, but only by the usual methods and by questions
properly framed.

Sec. 12. Party may not impeach his own witness. — Except with respect to witnesses referred to in
paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his credibility.
A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing
of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the
witness stand.
The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by
the party presenting him in all respects as if he had been called by the adverse party, except by evidence of
his bad character. He may also be impeached and cross-examined by the adverse party, but such cross-
examination must only be on the subject matter of his examination-in-chief. (6a, 7a)

GR: The party producing a witness is not allowed to impeach his credibility.

Exceptions: When party may impeach his own witness (except evidence of bad character)

1) Unwilling or hostile witness; or

2) Witness who is an adverse party or an officer, director, or managing agent of a public or private
corporation or of a partnership or association which is an adverse party.

Grounds for declaring a witness unwilling or hostile:

1) Adverse interest
2) Unjustified reluctance to testify, or
3) Misled the party into calling him to the witness stand

Consequences of being an unwilling, hostile, or adverse witness:

1) May be impeached by the proponent, except by evidence of bad character

2) May also be impeached by the opponent
3) May be cross-examined by the opponent, only on the subject matter of his direct examination
4) Proponent may ask leading questions

Impeach – is applied to testimony to indicate that it is erroneous

To impeach – to call into question the veracity of a witness by means of evidence offered for that purpose, or
by showing that the witness is unworthy of belief

Impeachment – an allegation, supported by proof, that a witness who has been examined is unworthy of credit

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Credibility of a witness – their disposition and intention to tell the truth in the testimony they have given

Hostile witness – one who manifests so much hostility or prejudice under examination-in-chief that the party
who has called him, or his representative, is allowed to cross-examine him, that is to treat him as though he
had been called by the opposite party

Adverse party – adverse to the party calling him and actively seeks a recovery against, or opposing a recovery
by such party, or a person for whose immediate benefit the action was brought or defended

 A proper foundation should be laid in order to impeach a witness.

Sec. 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 circumstances 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. (16)

Requisites for impeaching a witness by prior inconsistent statements which may be oral or in writing:

1) If the statements be in writing they must be shown to the witness before any question is put to him
concerning them
2) Statements must be
a. Related to him
b. With the circumstances of the times and places and the persons present
3) He must be asked whether he made such statements
4) If so, allowed to explain them

 If the witness refuses to acknowledge the prior inconsistent statement, present someone who can
testify that the recording of the prior statement was accurate (e.g. stenographer, in which case, the
statement is prima facie evidence of the fact stated therein).

 There must be a real inconsistency between the two assertions of the witness. It is not a mere
difference of statement that suffices; nor yet is an absolute oppositeness essential; it is an
inconsistency that is required.

 To be impeaching, the prior testimony must not only be contradictory, but must also have reference to
matters relevant to his testimony and the case.

 In other words, the statement which it is intended to contradict must involve facts in evidence, and the
varying statements sought to be shown must be relevant to the issues. To this rule, there is an
exception, with respect to prior statements showing the existence of bias, prejudice, or interest denied
by the witness.

 The proper foundation for impeachment depends upon whether the inconsistent statement is oral or
written.

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  Statements of a witness, which are admissible as independent evidence may be shown without laying
the foundation for their admission, although they are contradictory to the testimony of the witness and
hence tend to impeach him.

 When a witness is impeached by proof of prior inconsistent statements, its effect is merely to discredit
him as witness; former statements are incompetent for any other purpose, and do not constitute
evidence of truth of facts stated. It bears on the witness’ credibility.

Sec. 14. Evidence of good character of witness. — Evidence of the good character of a witness is not
admissible until such character has been impeached. (17)

cf Rule 130, Sec. 51

Sec. 51. Character evidence not generally admissible; exceptions. –

xxx
(c) In the case provided for in Rule 132, Section 14. (46 a, 47 a)

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

 GR: This rule applies to any witness

Exc: Character evidence where specific provisions apply
Does this apply to a party who is a witness? No but character of such witness may be attacked in
offenses where character is involved. (i.e. estafa)

 The character or reputation of a witness must be attacked or impeached before testimony sustaining
his character or reputation can be admitted, but it is not necessary that character witnesses for
impeachment purposes should first be introduced if the veracity or character of the witness has been
substantially impeached in other ways.

 There is a distinction between an attack on the character of a witness, as such, for credibility and an
attack on the nature of the testimony given for belief.

Sec. 15. Exclusion and separation of witnesses. — On any trial or hearing, the judge may exclude from the
court any witness not at the time under examination, so that he may not hear the testimony of other
witnesses. The judge may also cause witnesses to be kept separate and to be prevented from conversing
with one another until all shall have been examined. (18)

 This rule applies to the trial of civil and criminal cases.

 because other witnesses may attune their testimony to that of the witness on the stand
 cf R119 S21 Exclusion of the public if the evidence to be produced during the trial is offensive to
decency or public morals (motu proprio or upon motion of the accused)

 The rule does not apply to the following:

1) Party to an action
2) Expert witnesses
3) Witnesses in rebuttal
4) Agent of the party, when the presence of such agent is necessary, as when the agent has gained
such familiarity with the facts that his presence is necessary for the proper management of the
action or defense
5) Witnesses called to testify to another witness’ character for truth and veracity

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 6) Policemen, detectives, or other police officers in criminal cases in the court’s discretion
7) Party in interest, though not a party to the record

 The court has wide discretion as to the order of proof, and it would be within that discretion to order
the party to be called first.

Sec. 16. When witness may refer to memorandum. — A witness may be allowed to refresh his memory
respecting a fact, by anything written or recorded by himself or under his direction at the time when the fact
occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and knew
that the same was correctly written or recorded; but in such case the writing or record must be produced
and may be inspected by the adverse party, who may, if he chooses, cross examine the witness upon it, and
may read it in evidence. So, also, a witness may testify from such writing or record, though he retain no
recollection of the particular facts, if he is able to swear that the writing or record correctly stated the
transaction when made; but such evidence must be received with caution. (10a)

Requisites for a witness to refer to a memorandum:

1) Memorandum must have been written or recorded by himself or under his direction
2) Either:
a. At the time when the fact occurred, or
b. Immediately thereafter, or
c. Any other time when the fact was fresh in his memory
3) Knew that the same was correctly written or recorded
4) Memorandum must be produced and may be inspected by the adverse party, who may, if he chooses,
cross-examine the witness upon it, and may read it in evidence
5) If the witness retains no recollection of the particular facts, he must swear that the writing or record
correctly stated the transaction when made

 While the general rule requires that a witness should testify only to such facts as are within his
personal knowledge and recollection, this requirement is not violated by permitting him to
refresh such knowledge.

 The theory is simply that the knowledge or recollection is that of the witness, resting on his
original personal observations, but that, having grown hazy through lapse of time, a recreative
stimulus may properly be applied.

 The rule contemplates two situations:

1) Present recollection revived – evidence is the testimony

2) Past recollection recorded – evidence is the document; no independent recollection of

fact; “So also…”

 In order that a writing may be admissible as a record of the witness’ past recollection, a proper
foundation must be laid by showing that the witness once knew the facts narrated in the
memorandum, that he recollects the making of the memorandum, and that it was truly made
so that he can swear that it is correct. It must be shown that the witness has no present
independent recollection.

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  The memorandum is the document itself and should not be a summary brief. It still has to be
authenticated in both cases.

 Authentication does not usually happen if the document is public. (irremovability of public
record and the public officer would not testify)

 If it is testimony, other party may examine and inspect.

 If document is presented, mark as an exhibit and also authenticate.

 If document is false, testimony is also false.

 “By anything written or recorded by himself or under his direction at the time when the fact
occurred or immediately thereafter, or at any other time when the fact was fresh in his
memory and he knew that the same was correctly written or recorded” applies to both present
recollection revived and past recollection recorded.

3 Phases of practice: “Refreshment of memory”

1) Instances where the witness’ faded memory is actually refreshed so that he testifies from independent
resensing or revisualization of the event itself otherwise termed present recollection of facts which is
revived or refreshed by reading of the memorandum

2) Instances where the witness can no longer recall the event itself in spite of the stimulations, but where
he recalls from his state of mind at the time a memorandum was made and checked up by him and
that he then determined that it was a correct memorandum in view of his then recollection

3) Instances where the witness can neither recall his original memory of the event or his state of mind
when the memorandum was made or checked up by him, but can swear from his habits and course of
business or action that the memorandum would not have existed or been approved by him unless it
was correct

The last two (2) are termed “past recollection.”

 A memorandum used as a record of past recollection must be made available to the other side for
inspection and use on cross-examination.

Sec. 17. When part of transaction, writing or record given in evidence, the remainder admissible. — When
part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the
same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing
or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its
understanding may also be given in evidence. (11a)

 When part of an act, declaration, conversation, writing or record is given in evidence by one party,
the whole of the same subject may be inquired into by the other.

 When a detached act, declaration, conversation, writing or record is given in evidence, any other
act, declaration, conversation, writing or record necessary to its understanding may also be given in
evidence.

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Sec. 18. Right to respect writing shown to witness. — Whenever a writing is shown to a witness, it may be
inspected by the adverse party. (9a)

 Where a party has a document which he desires to introduce in evidence, the adverse party has a right
to inspect it to enable him to cross-examine the witness.

B. AUTHENTICATION AND PROOF OF DOCUMENTS

Sec. 19. Classes of Documents. — For the purpose of their presentation evidence, documents are either
public or private.
Public documents are:
(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 the entered therein.
All other writings are private. (20a)

 Documents are either public or private, for the purpose of their presentation in evidence.

Public documents:

1) Written official acts, or records of the official acts of the sovereign authority, official bodies and
tribunals, and public officers, whether of the Philippines, or of a foreign country

2) Notarized documents, except last wills and testaments – acknowledged

 Transfer, cede, assign rights and interests

 If lost: present either secondary evidence or certified true copy from the clerk of the court
which appointed or commissioned the notary (better option)

 Wills and last testaments are not included; these are personal

3) Public records, kept in the Philippines, of private documents required by law to be entered therein

 e.g.
notice of lis pendens (simple letter) and affidavit of adverse claim (with jurat) recorded at the
RD

birth certificate becomes public by reason of the recording of the private document in a public
office

 cf 2004 Rules on Notarial Practice (A.M. No. 02-8-13-SC effective August 1, 2004)

 The presentation of a certified true copy is available in cases of official acts and public records.

Private documents: by exclusion

Public documents Private documents

Genuineness and authenticity Must prove genuineness and

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presumed due execution
Binding against the parties and Binds only parties to the
3rd persons document
Certain transactions are required
to be in a public document (e.g.
donation of real property)

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:
(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.
Any other private document need only be identified as that which it is claimed to be. (21a)

Requisites for admissibility of private document:

1) Offered as authentic – due execution and authenticity must be proved either

a. By

i. Anyone who saw the document executed or written – personal knowledge

ii. Evidence of the genuineness of the signature or handwriting of the maker.

a) 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
o Upon which the witness has acted or been charged, and
o Has thus acquired knowledge of the handwriting of such
person

b) 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

b. Unless it is an ancient document; requisites

i. More than 30 years old

ii. Produced from a custody in which it would naturally be found if genuine, and

iii. Unblemished by any alterations or circumstances of suspicion

2) Not offered as authentic – identified as that which it is claimed to be

Authentication – process of evidencing the connection, i.e. evidencing the genuineness of the thing; or
evidencing that the thing here shown did come from the very person or place testified to by the witness

Genuineness and Due Execution of the document – that it is not spurious, counterfeit, or of different import on
its face from the one executed (its having been made by the purporting person)

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Cases where authenticity of a private document is not necessary:

1) When the document is ancient

2) When the due execution or genuineness of the document is admitted
3) When the due execution or genuineness of the document is immaterial
4) When the document need only to be identified e.g. anonymous letter (document is not offered as an
authentic document)

Sec. 21. When evidence of authenticity of private document not necessary. — Where a private document is
more than thirty years old, is produced from the 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. (22a)

Requisites for private documents to be exempt from authentication:

1) Ancient documents – those which have been in existence for more than 30 years
e.g. party to an agreement usually has a copy of the same

2) Produced from the custody in which it would naturally be found if genuine

3) Unblemished by any alterations or circumstances of suspicion

 This is on the theory that under such circumstances, the instrument proves itself.

 In computing the age of an ancient document, the time is to be reckoned from the date of
execution to the day when the instrument is to be offered in evidence.

 The competency of the evidence is to be determined by the state of things at the time when it
is offered.

 Document must be found in the proper custody and must on its face appear to be genuine.

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 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. (23a)

The handwriting of a person may be proved:

1) By any witness who believes it to be the handwriting of such person, because:

a) He has seen the person write; or
b) He has seen writing purporting to be his upon which the witness acted or been charged, and
has thus acquired knowledge of the handwriting of such person

2) By a comparison 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, made by the:
a) Witness, or the

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 b) Court

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 therein stated. 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. (24a)

Documents consisting of:

1) Entries in public records made in the performance of a duty by a public officer – prima facie evidence
of the facts therein stated.
2) All other public documents – evidence, even against a 3 rd person, of the fact which gave rise to their
execution and of the date of the latter

 The rule is not absolute. Their probative value may be either substantiated or nullified by other
competent evidence.

Sec. 24. Proof of official record. — The record of public documents referred to in paragraph (a) of Section 19,
when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested
by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not
kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is
kept is in foreign country, the certificate may be made by a secretary of the embassy or legation, consul
general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines
stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (25a)

The record of public documents of official acts may be evidenced by:

1) Official publication thereof or

2) Copy
a. Attested by
 Officer having the legal custody of the record, or
 His deputy, and

b. If the record is not kept in the Philippines

 Accompanied by a certificate that such officer has the custody made by
o Secretary of the embassy or legation
o Consul general
o Consul
o Vice consul, or
o Consular agent or
o Any officer in the foreign service of the Philippines stationed in the foreign country in
which the record is kept
 Authenticated by the seal of his office

Procedure in obtaining copy of foreign official acts:

1) Get a copy from the legal custodian

2) Have the legal custodian attest that the copy is correct
3) Have the Philippine consul certify that the person in #2 is the legal custodian of a copy of official act

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  The test of the admissibility of an official record or document is its public character, and where
the records are essentially private in character, they may not be admitted as public records, as
where they were not kept by a public officer in the regular course of business.

S24:
1) Official publication
a) Official Gazette
b) Newspaper of general circulation

2) Certified true copy

a) If foreign, consular office (civic, social, economic functions)

If there is no embassy, go to the facilities of the DFA.

Taiwan only has a consular office. It has no embassy

MECO-TECO (One-China policy) – go here for documents

Sec. 25. What attestation of copy must state. — Whenever a copy of a document or record is attested for the
purpose of evidence, the attestation 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. (26a)

Attestation of copy must:

1) State the copy is a correct copy of the original, or a specific part thereof, as the case may be

2) 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

 It is not necessary that particular words be used to make effective a certificate attesting a
paper as a certified copy. On principle, the certificate need state no more than that the paper
bearing it is a copy of a specified document in the certifier’s custody.

 There must be showing that the person has authority.

 Include the position of the person attesting.

 The seal is very important.

To certify – to affirm or to assert in writing the correctness or identity of the designated instrument

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
inspection of the record is essential to the just determination of a pending case. (27a)

GR: Any public record, an official copy of which is admissible in evidence, must not be removed from the office
in which it is kept.

Exception: Upon order of a court where the inspection of the record is essential to the just determination of a
pending case

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  Records, being the precedent of the demonstration of justice, to which every man has a common right
to have recourse, cannot be transferred from place to place to serve a private purpose; and therefore,
they have a common repository, from where they ought not to be removed.

 The court can require the presence of the legal custodian through the issuance of a subpoena.

Sec. 27. Public record of a private document. — An authorized public record of a private document may be
proved by the original record, or by a copy thereof, attested by the legal custodian of the record, with an
appropriate certificate that such officer has the custody. (28a)

Public record of a private document may be proved by:

1) Original record, or
2) Copy thereof
a) Attested by the legal custodian of the record
b) With an appropriate certificate that such officer has the custody

 Public records kept in the Philippines of private writings are public writings, and a copy of
the same, duly certified to be true, should be admissible in evidence the same as the
original writing.

Sec. 28. Proof of lack of record. — A written statement signed by an officer having the custody of an official
record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in
the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the
records of his office contain no such record or entry. (29)

Proof of lack of record:

1) Written statement
a) Signed by an officer having the custody of an official record or by his deputy
b) That after diligent search no record or entry of a specified tenor is found to exist in the records
of his office,
2) Accompanied by a certificate that such officer is supposed to have custody

 Certificate is enough but could still be questioned.

If a notarized document is lost, get certifications of loss from:

1) Notary public
2) Bureau of archives
3) Clerk of court who commissioned the notary public

Sec. 29. How judicial record impeached. — Any judicial record may be impeached by evidence of: (a) want 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. (30a)

Any judicial record may be impeached by evidence of:

1) Want of jurisdiction in the court or judicial officer

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 2) Collusion between the parties, or
3) Fraud in the party offering the record, in respect to the proceedings

Judicial record – record, official entry, or files of the proceedings in a court of justice, or of the official act of a
judicial officer, in an action, suit, or proceeding

A judgment may be used as evidence to prove its own existence and is generally used for one of four purposes:
To

1) Prove a fact collateral to the issues involved in the principal case

e.g. production of the record of conviction to impeach a witness

2) Show a course of conduct previously taken by a party to a principal case

3) Show the divestiture or acquisition of certain legal rights through the

rendition of the judgment
e.g. actions on judgments and actions involving property sold under a writ of execution

4) Show that an issue involved in the principal case was previously adjudicated
e.g. judgment of conviction or acquittal of the defendant in a criminal case may be offered under a plea
of double jeopardy by the same defendant in a subsequent prosecution of the offense charged in the
first case

 A judgment void for want of jurisdiction is open to contradiction or impeachment in a collateral

proceeding.

Collusion in judicial proceedings – agreement between two persons that the one should institute a suit against
the other, in order to obtain the decision of a judicial tribunal for some sinister purpose

 An action to annul a judgment based on fraud cannot prosper unless the fraud be extrinsic or collateral
or unless the fraud refers to the jurisdiction of the court, and that the facts constituting it have not
been in controversy nor resolved in the case wherein the judgment, whose nullity is sought, has been
obtained.

Extrinsic fraud – fraud in the means whereby the judgment was procured, and not fraud in the cause of action
or matter put in issue and present for adjudication; not appearing on the pleadings

e.g. convince the other party not to participate in the proceedings with the promise of withdrawal of the suit
but such withdrawal was not eventually made

Sec. 30. Proof of notarial documents. — Every instrument duly acknowledged or proved and certified as
provided by law, 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. (31a)

Every instrument duly acknowledged or proved and certified as provided by law:

1) May be presented in evidence without further proof

2) Certificate of acknowledgment being prima facie evidence of the execution of the instrument or
document involved

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  An affidavit with jurat is not public.

 The presentation of the original suffices.

Sec. 31. Alteration in document, how to explain. — The party producing a document as genuine which has
been altered and appears to have been altered after its execution, in a part material to the question in
dispute, must account for the alteration. He may show that the alteration was made by another, without his
concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or
innocently made, or that the alteration did not change the meaning or language of the instrument. If he fails
to do that, the document shall not be admissible in evidence. (32a)

The party producing a document as genuine which has been altered and appears to have been altered after its
execution, in a part material to the question in dispute:

1) Must account for the alteration, either as

a. Made by another, without his concurrence, or

b. Made with the consent of the parties affected by it, or
c. Properly or innocently made, or
d. Alteration did not change the meaning or language of the instrument

2) If he fails to do that, the document shall not be admissible in evidence

Alteration in an instrument – a change in the instrument by a party thereto or one entitled thereunder or one
in privity with such a person after the instrument has been signed or fully executed, without consent of the
party to it, by an erasure, interlineations, addition, or substitution of material matter affecting the:
 Identity of the instrument or contract; or
 Rights or obligations of the parties

 In order that the change may constitute an alteration in this sense, the act must be one by
which the meaning or language of the instrument is changed, but by which its identity is not
otherwise destroyed.

 The term “alteration” imports some fraud or improper design on the part of the person
entitled thereunder to change the effect of the instrument, and if the act is done by a stranger,
without privity or consent of the parties, it is ordinarily termed an “spoliation” or “mutilation”
and its legal consequences are distinguishable with respect to the parties to the instrument
from those of a technical alteration

 Therefore, one has to examine every document presented and manifest if there are alterations.

Sec. 32. Seal. — There shall be no difference between sealed and unsealed private documents insofar as their
admissibility as evidence is concerned. (33a)

 This refers to private documents.

Sec. 33. Documentary evidence in an unofficial language. — Documents written in an unofficial language
shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid

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interruption of proceedings, parties or their attorneys are directed to have such translation prepared before
trial. (34a)

Documents written in an unofficial language:

1) Shall not be admitted as evidence, unless accompanied with a translation into English or Filipino
2) Parties or their attorneys are directed to have such translation prepared before trial

C. OFFER AND OBJECTION

Sec. 34. Offer of evidence. — The court shall consider no evidence which has not been formally offered. The
purpose for which the evidence is offered must be specified. (35)

 The court shall consider no evidence which has not been formally offered.

 The judge determines if evidence is excluded: Offer – Comment

 The purpose for which the evidence is offered must be specified.

 A document or article is not evidence when it is simply marked for identification; it must be formally
offered in evidence, and the opposing counsel must have an opportunity of objecting to it or of cross-
examining any witness called to prove or identify it.

Sec. 35. When to make offer. — As regards the testimony of a witness, the offer must be made at the time
the witness is called to testify.
Documentary and object evidence shall be offered after the presentation of a party's testimonial evidence.
Such offer shall be done orally unless allowed by the court to be done in writing. (n)

When to make offer:

1) Testimony – the time the witness is called to testify; give a gist of the proposed testimony and what it
seeks to establish
2) Documentary and Object – after the presentation of a party's testimonial evidence; specify the purpose
for which they are being offered

 Offer of evidence shall be done orally unless allowed by the court to be done in writing.

Sec. 36. Objection. — Objection to evidence offered orally must be made immediately after the offer is
made.
Objection to a question propounded in the course of the oral examination of a witness shall be made as soon
as the grounds therefor shall become reasonably apparent.
An offer of evidence in writing shall be objected to within three (3) days after notice of the unless a different
period is allowed by the court.
In any case, the grounds for the objections must be specified. (36a)

When objection to evidence offered must be made:

1) Orally – immediately after the offer is made

2) In writing – within 3 days after notice of the offer, unless a different period is allowed by the court

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 The office of an objection is to stop an answer to a question put to a witness, or to prevent the
receipt of a document in evidence until the court has had opportunity to make a ruling upon its
admissibility; the objection lays the foundation for an exception to an adverse ruling by the court,
warning both court and counsel that such adverse rulings may be the basis of appellate review.

 The objection is limited to the ground or grounds specified and does not cover others not
specified. Where specific grounds are stated, the implication is that there are no others, or, if
there are others, that they are waived.

 A specific objection overruled will be effective to the extent of the grounds specified, and no
further.

 An objection to evidence cannot be made in advance of the offer of the evidence sought to be
introduced (premature objection).

 Where evidence is competent on any ground, the court may properly admit the evidence over
objection.

 A waiver as to the competency of a witness is not a waiver of the right to object to the
competency of such person’s testimony.

 Failure to object to evidence at the time it is offered is a waiver of objections to its admissibility.

 Objection to evidence cannot be raised for the first time on appeal.

 Question propounded in the course of the oral examination – as soon as the grounds therefor
shall become reasonably apparent

 Grounds for the objections should always be specified.

 Grounds for objection:

i. Hearsay
ii. Argumentative
iii. Leading
iv. Misleading
v. Immaterial
vi. Incompetent
vii. Irrelevant
viii. Vague/confusing/ambiguous/unintelligible
ix. Self-serving
x. Privileged communication
xi. Lack of foundation
xii. Lack of authentication
xiii. Question is repetitive (asked and answered)
xiv. Question asks for a speculative answer
xv. Question is a compound question
xvi. Question violates the witness’ rights under the Rules
xvii. Multiple questions
xviii. Improper impeachment

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 xix. Improper judicial notice
xx. Witness not properly qualified
xxi. Self-incrimination
xxii. Beyond the scope of the previous examination
xxiii. Opinion evidence
xxiv. Calls for a narrative
xxv. Calls for a conclusion
xxvi. Violates the best evidence rule
xxvii. Violates the parole evidence rule
xxviii. Lack of basis; assumes a fact not established

Sec. 37. When repetition of objection unnecessary. — When it becomes reasonably apparent in the course of
the examination of a witness that the question being propounded are of the same class as those to which
objection has been made, whether such objection was sustained or overruled, it shall not be necessary to
repeat the objection, it being sufficient for the adverse party to record his continuing objection to such class
of questions. (37a)

Requisites for a proper continuing objection:

1) In the course of the examination of a witness

2) Objection has been made
3) Reasonably apparent that the questions being propounded are of the same class as those to which
objection has been made
4) Adverse party records his continuing objection to such class of questions

 Where an objection to evidence is distinctly made and overruled, it need not be repeated to
the same class of evidence subsequently received, although the evidence is given by, or the
question asked of, another witness.

 The court may treat the objection as a continuing one. Instead of repeating the objection to
the same class of questions, the adverse party may records his continuing objection thereto.

 This is to highlight and put the appellate court on notice as to such objections.

 There is no need for the judge to rule.

Exceptions: Where

1) Subsequent evidence is not of the same kind

2) Question has not been answered
3) Incompetency of evidence is later shown
4) Objection refers to preliminary questions
5) Objection to evidence was sustained but re-offered at a later stage of trial
6) Evidence admitted on condition
7) Court reserves ruling on objection

Sec. 38. Ruling. — The ruling of the court must be given immediately after the objection is made, unless the
court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always
be made during the trial and at such time as will give the party against whom it is made an opportunity to
meet the situation presented by the ruling.

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The reason for sustaining or overruling an objection need not be stated. However, if the objection is based
on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground
or grounds relied upon. (38a)

The ruling of the court on an objection:

1) Must be given immediately after the objection is made

2) Unless the court desires to take a reasonable time to inform itself on the question presented; but the
ruling shall always be made
a) During the trial and
b) Such time as will give the party against whom it is made an opportunity to meet the situation
presented by the ruling

GR: The reason for sustaining or overruling an objection need not be stated.

Exception: If the objection is based on two or more grounds, a ruling sustaining the objection on one or some
of them must specify the ground or grounds relied upon.

 The parties may ask for the ground for the ruling, even if the rules do not require the judge to so state.

 The court need not rule on objections to evidence until it is offered.

 Where evidence is admitted subject to a future ruling, the objecting party must renew his objection
and secure a ruling thereon.

 Rulings should be unequivocal and so definite in character as to leave no room for doubt as to what
evidence is admitted and what is excluded.

 When an objection to a question is sustained, it means that the court declares the question improper,
and the witness ought not to answer it.

Sec. 39. Striking out answer. — Should a witness answer the question before the adverse party had the
opportunity to voice fully its objection to the same, and such objection is found to be meritorious, the court
shall sustain the objection and order the answer given to be stricken off the record.
On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or
otherwise improper. (n)

Requisites for Striking out an answer:

1) Witness answers the question before the adverse party had the opportunity to voice fully its objection
2) Objection is found to be meritorious
3) Court order that the answer given to be stricken off the record

 On proper motion, the court may also order the striking out of answers which are
incompetent, irrelevant, or otherwise improper.

 This is to remove it and that it should not appear on record.

 Ideally, an objection must be interposed as soon as the grounds therefor become evident.
However, it usually happens that despite the alertness of the counsel, a witness answers the

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 question with alacrity (eagerness) before the adverse party has had the opportunity to voice
fully his objection. In that case, the court shall sustain the objection, if it finds the same to be
meritorious, and shall order the striking out if such answer.

 A motion to strike out evidence is properly denied if it is not sufficiently definite. Where only a
part of the evidence is admissible, a general motion to strike out without specifying the
particular part objected to must be denied.

 A motion to strike out evidence should be acted upon seasonably.

Sec. 40. Tender of excluded evidence. — If documents or things offered in evidence are excluded by the
court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral,
the offeror may state for the record the name and other personal circumstances of the witness and the
substance of the proposed testimony. (n)

 Where the court refuses to permit the counsel to present testimony which he thinks is
competent, material and necessary to prove his case, the method of properly preserving the record to
the end that the question may be saved for the purposes of review, is through the making of an offer of
proof (tender of excluded evidence).

 When witness is not allowed to testify, the offeror may state the circumstances, purpose
and substance of the testimony.

 Where evidence is inadmissible when offered and excluded, but thereafter becomes
admissible, it must be re-offered, unless the court indicates that a second offer would be useless.

 A re-offer of proof once ruled out by the court must be timely made. An offer of proof is
made at the proper time when objection is made to the question put to the witness, and the court has
sustained the objection.

If documents or things offered in evidence are excluded by the court, the offeror may:

1) Have the same attached to or made part of the record, if the evidence is object or documentary
2) If the evidence excluded is oral, the offeror may state for the record:
a) Name and other personal circumstances of the witness and
b) Substance of the proposed testimony

 The object is described and is eventually deposited with the court. The same should be properly
received to avoid getting misplaced.

RULE 133

Weight and Sufficiency of Evidence

SECTION 1. Preponderance of evidence, how determined. — In civil cases, the party having burden of
proof must establish his case by a preponderance of evidence. In determining where the preponderance or
superior weight of evidence on the issues involved lies, the court may consider all the facts and
circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which there are testifying, the nature of the facts to which they testify,
the probability or improbability of their testimony, their interest or want of interest, and also their personal

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credibility so far as the same may legitimately appear upon the trial. The court may also consider the
number of witnesses, though the preponderance is not necessarily with the greater number. (1a)

 Proof is confined to the issues raised in the pleadings. The weight of evidence is not a question of
mathematics, but depends on its effect in inducing belief, under all of the facts and circumstances.

 In civil cases, the party having the burden of proof must establish his case by a preponderance of
evidence. Stated differently, the general rule in civil cases is that the party having the burden of proof
of an essential fact must produce a preponderance of evidence thereon.

In determining where the preponderance or superior weight of evidence on the issues involved lies, the court
may consider:

1) All the facts and circumstances of the case

2) Witnesses' manner of testifying

3) Intelligence

4) Means and opportunity of knowing the facts to which they are testifying

Observation:
a) Opportunities for observation
b) Capacity for observation
c) Attention as a condition of correct observation
d) Interest as a condition of observation
e) Particular circumstances affecting the power of observation:
i. Interest
ii. Conversation diverting attention
iii. Fear, horror or excitement
iv. Observation of ignorant persons
v. Intoxication

Memory:
a) Memory in general
b) Questions about the memory of witnesses that usually arise in the trial of the case
c) The “Actor Rule”
d) Particular circumstances affecting memory
e) Memory of person making dying declarations
f) Recently or remoteness of facts
g) Effect of prior contradictory statements when memory was presumptively better
h) Memory of important or trivial facts
i) Striking incidence in transaction or event
j) Matters inherently difficult to recollect
k) Memory of events attended by excitement or commotions or inspiring fear
l) Memory of rapid succession and of order and sequence of events
m) Memory deceived by leading questions
n) Memory of biased witnesses
o) Memory revived by association of ideas
p) Memory refreshed by memorandum

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 q) Memory of dates
r) Fixing dates by collateral facts
s) Memory of time of day
t) Estimates of periods of time
u) Collateral facts constituting indicia of time
v) Estimates of time by biased witnesses
w) Influences affecting estimates of time
x) Memory of oral statements, conversations, etc.
y) Whose memory of conversation is best?
z) Memory of dead man’s statements
i. Oral promises in relation to statute of frauds
ii. Attorneys testifying to oral stipulations or admissions

5) Nature of the facts to which they testify

a) Dates
b) Time of day
c) Oral statements

6) Probability or improbability of their testimony

Probability means consonance to reason.

Improbabilities are provable. An improbable fact properly verified is not to be rejected because of such
improbability.

a) Testimony inherently improbable

b) Testimony contrary to natural laws
c) Testimony contrary to the natural course of things
d) Mathematical impossibilities
e) Incredible coincidences
f) Acts opposed to common sense
g) Testimony contrary to common observation and experience
h) Improbability of improvident business transactions
i) Important contracts made without written evidence improbable
j) Payments without taking receipt

7) Interest or want of interest

Generally, the interest of a witness, as affecting his credibility, signifies the specific inclination which is
apt to be produced by the relation between the witnesses and the facts at issue in the litigation, and
connotes or implies concern for the advantage or disadvantage of the parties to the cause.

Biased witness – one who has a motive to color his statements, to suppress the truth, or to state what
is false.

Bias – that which excites a disposition to see and report matters as they are wished for rather than as
they are
- as applied to a witness, it is the leaning of the mind, a mental prejudice or predilection

Bias of a witness goes only to his credibility, and is not a reason for exclusion of his testimony.

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 Interested witness – may be a party to an action or a person directly interested in the event of a trial,
assuming that he is competent to testify

8) Personal credibility so far as the same may legitimately appear upon the trial.

Credibility of a witness – their disposition and intention to tell the truth in the testimony they have
given

Personal credibility – as applied to a witness, means that which would lead a court to believe or
disbelieve what the witness has said by reason of his appearance and manner before them while
testifying

9) Number of witnesses, though the preponderance is not necessarily with the greater number.

Preponderance of evidence does not consist merely in the greater numerical array of witnesses, but
means the weight, credit, and the value of the aggregate evidence on either side.

In case of conflicting testimonies, the numerical factor may be given certain weight.

A cause of action on the ground of reformation of instrument must be proven by clear and convincing
evidence.

Rules for weighing evidence:

1) The axiomatic rule: Evidence which is justly open to criticism derogating from its trustworthiness is
inferior in weight to opposing evidence free from perceptible defects.
2) The “admitted facts” rule: Evidence of whatever description must yield to the extent that it conflicts
with admitted or clearly established facts,
3) Written evidence superior to oral
4) Positive testimony superior to negative

Rules of construction of testimony:

1) Testimony must be considered as a whole, and the true meaning of answers to isolated questions is to
be ascertained by due consideration of all the questions propounded to the witness and his answers
thereto.
2) Courts must subordinate the literal terms used by a witness to the substance and effect of his
testimony.
3) The language of a witness must be construed in its ordinary sense, and that meaning given to it which
he evidently intended to convey.
4) If the meaning intended by the witness cannot safely be ascertained, his testimony should be taken to
its natural import and meaning.
5) Where the question put to a witness is long and contains more than one point, the common habit of
witness to answer only the last point mentioned in the question, should be taken into consideration in
the construction of his testimony.
6) Technical meaning of words is not necessarily controlling.
7) When the testimony of a party is self-contradictory, the courts are fully justified in taking against him
that version of his testimony which is most unfavorable to him.

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 8) Where proof as well as pleading is of a doubtful or equivocal character, it must be construed least
favorably to the party offering it.
9) Where testimony is ambiguous, and there is doubt as to its correct application to the facts in question,
the promotion of truth and justice to the witnesses require that construction which will render it as
consistent as possible with the opposing evidence.
10) Where a question addressed to a party by his own counsel is a composite one, and the witness replies
No, it can hardly be considered as a categorical denial of an individual query.
11) Reading the typewritten report of the testimony as taken by a stenographer, the court may well be
satisfied that the stenographer made a mistake, and what the witness actually said may sufficiently
appear from the context.

Conflicting testimony must be reconciled, if it can reasonably be done.

Sec. 2. Proof beyond reasonable doubt. — In a criminal case, the accused is entitled to an acquittal, unless
his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of
proof, excluding possibility of error, produces absolute certainly. Moral certainly only is required, or that
degree of proof which produces conviction in an unprejudiced mind. (2a)

 In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable
doubt.

Proof beyond reasonable doubt:

1) Does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty
2) Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced
mind

Moral certainty – a certainty that convinces and directs the understanding and satisfies the reason and
judgment of those who are bound to act conscientiously upon it

Presumption of Innocence Reasonable Doubt

Conclusion drawn by law in favor
of a citizen
Evidence introduced by law to be
considered by the court
Condition of the mind produced
by proof resulting from evidence
in the case
Result of insufficient proof

 A defense of self-defense must be proven by clear and convincing evidence. Accused must rely
on the strength of his own evidence and not on the weakness of that of the prosecution.
 Alibi must be proved by positive, clear and satisfactory evidence. To establish an alibi,
defendant must not only show that he was present at some other place about the time of the
alleged crime, but also that he was at such other place for so long a time, that it was
impossible for him to have been at the place where the crime was committed, either before or
after the time he was at such other place. As a rule, alibi is a weak defense and cannot prevail
over the positive testimony of truthful witnesses.

Sec. 3. Extrajudicial confession, not sufficient ground for conviction. — An extrajudicial confession made by
an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti.
(3)

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  An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless
corroborated by evidence of corpus delicti.

 The rule does not mean that all the elements of the crime must be clearly established by evidence
independent of that confession. It only means that there should be some evidence tending to show the
commission of the crime apart from the confession.

 Corpus delicti must be proved by evidence other than the accused’s confession to guard against
convictions upon false confessions of guilt.

 Proof of the locus of the crime is not necessary in order to establish the corpus delicti.

 It is sufficient ground for conviction when the prima facie proof of corpus delicti and the confession,
taken together, show the accused’s guilt beyond reasonable doubt.

Corpus delicti – “the body of the offense, the substance of the crime”
- defined in its primary sense as the fact that a crime actually has been committed
- as applied to a particular offense, means the actual commission by someone of the particular crime
charged

homicide: fact of death and the criminal agency of another person as the cause thereof
embezzlement: agency, control, ownership and conversion of principal’s money
theft: taking of the property without the consent of the owner

 Elements of corpus delicti: existence of a certain act of result forming the basis of the criminal charge,
as the occurrence of injury or loss; and the existence of a criminal agency as the cause of this act or
result

1) Certain result has been produced  end result of an act

e.g. death

2) Some person is criminally responsible for the act  fact that the end result was produced by a
criminal act
e.g. shooting caused such death

Sec. 4. Circumstantial evidence, when sufficient. — Circumstantial evidence is sufficient for conviction if:
(a) There is more than one circumstances;
(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. (5)

Circumstantial evidence is sufficient for conviction if:

1) There is more than one circumstance

 It is more like a rope composed of several cords.

2) The facts from which the inferences are derived are proven, and
 The circumstances are not themselves presumed.

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  An inference cannot be based on another inference. The facts upon which the inference may
legitimately rest must be established by direct evidence, and to the same degree as the main
fact.

3) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt
 In criminal prosecutions, a resort to circumstantial evidence is, in the very nature of things, a
necessity.
 Direct proof is not essential to establish conspiracy.

 All the circumstances must be consistent with each other, consistent with the
hypothesis that the accused is guilty, and at the same time, inconsistent with the
hypothesis that he is innocent, and with every other rational hypothesis except that of
guilt.

Circumstantial evidence – that which relates to a series of other facts than that fact in issue, which by
experience have been found so associated with that fact that in the relation of cause and effect, they lead to a
satisfactory conclusion
- consists of proof of collateral facts and circumstances from which the existence of the main fact may be
inferred according to reason and common experience
- evidence which tends to establish the fact to be proved through inference based on human experience
that that fact exists when a certain circumstance or set of circumstances is present
- sometimes referred to as indirect or presumptive evidence

Circumstantial Evidence Direct Evidence

Evidence which, without going Evidence which, if believed,
directly to prove the existence of a proved the existence of the fact in
fact, gives rise to a logical issue without any inference or
inference that such fact does exist presumption
Given of facts and circumstances Witnesses testify directly of their
from which the court may infer own knowledge as to the main
other connected facts which facts to be proved
reasonably follow, according to
the common experience of
mankind
Equally direct evidence of a minor Intended evidence which applies
fact or facts of such a nature that directly to the fact which forms
the mind is led intuitively, or by a the subject of inquiry, the factum
conscious process of reasoning, probandum
towards or to the conviction that
from it or them some other fact
may be inferred
Identical nature

Sec. 5. Substantial evidence. — In cases filed before administrative or quasi-judicial bodies, a fact may be
deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a conclusion. (n)

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

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  Applicable in the following:
o Private employee’s violation of company rules
o NLRC

 Not applicable in the following:

o Ombudsman – probable cause
o Sandiganbayan – beyond reasonable doubt

Substantial evidence – that amount of relevant evidence which a reasonable mind might accept as adequate to
justify a conclusion; lower than preponderance
- more than a mere scintilla
- does not necessarily import preponderant evidence as required in an ordinary civil case
- means such evidence which affords a substantial basis from which the fact in issue can be reasonably
inferred

Sec. 6. Power of the court to stop further evidence. — The court may stop the introduction of further
testimony upon any particular point when the evidence upon it is already so full that more witnesses to the
same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised
with caution. (6)

 The trial court may, in its discretion, restrict the number of witnesses to establish a particular fact, at
least where the fact is sufficiently established and is not controverted.

 The discretion must be an actual and judicial discretion, exercised in view of the special character and
circumstances of the particular case.

 When the fact in issue is collateral to the main issue, the court may, in its discretion, limit the number
of witnesses.

 The number of witnesses to give opinion evidence may also be limited.

 Whether further evidence will be allowed after a party offering the evidence has rested his case lies
within the discretion of the trial judge, and this discretion will not be reviewed except in clear case of
abuse.

Sec. 7. Evidence on motion. — When a motion is based on facts not appearing of record the court may hear
the matter on affidavits or depositions presented by the respective parties, but the court may direct that the
matter be heard wholly or partly on oral testimony or depositions. (7)

When a motion is based on facts not appearing of record:

1) Court may hear the matter on affidavits or depositions presented by the respective parties
2) But the court may direct that the matter be heard wholly or partly on oral testimony or depositions

Affidavit Deposition
Always taken ex parte Opposite party has an opportunity
to cross-examine the witness

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  This refers to facts put in issue in a motion, and not to facts alleged in the pleadings. Such facts alleged
in a motion may be proved by affidavits and depositions, but the court, in its discretion, may order that
oral testimony be presented before it; or before a commissioner appointed in accordance with R32 S2
(c): Reference to a commissioner ordered on motion when a question of fact, other than upon the
pleading, arises upon motion or otherwise, in any stage of a case, or for carrying a judgment or order
into effect.

RULE 134

Perpetuation of Testimony

[NOTE: This rule will be transposed to Part 1 of the Rules of Court on Deposition and Discovery]

The Rules of Court contemplates three (3) different situations for the taking of depositions:

1) Depositions taken pending an action

2) Depositions taken pending an appeal
3) Depositions taken in contemplation of a forthcoming action

The last 2 kinds are designated as perpetuation of testimony.

Kinds of petitions to perpetuate testimony:

1) To perpetuate the testimony or examine the witnesses in perpetuam rei memoriam

2) To examine witnesses de bene esse, which is commonly brought after the commencement of a suit by a
person out of possession to perpetuate testimony which is in danger of being lost before the matter to
which it relates can be examined into by the proper tribunal

 The perpetuation of testimony may not be used for framing or drafting of a complaint, but only
for the purpose of preserving known testimony against danger of loss.

 Perpetuation of testimony before action should be limited to the taking of depositions and may
not properly include inspection, survey and photographing of property.

SECTION 1. Petition. — A person who desires to perpetuate his own testimony or that of another person
regarding any matter that may be cognizable in any court of the Philippines, any file a verified petition in the
court of the province of the residence of any expected adverse party.

Sec. 2. Contents of petition. — The petition shall be entitled in the name of the petitioner and shall show:
(a) that the petitioner expects to be a party to an action in a court of the Philippines by is presently unable to
bring it or cause it to be brought; (b) the subject matter of the expected action and his interest therein; (c)
the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate
it; (d) the names or a description of the persons he expects will be adverse parties and their addresses so far
as known; and (e) the names and addresses of the persons to be examined and the substance of the
testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take
the depositions of the persons to be examined named in the petition for the purpose of perpetuating their
testimony.

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Material allegations of petition:

1) Expectancy of action
2) Subject matter of the expected action and petitioner’s interest therein
3) Facts which petitioner desires to establish by the proposed testimony and his reasons thereof
4) Names of expected adverse parties and their addresses so far as known
5) Identity of persons to be examined and substance or nature of their expected testimony
6) Prayer for relief

 A petition for perpetuation of testimony should show plainly that the court would have
jurisdiction of the contemplated action, in aid of which the testimony is to be contemplated.

 An affidavit setting forth the facts indicating the danger of the loss of the testimony is
necessary, either as part of the petition itself or as supplementary thereto.

Sec. 3. Notice and service. — The petitioner shall thereafter serve a notice upon each person named in the
petition as an expected adverse party, together with a copy of a petition, stating that the petitioner will
apply to the court, at a time and place named therein, for the order described in the petition. At least twenty
(20) days before the date of hearing the notice shall be served in the manner provided for service of
summons.

 A proceeding to perpetuate testimony cannot be ex parte. It requires the filing of a petition and the
service of process in the usual manner upon the defendants interested. The adverse party must be
given an opportunity to be heard but the hearing must be confined to the issues involved therein.

 Notice shall be served in the manner provided under R14 and the time of the serving of the notice
must be at least twenty (20) days before the date of the hearing of the petition.

Sec. 4. Order of examination. — If the court is satisfied that the perpetuation of the testimony may prevent
a failure or delay of justice, it shall make an order designating or describing the persons whose deposition
may be taken and specifying the subject matter of the examination, and whether the depositions shall be
taken upon oral examination or written interrogatories. The depositions may then be taken in accordance
with Rule 24 before the hearing.

 The court must determine whether the necessity for entertaining the petition exists. The right to
perpetuate testimony does not depend on the condition of the witness, but upon the situation of the
party (petitioner), and his power to bring his rights to an immediate investigation.

 The rules provide for either oral or written examination for discovery or deposition and for
perpetuation of testimony. If the deposition is taken pending action, the interrogating party may
normally select the mode of examination he prefers, but in perpetuating testimony, the choice is
apparently with the court.

Sec. 5. Reference to court. — For the purpose of applying Rule 24 to depositions for perpetuating testimony,
each reference therein to the court in which the action is pending shall be deemed to refer to the court in
which the petition for such deposition was filed.

 Since in perpetuation of testimony there is no action pending in court, the court in which the petition
for perpetuation of testimony has been filed may designate the officer before whom the perpetuation
of testimony shall be taken upon oral examination or written interrogatories.

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Sec. 6. Use of deposition. — If a deposition to perpetuate testimony is taken under this rule, or if, although
not so taken, it would be admissible in evidence, it may be used in any action involving the same subject
matter subsequently brought in accordance with the provisions of Sections 4 and 5 of Rule 24.

 The deposition to perpetuate testimony may be used in any action involving the same subject matter
subsequently brought, and in the same manner as deposition taken pending action in accordance with
R24 S4 and S5.

 Where an expected adverse party is duly notified of the petition proceeding, but not of the taking of a
deposition, the deposition may not be used against him in a subsequent action, although involving the
same subject matter.

 Where an expected adverse party is duly notified only of the taking of the deposition, and not of the
petition proceeding, the deposition may not be used against him in a subsequent action, unless he
participates in the taking of the deposition and such participation can be construed as a waiver of
notice of the petition for perpetuating testimony.

 The perpetuation of testimony in itself does not prove the existence of any right. By reason of its very
nature, it can refer to nothing but facts, if consisting only of the mere declarations of witnesses.

 The testimony thus perpetuated is not in itself conclusive proof, either of the existence of any right nor
even of the facts to which they relate, as it can be controverted at the trial in the same manner as
though no perpetuation of testimony was ever had.

Sec. 7. Depositions pending appeal. — If an appeal has been taken from a judgment of the Regional Trial
Court or before the taking of an appeal if the time therefor has not expired, the Regional Trial Court in which
the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony
for use in the event of further proceedings in the said court. In such case the party who desires to perpetuate
the testimony may make a motion in the said Regional Trial Court for leave to take the depositions, upon the
same notice and service thereof as if the action was pending therein. The motion shall show (a) the name
and the addresses of the persons to be examined and the substance of the testimony which he expects to
elicit from each; and (b) the reason for perpetuating their testimony. If the court finds that the perpetuation
of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the
depositions to be taken, and thereupon the depositions may be taken and used in the same manner and
under the same conditions as are prescribed in these rules for depositions taken in actions pending in the
Regional Trial Court. (7a)

The deposition referred to in this rule may be taken:

1) If an appeal has been taken from a judgment of a Regional Trial Court, or

2) Before the taking of an appeal if the time therefor has not expired

 The hearing on the motion for leave to perpetuate testimony pending appeal or after judgment
and before the expiration of the time for taking an appeal is summary, similar to the hearing of
any motion and would ordinarily be heard on affidavits.

RULE 24

Depositions Before Action or Pending Appeal

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 Before action Pending appeal
How Instituted
Verified petition in court with Motion for leave to take
jurisdiction over residence of deposition; Indicate substance of
adverse party to perpetuate testimony and reason for
testimony. Indicate substance of perpetuating
testimony and reason for
perpetuating

General procedure for depositions before action:

1) Petition filed by a party who expects to be a party in an action in the court of the residence of the
expected adverse party
2) Notice of the petition served on expected adverse party
3) Court serves notice of hearing, at least 20 days before, to
a) Parties and
b) Prospective deponents
4) Court order
a) Designating or describing the persons whose deposition may be taken and
b) Specifying the subject matter of the examination and
c) Specifying whether the depositions shall be taken upon oral examination or written interrogatories.
5) Deposition taken would be admissible in evidence, it may be used in any action involving the same
subject matter subsequently brought

Section 1. Depositions before action; petition. — A person who desires to perpetuate his own testimony
or that of another person regarding any matter that may be cognizable in any court of the Philippines, may
file a verified petition in the court of the place of the residence of any expected adverse party. (1a, R134)
Venue of petition for depositions before action: court of the residence of any expected adverse party

Sec. 2. Contents of petition. — The petition shall be entitled in the name of the petitioner and shall show:
(a) that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable
to bring it or cause it to be brought; (b) the subject matter of the expected action and his interest therein; (c)
the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate
it; (d) the names or a description of the persons he expects will be adverse parties and their addresses so far
as known; and (e) the names and addresses of the persons to be examined and the substance of the
testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take
the depositions of the persons to be examined named in the petition for the purpose of perpetuating their
testimony. (2, R134)
Contents of petition for deposition before action:
1) Entitled in the name of petitioner
2) That the petitioner expects to be a party to an action in a court of the Philippines but is presently
unable to

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 a) Bring it or
b) Cause it to be brought
3) Subject matter of the expected action and his interest therein
4) Facts which he desires to establish by the proposed testimony and his reasons for desiring to
perpetuate it
5) Names or a description of the persons he expects will be adverse parties and their addresses so far as
known
6) Names and addresses of the persons to be examined and the substance of the testimony which he
expects to elicit from each
7) Ask for an order authorizing the petitioner to take the depositions of the persons named to perpetuate
their testimony

Sec. 3. Notice and service. — The petitioner shall serve a notice upon each person named in the petition
as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to
the court, at a time and place named therein, for the order described in the petition. At least twenty (20)
days before the date of the hearing, the court shall cause notice thereof to be served on the parties and
prospective deponents in the manner provided for service of summons. (3a, R134)
Sec. 4. Order and examination. — If the court is satisfied that the perpetuation of the testimony may
prevent a failure or delay of justice, it shall make an order designating or describing the persons whose
deposition may be taken and specifying the subject matter of the examination and whether the depositions
shall be taken upon oral examination or written interrogatories. The depositions may then be taken in
accordance with Rule 23 before the hearing. (4a, R134)
Sec. 5. Reference to court. — For the purpose of applying Rule 23 to depositions for perpetuating
testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the
court in which the petition for such deposition was filed. (5a, R134).
Sec. 6. Use of deposition. — If a deposition to perpetuate testimony is taken under this Rule, or if,
although not so taken, it would be admissible in evidence, it may be used in any action involving the same
subject matter subsequently brought in accordance with the provisions of sections 4 and 5 of Rule 23. (6a,
R134)
Sec. 7. Depositions pending appeal. — If an appeal has been taken from a judgment of a court, including
the Court of Appeals in proper cases, or before the taking of an appeal if the time therefor has not expired,
the court in which the judgment was rendered may allow the taking of depositions of witnesses to
perpetuate their testimony for use in the event of further proceedings in the said court. In such case the
party who desires to perpetuate the testimony may make a motion in the said court for leave to take the
depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall
state (a) the names and addresses of the persons to be examined and the substance of the testimony which
he expects to elicit from each; and (b) the reason for perpetuating their testimony. If the court finds that the
perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing
the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and
under the same conditions as are prescribed in these Rules for depositions taken in pending actions. (7a,
R134)
General procedure for depositions pending appeal:
1) Either
a) Appeal has been taken from a judgment of a court (including CA), or

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 b) Before the taking of an appeal if the appeal period has not expired
2) Party moves for leave to take deposition pending appeal
3) Motion shall state
a) Names and addresses of the persons to be examined and the substance of the testimony which
he expects to elicit from each; and
b) Reason for perpetuating their testimony
4) Service of notice of hearing on the motion
5) Court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice
6) Court order allowing the depositions to be taken and used as in depositions pending actions

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