Joint Circular No.1s.2016 - Dbm-Doh - Amendment To Dbm-Doh Joint Circular No. 1 S. 2012

Evidence and Trial Technique Page 1 of 36
(Atty. Lionell Macababbad)
Rule 128
Q. What is evidence?
Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth
respecting a matter of fact. (Sec. 1, Rule 128)
Evidence - which is “the mode and manner of proving the competent facts and circumstances on
which a party relies to establish the fact in dispute in judicial proceedings"-is identified with and
forms part of the method by which, in private law, rights are enforced and redress obtained, and,
in criminal law, a law transgressor is punished. [Bustos vs. Lucero, 81 Phil. 640(1948)]
Q. What is the purpose of Evidence? To ascertain the truth—not really the actual truth, but only the
“LEGAL” truth
Q. What is the nature of the rules on Evidence? It is a PROCEDURAL LAW.
Q. How should the rules on Evidence be construed?

It must be applied liberally. Procedural Rules must be liberally interpreted and applied so as not to
frustrate substantial justice.
Q. What is the difference between evidence and proof?

Evidence is the FACTUAL MATTER while proof is the RESULT or EFFECT OF EVIDENCE. When the requisite
quantum of evidence of a particular fact has been duly admitted and given weight, the result is called
the proof of such fact.
Evidence –the ultimate fact that you want to establish (criminal case); ultimate fact alleged in the
complaint (civil case)
Proof—the result of evidence
Q. In a case involving a shabu case (Sale of Dangerous Drugs; violation of Dangerous Drugs Act), what
is the Evidence (ultimate fact) and what is the Proof?
Fact of Sale (Fact that a sale was made and consummated) = Evidence (ultimate fact)
Shabu (drugs itself) = Proof
Q. X obtained a loan from Y. In this situation, what is the Evidence and what is the Proof?
Fact of obtaining a loan = Evidence
Promissory Note = Proof
Q. Supposed Y filed a collection suit against X. What is the Evidence and what is the Proof?
Fact of default (the fact that X was in default of payment) = Evidence
Date = Proof of maturity of the loan and proof of non-payment
Arellano University School of Law || 2nd semester 2014 - 2015 Alcazar, Aguirre, Oliva
Q. Who has the burden of proving evidence?

Proponent = has the burden of proving evidence
Opponent = has the burden of excluding evidence
Q. What is the scope of Law on Evidence?

1. Prescribes the manner of presenting evidence
2. Fixes the qualification and privilege of witness and ode of examining them
3. Determines among the probative matters/things which are logically and in their nature
evidential, and what classes of things shall not be received.
Q. What is the principle of uniformity on the rules of evidence?

Section 2 states that 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.
Atty. Macababbad emphasized that: Section 2 did not mentioned that is should be the same in ALL
CASES.
Q. Sec. 2 (Principle of Uniformity) mentions that Rules on Evidence is the same in all COURTS. Then
why is the Rules on Evidence in MTC (which is the Rules on Summary Procedure) NOT applicable in
RTC?
Sec. 2 did not mention that the Rules on Evidence be the same in all CASES. Sec. 2 merely states that the
Rules on Evidence shall be the same in all COURTS.
Q. Can the rules of evidence be waived?

GR: Yes. The rules on evidence is merely procedural and therefore, can be waived.
XPN: When contrary to rules, morals, public policy, etc…
(eg.) Failure to Object = this is considered as a WAIVER. But is this contrary to rules, morals, public
policy, etc?
If it is done with bad faith = YES
If without bad faith = NO
Q. What are the kinds of Evidence?

1. Object
2. Documentary
3. Testimonial
N.B. Additional kinds of evidence: Electronic and Forensic Evidence
Q. What are the different quantum of evidence?

1. Criminal Cases- proof beyond reasonable doubt means the degree of proof, which, excluding
the possibility of error, produces moral certainty. If the inculpatory facts are capable of two or
more explanations, one of which is consistent with the innocence of the accused and the other
consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not
sufficient to support a conviction.
2. Civil Cases- Preponderance of evidence means that the weight, credit and value of the
aggregate evidenced of one is superior to the other
3. Administrative- Substantive evidence, the amount of relevant evidence which a reasonable
mind might accept as adequate to justify a conclusion.
Q. What are the requirements of admissibility of evidence? (The 2 components for admissibility)
1. Relevancy- it must be relevant to the issue. Evidence is relevant if it may establish directly or
indirectly the existence or non-existence of the facts in issue.
To be considered as “relevant”, evidence must be:
Material = directly established the point in issue; and
Probative = it has weight/credibility
2. Competency- if it is not excluded by the Rules on Evidence, the law and the constitution. Evidence is
competent if it is not excluded by any rule of law for the purpose for which it is offered.
Examples of Laws that excludes certain types of Evidence:
Bank Secrecy Law
Law on Unlawful Search and seizure
Q. Differentiate “Admissibility” and “Credibility” (or “weight”) of the Evidence

Atty. Macababbad emphasized that: As admissibility of evidence is determined by its relevance and
competence, admissibility is, therefore, an affair of logic and law. On the other hand, the weight to be
given such evidence, once admitted, depends on judicial evaluation within the guidelines set by the rules
and decisional rules of the Supreme Court. Thus, while evidence may be admissible, it may be entitled to
little or no weight at all.
Diagram of Classifications of Evidence
Q. When is admissibility of evidence presented?

At the time the evidence is offered in court
Testimonial evidence = when “formally offered”
Object evidence = after presentation of Testimonial evidence
Q. What are the Doctrines of Admissibility?

1. Multiple Admissibility
2. Conditional Admissibility = admissibility depends upon another evidence
(eg) Witness was not the one who executed/signed the document or Witness was not the one who took
the picture presented as evidence
You should object. The Evidence presented is INADMISSIBLE on the ground that the witness is
incompetent.
What is therefore the remedy?
Invoke the Doctrine of Conditional Admissibility. State that you will present the real person who
took the picture or signed the document later on in the course of the proceedings.
3. Curative Admissibility
Q. What is the Rule on Multiple admissibility?

The evidence is admissible for two or more purposes. Evidence will be received if it satisfies all the
requirements prescribed by law in order that it may be admissible for the purpose for which it is
presented, even if it does not satisfy the other requisites for its admissibility for other purposes.
Q. What is the Rule on Limited Admissibility? Where evidence is admissible for one purpose, it is not
rendered inadmissible solely because it is improper or irrelevant for some other purpose.
Q. What is curative admissibility?

Improper evidence was admitted on one side without objection, does not give the other side the right to
introduce in reply the same kind of evidence if objected to; however, when a plain and unfair prejudice
would otherwise inure to the opponent, the court may permit him to use a curative counter-evidence to
contradict the improper evidence presented.
Atty. Macababbad emphasized that: when the court allows ADMISSION of INADMISSIBLE evidence, the
other party will also be allowed to present INADMISSSIBLE evidence.
Q. What is conditional admissibility?

Atty. Macababbad emphasized that: The admissibility of evidence is dependent on evidence. Hence,
such will be temporarily admitted. But where the evidence to which the temporarily admitted evidence
is dependent upon is not presented on the next hearing, the evidence already given shall be stricken out
record.
Q. Distinguish admissibility and weight

Evidence is admissible if it complies with the requirements of relevancy and competency while weight is
the probative value which is determined by the court.
Q. Distinguish admissibility and credibility

Evidence is admissible if it relevant to the issue and is not excluded by law or these rules. Credibility on
the other hand, depends on the evaluation given on evidence by the court in accordance with the
guidelines provided in Rule 133 of the Rules of court and the doctrines laid down by the Supreme Court.
Q. What is exclusionary rule?

A judicial created remedy which provides that evidence obtained in violation of defendant’s
constitutional rights must be suppressed from the government’s case in chief.
Q. What are the rights protected by the exclusionary rule?

1. Right against unreasonable searches and seizure
2. Right to privacy and inviolability of communication
3. Rights against investigation for an offense
4. Right against self-incrimination
Q. When objection to admissibility of evidence should be made?

Admissibility of evidence is determined at the time it is offered to the court (Rule.35, Rule 132). Thus,
every objection to the admissibility of evidence shall be made at the time such evidence is offered, or
soon thereafter as the objection to its admissibility shall become apparent, otherwise the objection shall
be considered waived.
Q. Are collateral matters admissible?

GR: Collateral matters are not admissible
XPN: When it tends to prove in any reasonable degree to establish the probability and improbability of
the facts in issue.
RULE 129
Q. What is judicial notice?

Judicial notice cognizance of certain facts which judges may properly take and act on without proof
because they are already known to him. It is based upon convenience and expediency.
Q. How can judicial notice abbreviate litigation?

There are 2 kinds of judicial notice: 1.) Mandatory; and 2.) Discretionary
In Mandatory judicial notice, there is no need to set for hearing but in Discretionary, there is a need to
set for hearing.
Q. Is judicial NOTICE the same as judicial KNOWLEDGE? No. Judicial Knowledge is still subject to
determination of the court.
Q. When judicial notice is mandatory?

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. (Section 1, Rule 129)
Q. When judicial notice is discretionary?

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. (Section 2, Rule 129)
Q. What is the test of notoriety and range of its application?

The test of notoriety determines whether or not the fact involve is so notoriously known as to make it
proper to assume its existence without proof.
It is applicable to the Laws of the land and foreign laws. The latter must be alleged and proved unless
the doctrine of processual presumption will apply, except foreign statute accepted by the government is
subject to judicial notice.
Atty. Macababbad emphasized that: SECTIONS 1&2 of RULE 129 HEARING IS NOT NECESSARY, unless
taking of notice is REQUIRED by the statute or rule the court has some DISCRETION whether to take
judicial notice or not.
Q. When judicial notice is necessary?

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. (Section 3, Rule 129)
Atty. Macababbad emphasized that: HEARING IS NECESSARY to afford reasonable opportunity to
present evidence.
Q. What is judicial admission?

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. (Section 4,
Rule 129)
Q. Is the effect of judicial admission the same as the effect of judicial notice?
Yes. Both have the same effect—the party is relieved from the burden of presenting evidence.
Q. As a general rule: A judicially admitted fact need not be proved. Are there any exceptions?
(Last paragraph of Sec 4)
1. Palpable mistake
2. No such admission made
Q. In amended complaints, once amendment of complaint is complete, facts alleged therein are no
longer considered. What is the remedy? [Case: Director of Lands v. CA]
Formally offer the complaint as evidence.
Q. Can unsigned manifestation be considered as judicial admission? [People v. Hermanes]

Generally, No. It is not admissible.
Exception: If it is signed by the lawyer, then it becomes binding.
Q. How is Section 4 of Rule 129 related to Section 8, Rule 8?

Atty. Macababbad emphasized that: They produce the same effect; BOTH ARE DEEMED ADMITTED.
The former cannot be contradicted by the admitter who is the party himself and binds the person who
makes the same, and absent any showing that this was made thru palpable mistake, no amount of
rationalization can offset it. The latter, where the defense in the Answer is based on an actionable
document, a Reply specifically denying it under oath must be made; otherwise, the genuineness and due
execution of the document will be deemed admitted.
Q. What are the effects of failure to verify under Section 8, Rule 8? MEMORIZE!
1. The party whose signature it bears admits the he signs it;
2. That it was signed by another for him with his authority;
3. At the time it was signed it was in words and figures exactly as set out in the pleading and the
other party relied upon it;
4. That the document was delivered; and
5. That the formal requisites of law such as seal, acknowledgement, and revenue stamp which it
lacks are waived by him.
Rule 130
Q. What are the Kinds of Evidence?

1. Object
2. Documentary
3. Testamentary
Q. What is object evidence?

Evidence which is addressed to the senses of the court. (Sec. 1, Rule 130
Q. What are the two kinds of object evidence?

 Demonstrative object evidence – imparted to the senses of the court with the aid of
testimony of witnesses.
 Real object evidence - imparted to the senses of the court without aid of any testimony;
actual method or means used in the commission of the crime. (The thing speaks for itself “res
ipsa loquitor”)
Between these 2 kinds of object evidence, which has more probative value?
Real Object Evidence has more probative value. Demonstrative Object Evidence has no probative value
but merely TESTAMENTARY, but it is still admissible.
Q. Can the court refuse admission of object evidence and rely solely on documentary and
testamentary evidence?
Yes. However, it is restricted in only four instances.
1) The presentation is against public policy
2) To allow it to be viewed in court would cause delay, would be time-consuming and would cost
more than the evidentiary value
3) When the documentary/testamentary evidence has already clearly established the fact of the
case
4) The presentation of object evidence is unnecessary
Q. In a case of revocation of the medical license of the accused (case of Hayden Kho), a sex video
scandal is going to be presented to the Court as evidence. Opponent objects that the viewing of said
video should be prevented. Rule on the objection.
If the issue is to prove that the accused uploaded the sex video—it can be admitted
But if the issue is simply to show that the accused is having sexual relations with several women—
viewing may be disallowed.
Q. Who should identify the picture/document presented as evidence?

In case of the document, it should be identified by a signatory therein. Otherwise, the witness is
incompetent.
In case of the picture/photo, it must be identified by the one who took the picture. Otherwise, witness is
incompetent and the evidence is merely hearsay.
Q. Can right against self-incrimination be invoked against object evidence?

No. Right against Self-Incrimination applies only to TESTIMONIAL evidence.
Q. What is the best evidence rule? Sec. 3, Rule 130

As a general rule, no evidence shall be admissible other than the original document itself when the
subject of the inquiry is the contents of the document.
Q. What is the effect of the Best Evidence Rule?

If the Rule is applicable = You cannot present a photocopy. Original must be presented.
If the Rule is NOT applicable = Secondary evidence may now be presented—including testimonial
evidence
Q. Does the (4) exceptions under the Best evidence rule operate as a “rule of exclusion” (Meaning, no
other documents may be accepted)?
Yes. Secondary evidence is excluded because of the presence of the original document.
Q. When Best Evidence Rule Not Applicable:

When the subject of inquiry is the:
Existence, execution, condition, or the delivery of the document.
Q. Is an UNSIGNED document admissible?

As a rule, it is INADMISSIBLE because its origin is uncertain.
The remedy is to call the person supposed to sign on the witness stand and make him sign it.
Q. How can you prove Secondary Evidence if the original is lost, destroyed or cannot be produced in
court?
Its contents may be proved by a copy, or by a recital of its contents in some authentic document, or by
the testimony of witnesses in the order stated. (Section 5, Rule 130)
Atty. Macababbad emphasized that: In order that a court may allow the a copy, or recital of its
contents in some authentic document, or the testimony of witnesses to proved the lost, destroyed, or
cannot be produced the following conditions must be present
1. existence and due execution of the document
2. proof of unavailability
3. such unavailability is not due to bad faith
Q. is it necessary that the original be accounted for before the secondary evidence be presented?
GR: It must be accounted
XPN: If it is lost, destroyed or cannot be produced.
Atty. Macababbad emphasized that: If the document has been burned rules on secondary evidence is
not allowed. The instances under Section 5, Rule 130 is exclusive
Q. Why is the party not bound to offer the evidence?

He is not bound because the party is in the best position to know what the evidences that are favorable
to him are.
Q. When is the best time to object on the documentary evidence?

At the time it is formally offered as evidence.
Q. Are photocopies of “marked money” admissible as documentary evidence?

No. The subject of inquiry are NOT its contents. [People v. Tandoy]
Q. What is the best evidence of:

Birth = Birth Certificate
Death = Death Certificate
Ownership of Property = Title of Property
Ownership of Shares of Stock in a Corporation = Certificate of Shares
Existence of a Corporation/Government Corporation = SEC Certificate
Marriage = Marriage Certificate
Sale = Receipt
Q. What is the effect if the CONTENTS of the document are NOT in question?
Best evidence Rule is NOT yet applicable.
Q. When we say “original” of a document, does it pertain to the FIRST which is written?
No. The test of Originality (under Sec. 4, Rule 130) is NOT chronological—but LEGAL.
Q. What is the Parol Evidence Rule? Sec. 9, Rule 130

When an agreement is in writing, it is presumed that all the terms and conditions agreed upon are
written down in the said agreement.
Rule on the status of the disqualification of a witness:

Disqualifications of a witness:
Ω Absolute disqualifications:
1. Mental Incapacity – Sec. 21, Rule 130
2. Mental Immaturity – Sec. 21
3. Marital Disqualification - Sec. 22

Ω Partial or Relative Disqualifications:
1. Dead Man’s Statute (Survivor’s Disqualifications) – Sec.23
2. Marital Privilege Communication – Sec. 24
3. Attorney – Client Privilege Communication – Sec. 24
4. Physician – Patient Privilege Communication – Sec. 24
5. Priest – Penitent Privilege Communication – Sec. 24
6. Privilege of State Secrets – Sec. 24
 Marital Disqualification , Sec. 22, Rule 130
Q. May a spouse testify against/in favor of the other spouse?

General Rule: No.
Exceptions:
1. In a civil case by one against the other
2. In a criminal case for a crime committed by one against the other/the latter’s direct
descendants/ascendants
Q. Up to what degree does the exception pertaining to ascendants and descendants extend?
None. There is no limit as to degree, as long as the relationship is DIRECT.
Q. Does the exception pertaining to ascendants and descendants apply to civil and criminal cases?
No. It only applies to CRIMINAL CASES.
Q. May a spouse testify IN FAVOR of the other spouse?

No. Because this may create an instance of PERJURY.
Q. Is this rule applicable if the witness-spouse is not a party?

Yes. Provided that the other spouse is a party. (eg. 3rd party v. Affected Spouse)
Q. What if neither of the spouses are parties?

Yes. Provided that the witness spouse’s testimony is related to “privileged communication”.
Q. Husband told Wife in the presence of their Son that he committed robbery. May the fiscal call the
wife and son to testify against the husband/father?
As to the Son, no. (apply Sec. 25)
As to the Wife, no. (Apply Sec. 22 only—not 24 (a))
But if the Son was not there when the Husband told the wife that he committed robbery, still No. (Apply
Both Sec. 22 and 24(a))
Q. A subpoena duces tecum was issued to the wife (Wife is to bring documents before the court). Can
Marital Disqualification Rule still be invoked?
Yes. The documents cannot be given. To “testify” also includes production of documents and it covers
testimony based on personal knowledge and documents.
Q. Husband and Wife are separated. A suit was brought against the Husband. Wife is called to testify.
Is she qualified?
Yes. Marital Disqualification rule no longer applies. There is nothing to protect anymore as there is no
more identity of interests. Note however that prior dissolution of marriage is NOT required.
Q. When is the giving of testimony (under Sec. 22) prohibited?

DURING the existence of the marriage (regardless if the facts happened before the marriage), as long as
testimony will be given during the marriage.
Q. Wife sues husband for theft of her paraphernal, conjugal and capital property. Can the wife testify
against her husband?
As to the paraphernal and conjugal property = yes.
As to the capital property = No. The Husband cannot be charged of robbery/theft of his own property.
Q. Wife sues mother-in-law for sum of money. Husband is called by the wife to testify:
In favor of his wife
Against his wife
In favor of his mother
Against his mother
1. Testify in favor of his wife = Yes. Wife consented (there is implied waiver of the affected
spouse.) There is in effect, a waiver.
2. Testify against his wife = Yes. (same reason as above)
3. In favor of his mother/Against his wife = No. (Apply Sec. 22 only—not Sec. 25)
4. Against his mother/in favor of his wife = No. (Apply Sec. 25)
Q. Is the marital disqualification rule applicable to Common Law Relationships?

No. There is no marriage relation to protect.
On Annullable marriages = Yes. It is applicable. The marriage is valid until annulled.
On Void Ab Initio marriages = Yes. It is still applicable. As long as there is no declaration of nullity during
the time that wife is to testify
Q. Husband conspired with X and Y to kill his brother-in-law. The 3 were charged of murder via
conspiracy. Can the wife testify against the (3)?
No. In effect, the wife is also testifying against the husband. (In conspiracy, the act of one is act of all).
Also, the brother-in-law is NOT the wife’s direct ascendant/descendant.
Q: spouses W and H are still together, however W is called to testify against H for falsification of W’s
signature by H. Can W testify?
A: Yes. W can testify. There is no more identity of interest, further, W was prejudiced by H’s falsification
of W’s signature.
Q: W sued H for robbery or theft in the ff. instances. Can W testify against H, and vice versa?
Of Paraphernal property: Yes.
Of Conjugal property: Yes.
Of Capital property: No.
Q: Does marital disqualification apply in the ff. instances?

Common Law Spouses – Do not apply
Valid Marriages – apply
Annullable Marriages – apply, as long as not yet annulled
Void ad Initio Marriages - apply as long as there is no declaration of nullity yet
 DeadMan’s Statute
Q. The Dead Man’s Statute is for the protection of whom?

It is for the protection of the estate of: 1.) the deceased; and 2.) the person of unsound mind.
Q. Distinguish Sec. 21 from Sec. 23

Under Sec. 21, the person of unsound mind is called to testify while under Sec. 23, the person of
unsound mind is not being called to testify.
Q. Who are prohibited from testifying under Sec. 23?
P.A.P. v. E.A.R.
claim against estate
P-arties E-xecutor
A-ssignors A-dministrator
P-ersons in whose behalf a case is prosecuted R-epresentatives of the deceased/person of unsound
mind
Nota Bene: If it becomes [E-A-R vs. P-A-P] = Dead Man’s Statute is no longer applicable.
Is this list exclusive? Yes.
Q. If it is the Plaintiff’s son who is to testify, is the Dead Man’s Statute applicable?
No. Dead Man’s Statute is NOT applicable. Hence, the Son can testify.
Q. Supposing the plaintiff is represented by his Son via a Special Power of Attorney (SPA) . Is the
Dead Man’s Statute applicable?
No. It is NOT applicable. The Son can never be one among the [P-A-P]. Hence, he can testify.
Q. Seller sold the land to Buyer via a contract-to-sell and there is a witness during the execution of the
contract. Buyer dies. Seller filed a case against the estate of the deceased Buyer. Seller will then testify
as to the unpaid balance. Is he qualified?
No. The Dead Man’s Statute applies. The Seller is the Plaintiff in the case. Hence, he cannot testify.
But as to the witness (during the execution of the contract) = the witness can testify. The Dead Man’s
Statute is applicable.
Q. Supposing that after Buyer’s death, the Buyer’s Son took possession of the land. Seller testifies on:
1. the fact of execution of the contract
2. the fact of unpaid balance
3. the fact of possession by buyer’s son
Will you object? Is Dead Man’s Statute applicable?
On #1 and #2 = Yes. I will object. The seller cannot testify.
On #3 = No. I will not object. The Dead man’s Statute is NOT applicable. Hence, Seller can testify. The
possession took place AFTER Buyer’s death.
Q. Supposing that BEFORE Buyer’s death in 2005, under the Notarial Law, cedula was issued in 2004.
Will the Dead Man’s Statute apply?
Yes. The Dead Man’s Statute will apply. Seller cannot therefore testify because this is NOT a matter of
fact but rather, it is a matter of LAW.
Q. JPT Corporation is represented by Miguel, the president of the said corporation. Can he testify?
Yes. He can testify. The Dead Man’s Statute will NOT apply. He is NOT a party to the case—it is the
CORPORATION who is the party.
Q. VRP Hardware Supplies is represented by the Vice President, Patron. Patron wants to testify. Is he
qualified?
No, he CANNOT testify. The Dead Man’s Statute is applicable. VRP Hardware Supplies is a sole
proprietorship. Hence, it has NO juridical personality yet and Patron now becomes the Plaintiff in this
case.
Q. When is the determinative point for Dead Man’s Statute to apply?

The determinative point is during the time that the person will testify.
Q. In special proceedings, is Dead Man’s Statute applicable?

Yes. It is applicable—It is also applicable in Civil Cases. But NOT in land registration cases.
Q. Administrator of X filed a suit against Y. Can the administrator testify?

As to the administrator = Yes, he can testify. Dead man’s Statute is NOT applicable.
Q: Plaintiff (P) filed collection of sum of money against the estate of X for loan made before X’s death.
Can P testify? No. Not allowed, pursuant to Sec. 23, Rule 130.
Can P’s son testify? Yes. Not one of P.A.P., thus not disqualified to testify
Q: Plaintiff (P) filed collection of sum of money, in US, against the estate of X for loan made before X’s
death and made his son as attorney in fact thru an SPA.
Can P’s son testify? Yes. Still Not one of P.A.P., thus not disqualified to testify
Q: B entered in a contract to sell with S, however, B left unpaid debts upon his death. S filed against
estate of B.
Can S testify? No. DMS applies.
F (friend of B) is called to testify to prove the unpaid debts of B. Can F testify? Yes. DMS does not apply
to F.
Q: (relate to facts stated above) Upon death of B, B’s sons possessed the res in issue. S filed
cancellation of contract to sell with reconveyance.
Can S testify as to the execution of the CTS? No. DMS applies.
Can S testify as to the unpaid debts of B? No. DMS applies to S.
Can S testify on the illegal possession of B’s son? Yes. DMS will not apply since possession happened
after the death of B.
Q: Plaintiff N in a shooting incident with D. N sustained injuries, while D died. For the injuries, N filed a
claim against the estate of D. Estate of D interposed counterclaim against N on their answer.
1: Can N testify on the sustained injuries in support of his claim – No. DMS applies against N.
2. Can N testify in defense of the counterclaim: Yes. DMS will no longer apply.
 Sec. 24(a), Rule 130. Marital Privilege Communication:
Q:Petition for nullity of marriage between H and W approved, however, such was under appeal.
Falsification case was filed against H. Can W testify during the pendency of the appeal?
A: No. No finality of nullity of marriage.
Q: When there is already a finality of nullity?

A: Still No. Sec. 24(a) prohibits testifying of spouse during or after the marriage, unlike in Sec. 22, that
marital disqualification is only during marriage.
As to spouses separated in fact. Application of Secs. 22 and 24(A), Rule 130.

Sec. 22 - Spouse can testify. What is protected is the marriage between the spouses.
Sec. 24(a) - spouse still cannot testify. What is protected is the privilege communication between the
spouses.
Privilege communication between spouses in front of child:

Q: if the child is a 5year old , will the communication still be considered as confidential? Yes. Child does
not know the importance of the communication.
Q: if son is 30years old? No. Communication is deemed not covered by the privilege communication
rule.
 Attorney – Client Privilege
Q: client charges the lawyer. Can client testify?

A: Yes. It is on the discretion of the client when or when not to invoke the privilege.
Q: Can lawyer testify?

A: Yes. It is his constitutional right to be heard. Also, Rule 12.01 Code of Professional Responsibility
provides instances when lawyer may reveal the confidential communication.
 Parental/Filial Privilege Rule (Sec. 25)
Q. Define Parental/Filial Privilege Rule

Sec. 25—No person may be compelled to testify against his parents, other direct ascendants, children or
other direct descendants.
Q. To whom does Parental privilege apply?

The privilege is given to PARENTS. They cannot be compelled to testify against their child/other direct
descendants.
Q. Up to what degree or level does the privilege extend to?

None. The law does not prescribe the degree or level. The law merely provides “direct” descendants.
Q. Your child committed a crime. Fiscal issues a subpoena to you for you to testify against your child.
Can this be done?
No. It cannot be done. Invoke Sec. 25.
Q. What is the reason behind the rule on Parental/Filial privilege rule?

The reason is to protect family relations.
Q. Can you compel a parent/child to testify “IN FAVOR” (not against) his/her ascendant or
descendant?
Yes. The parent/child may be compelled to testify in favor of his/her ascendant or descendant because
the family cohesion is manintained.
Q. At first, the daughter will testify “IN FAVOR” of her father. Upon taking the witness stand, her
testimony became “AGAINST” her father. Father’s lawyer objects on the ground of Sec. 25. Rule on
the objection.
Overruled. Sec. 25 is NOT applicable. The daughter is NOT being compelled to testify.
So what is the remedy?
Ask that the daughter-witness be declared as a “Hostile Witness” (under Rule 132) Its effect would be:
You can now directly cross-examine the witness.
Q. Is this Sec. 25 absolute/relative disqualification?

It depends. If the testimony is AGAINST the decendant/ascendant = it is ABSOLUTE; but if the testimony
consists of SOME are FAVORABLE and some are AGAINST = it is RELATIVE.
Q. A child testifies without being compelled. Is the testimony already automatically admissible?
No. it is not automatically admissible. The testimony in this case would be self-serving.
Q. What does Art. 215 of the Family Code says in relation to Sec. 25?
This pertains to FILIAL relation and applies to CRIMINAL cases only while Sec. 25 applies to BOTH
criminal and civil cases.
In case of conflict between Art. 215 and Sec. 25, which should prevail?
Art. 215 of the Family Code should prevail as this is the substantive law. Sec. 25 is merely procedural.
 Admissions and Confession
Q. What is the reason behind Sec. 26 and Sec. 27

It is fair to assume that the act, declaration or omission corresponds to the truth. The basis is the
principle of Estoppel under the Civil Code.
Q. What are the types of admission? Define each?

1. Judicial = made in the course of judicial proceedings
2. Extrajudicial = made out of court or even in a proceeding other than the one under
consideration
3. Express = positive statement/act
4. Implied = declarations/acts of a person
Q. What is the effect of judicial and extrajudicial confession?

Judicial Confession = admissible already as evidence
Extrajudicial Confession = Needs to be corroborated by evidence (corpus delicti)
Q. Other types of Admission under Rule 130 (Vicarious Admissions)

Sec. 26 = Admission of a Party
Sec. 28 = Admission by 3rd Party
Sec. 29 = Admission by co-partner/agent
Sec. 30 = Admission by conspirator
Sec. 31 = Admission by Privies
Sec. 32 = Admission by Silence
Q: In custodial investigation, declarant confessed his participation in the crime? Is the admission
admissible against himself?
A: No. If not made in the presence of a counsel. Otherwise, it may be admissible.
Q: Is the admission admissible against other conspirator?

A: not admissible, on the ground of res inter alios acta.
Q: If admission made in open court, is it admissible?

A: Yes. Lawyers of the co-conspirator may cross examine the witnesses.
Admission by privies:
X is the predecessor in interest. Y is the buyer. S is the adjoiner, suing for the right of way.
If X is called to testify, is it an admission by a privy? Yes. Admissible against Y? Yes.
If S is called to testify on the existence ofr ight of way, is it an admission by a privy? Yes. Admissible
against Y? No. Hearsay rule.
If S is called to testify that X is making a right of way, is it an admission by a privy? No. Admissible against
Y? Yes. Personal knowledge of S.
---- end of coverage for Midterms ----
Similar acts as evidence. - Sec. 34, Rule 130, ROC
N.B. Second part of res inter alios acta rule; the first part is Section 28
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.
EXN: I – SKIP – SCHUL
1. Specific intent or knowledge;

2. Identity;
3. Plan;
4. System;
5. Scheme;
6. Habit;
7. Custom;
8. Usage; and
9. the like
Previous conduct came from an argument in logic of “non sequitor” which its conclusion does not follow
from its predicates.
To be admissible, evidence must show that the other offenses are so related in time, place, and
circumstances to the offense charged as to have substantial probative value.
Unaccepted offer. - Sec. 35, Rule 130.
Q: Can tender of payment produce legal effect?

A: No. Tender of payment alone will not produced legal effect it must be completed or coupled with
congsination (deposit of any property in court).
GR: Tender of Payment and Consignation need to be present.

Q. Does consignation alone extinguish obligation to pay?
A. No. 2 elements must concur: 1.)tender of payment; 2.)consignation
Refer to: Art. 1256 of New Civil Code

GR: If the creditor to whom tender of payment has been made refuses without just cause to accept it,
the debtor shall be released from responsibility by the consignation of the thing or sum due.
XPN’s: Consignation alone shall produce the same effect in the following cases:
(1) When the creditor is absent or unknown, or does not appear at the place of payment;
(2) When he is incapacitated to receive the payment at the time it is due;
(3) When, without just cause, he refuses to give a receipt;

(4) When two or more persons claim the same right to collect
(5) When the title of the obligation has been lost.
Benefit: if you make an offer without consignation, no more interest rate; equivalent to the actual
production and tender of the money, instrument, or property.
Testimony generally confined to personal knowledge. - Sec. 36, Rule 130

GR: The testimony of the witness must be based on his personal knowledge – not on what he just heard
from other people.
EXNS:
1. Dying declaration
2. Declaration against interest
3. Act or declaration about pedigree
4. Family reputation or tradition regarding pedigree
5. Common reputation
6. Part of res gestae
7. Entries in the course of business
8. Entries in official records
9. Commercial lists and the like
10. Learned treatise
11. Testimony or deposition at a former proceeding.
Hearsay – all assertions which have not been subject to opportunity for cross examination by the
adversary at the trial in which they are being offered against him.
Q. When is the statement/testimony of a witness considered as hearsay?

 If the witness has NO personal knowledge
 The statement is made outside the court
Q. What is the remedy if the other party opposes that the statement is hearsay?
A: State that the statement is for a non-hearsay purpose when you offer your witness.
In case of MULTIPLE HEARSAY:

 Non-Hearsay purpose can no longer be invoked
 (eg.) Newspaper clippings
Q. What is the weight of hearsay evidence?

A: It has NO probative value
Q. Are affidavits written hearsay evidence?

 Yes. They are also self-serving.

 But if the affidavit will be offered in court and the affiant will testify on the basis of such
affidavit—It is no longer hearsay.
 If the affiant was not cross-examined—it is self-serving.
Elements of Hearsay:
1. There is an out of court statement made by one who is not on the witness stand
2. That statement is being used to prove the truth of a matter of fact
If #2 element is missing (eg. You are not trying to prove the truth of the mater) = you cannot
invoke hearsay evidence rule.
For a hearsay evidence to be admissible:

 Check the purpose. It should be for a non-hearsay purpose
Examples of non-hearsay purpose:

 Statements relating to the state of mind of the declarant
 Statements relating to the state of mind of the listener
 Statements to prove that the fact or testimony was in fact made (Doctrine of Independently
Relevant Statements)
 Statements to impeach
“Doctrine of Independently relevant statements”

 You are NOT trying to prove the truth but only the fact that the statement was made.
Non hearsay evidence – admissible. Where a statement is not offered for the truth of the contents of
the conversation, but only to show that it was made. The purpose for introduction is not to prove the
truthfulness, but only the making of the statements and are admissible in evidence when the making of
the statement is relevant.
Effect of waiver: the Hearsay rule can be WAIVED by failure to make a timely objection
Basic Rules on Hearsay- if the purpose of the testimony of the witness is to prove:
1. the TENOR of his conversation with someone- this is ADMISSIBLE in evidence
2. the TRUTH of the statement made by someone- this NOT ADMISSIBLE in evidence
Test to determine whether or not evidence is hearsay:

Whether or not the adverse party is DEPRIVED of the OPPORTUNITY to CONFRONT and cross-
examined the REAL WITNESS against him. Hearsay evidence is actually a denial of the right to
cross-examine.
INDEPENDENT RELATIVE STATEMENT, this doctrine hold that conversations communicated to a witness
by a third person may be admitted as proof, THAT REGARDLESS OF THEIR TRUTH, FALSITY, THEY WERE
ACTUALLY MADE. It appears hearsay in character, but is not actually legal hearsay.
When an Utterance may be considered an Independent Relevant Statement?

1. When the utterance or statement constitutes a fact in issue, or
2. When the utterance or statement is circumstantially relevant to the existence of such fact.
 Dying Declaration. - Sec. 37, Rule 130.
A dying declaration is the statement which refers to the cause and surrounding circumstances of the
declarant’s death, made under the consciousness of an impending truth.
Requisites for Admissibility/Elements of a dying declaration:

1. The declaration was made under CONSCIOUSNESS of an impending death;
2. The declaration refers to the cause and surrounding circumstances of the declarant’s death;
3. The declaration relates to facts which the victim is competent to testify;
4. The declarant thereafter dies; and
5. The declaration is offered in a criminal case wherein the declarant’s death is the subject of the
inquiry.
Reason for the rule:

1. Necessity –
2. Trustworthiness
Primary questions: WON the evidentiary foundations for the introduction of a dying declaration were
met.
Defense: when did the declarant died?
Q: WON Dying Declaration sufficient for conviction?

A: Yes. Even though there is no other evidence.
Q: Is the dying declaration conclusive upon the court?
A: No.
Q: When the dying declaration satisfies all the reqisites for admissibility, is it conclusive ass to the guilt
of the person alluded to by the victim? (PP v. Dunig)
A: No. A dying declaration is entitled to the highest credence on the theory that a person who knows he
is in the verge of death is not likely to make a false accusation. However, the declaration, albeit
presumably in good faith, may still be based on an erroneous identification of the declarant’s killer.
Q. Can a dying declaration be used in a Rape case?

A: It depends.
 If it is a rape with homicide = Yes.
 If simple rape only = No.
Dying Declarations are NOT conclusive.

 They are still subject to the judge whether or not he will accept the dying declaration.
“Impending death”—is a state of mind. How do you prove it?

 Present those individuals who are present when the person was dying.
 (eg.)Priest, parents, emergency doctor, relatives, etc.
Q. What if the dying person survives?

A: It is still considered a dying declaration.
Q. Should dying declarations be limited to circumstances of death?

A: Yes.
Purposes for admitting a dying declaration:

1. Identity of the assailant
2. cause of death
3. circumstances (motive)
Q. A dying declaration was made, “Pinatay ako ng asawa ko.” How can you show that the spouse
really stabbed the victim?
A: The dying declaration is not yet complete. First, establish the impending death or the elements of a
dying declaration. Second, present other witnesses.
Q. Can a dying declaration be FAVORABLE to the accused?

A: Yes.
Q. Can conviction be made solely on the dying declaration?

A: Yes.
Q. If the dying man is an incompetent witness, is his dying declaration an incompetent evidence?
A: Yes. Everything must come from a competent witness.
Q. Can a dying declaration through sign language be accepted?

A: Yes.
Q. In criminal cases where the civil case is deemed instituted, can you use the dying declaration to
claim damages in the instituted civil case?
A: Yes.
Q. If the civil case is NOT instituted with the criminal case. Can you still use the dying declaration to
claim damages?
A: Yes.
 Declaration against interest - Sec. 37, Rule 130.
It includes all kinds of interest, be it pecuniary, proprietary, moral, or even penal. A statement may be
admissible when: (Requisites for Admissibility)
1. Declarant is dead or unable to testify
2. It relates to a fact against the interest of the declarant
3. At the time he made said declaration, the declarant was aware that the same was contrary to his
aforesaid interest
4. The declarant had no motive to falsify and believed such declaration to be true.
Different Kinds of Interest:

1. Proprietary Interest
2. Pecuniary Interest
3. Penal Interest
Admission vs. Declaration Against Interest

Admission Section 26, Rule As to: Declaration Against Interest
130 Section 38, Rule 130
May be made in favor or How it is made Always made against the

against the person making declarant’s interest
the admission
Against oneself or others Against whom it is made Must be made against

oneself
Only against the person who Against whom it may be Against the declarant himself,
made the admission and received in evidence his successors-in-interest,
those identified with him in and against third persons
legal interest
Person making the admission Status of the one making it Declarant must be dead or
need not be dead or unable unable to testify
to testify
N.B. Declaration against self interest has been expanded to include all kinds of interest, that is pecuniary,
propreitary, moral or even penal.
Common Reputation - Sec. 41, Rule 130
REPUTATION is the common report which other makes about a person/family; prevailing in the
community as to the existence of a certain fact.
Reputation Rumor
1. Involves a general estimate by the 1. Loose talk which the community has
community as a whole not had an opportunity to evaluate
2. Implies definite and final formation of and accept or reject
opinion by the community 2. Implies merely a report that is not yet
3. Predicated upon a general trait of fully credited
character 3. Thought of as signifying a particular
act or occurrence
4. Cannot be shown on an inquiry as to
character or reputation unless so
common and prevalent
Matters of public interest – common to all citizens of the state or to the entire people
Matters of general interest – common only to a single community or to a considerable number of
persons forming a part of the community.
Matters of Public Interest Matters of General Interest
1. Affects all the people of state or 1. Common to the inhabitants of a

country subdivision of the state or country
2. Declarations may be made by an 2. Declarations may be made by only
inhabitant those who possess adequate
knowledge
Character vs. Reputation

Character Reputation
Refers to the inherent qualities of the person Applies to the opinion which others have
rather than to any opinion that may be formed and expressed of his character
formed or expressed of him by others what
he really is
Character Reputation
What the man is What he is supposed to be in what people say
Depends on attributes possessed Depends on attributes which others believe

one to possess
Signifies reality Merely what is accepted to be reality at

present.
GR: reputation of a person should be that existing in the place of his residence, it may also be that
existing in the place where he is best known.
Q: WON matters of pedigree may be rpoven by common reputation.

GR: They can only be proven by family reputation under Sec. 40, Rule 130 and the person testifying on
such matters must be a member of the family.
EXN: They can be proven by common reputation, when such matters refer to marriage.
 Part of Res Gestae - Sec. 42, Rule 130.

Res Gestae → “things done”
Two types of RES GESTAE

a) Spontaneous Statements – made by a person while a startling occurence is taking place or
immediately prior or subsequent thereto with respect to the circumstances thereof. (even if
declarant is unavailable, evidence may still be received in evidence); as long as the statement
was made under nervous excitement.
b) Verbal acts – statements accompanying an equivocal act material to the issue and giving it a legal
significance; it must be contemporaneous with or must accompany an equivocal act.
Test of admissibility for evidence as a part of res gestae is WON the act, declaration, or exclamation is
so intimately interwoven or connected with the principal fact or event which it characterizes as to be
regarded as a part of the transaction itself, and also whether it clearly negatives any premeditation or
purpose to manufacture testimony (Francisco, Evidence 304, 1994)
Factors to Determine Spontaneity of Statements

1. The time that lapsed between the occurrence of the act or transaction and the making of the
statement;
2. The place where the statement was made;
3. The condition of the declarant when he made the statement;
4. The presence or absence of intervening events between the occurrence and the statement
relative thereto; and
5. The nature and circumstances of the statement itself
Distinctions :
Spontaneous Exclamations v. Statements accompanying an Equivocal Act
Spontaneous Exclamations Statements Accompanying an Equivocal Act
1. The principal fact is a startling 1. The principal fact is an equivocal act

occurrence
2. The Statements may precede, 2. Statements must accompany the

accompany, or succeed the startling equivocal act
occurrence
3. The statements need not explain the 3. Statements must explain the
principal fact, which is a startling equivocal act and must give it legal
occurrence significance
Dying Declaration vs. Res Gestae Statements

Dying Declaration Res Gestae Statements
1. It is required that the statement was 1. It is NOT required that the statement
made under the consciousness of an be made under the consciousness of
impending death an impending death
2. The declarant must die after the 2. The declarant need not die after the
declaration declaration
3. The declarant’s death is the subject of 3. The declarant’s death need not be
the inquiry subject of inquiry
4. The declarant must be the one who 4. The declarant may even be a witness
dies to the startling occurrence
 Testimony or Deposition at a former proceeding. - Sec. 47, Rule 130.

In Criminal Cases, either party may utilize as part of its evidence the testimony of a witness who is
deceased, out of or cannot with due diligence be found of the country, unavailable, or otherwise unable
to testify, given in another case or proceeding, involving the same parties and subject matter, the
adverse party having the opportunity to cross examine him. (see Rule 115, Sec.1f)
Opinion Rule
GR: witnesses must give the facts, and not their inferences, conclusions or opinions. (Rule 130, Sec. 48)
EXNs:
❖ Opinion of expert witness. (Rule 130, Sec. 49)
❖ Opinion of an ordinary witness. (Rule 130, Sec. 50 a-d)
Sec. 49, Rule 130. Opinion of Expert Witness.

N. B. There is no definite standard of determining the degree of skill or knowledge of a witness to qualify
as an expert. It is sufficient that the following factors be present: 1. Training and education. 2. Firsthand
familiarity with the facts of the case. 3. Presentation of authorities or standards upon which his opinion
is based.
Expert Evidence admissible only if:

1) The matter to be testified requires expertise
2) The witness has been qualified as an expert.
Q: Are opinions of handwriting experts conclusive upon the courts?

A: No. It is wellsettled that opinions of handwriting experts are not binding upon courts. Although such
testimony may be useful, the judge still exercises independent judgment on the issue of authenticity of
signatures under scrutiny. (Jimenez v. EMRUPC, 2002)
Sec. 51, Rule 130. Character Evidence.
Character → aggregate of the moral qualities which belong to and distinguish an individual person.
Reputation → what other persons perceive about an individual.
GR: Character evidence is not admissible in evidence.

EXNs:
o Criminal Cases
a) Accused may prove his good moral character which is pertinent to the moral trait
involved in the offense charged. (e.g. prosecutions for estafa, perjury, false testimony)
b) Prosecution may not prove bad moral character of the accused unless in rebuttal.
c) As to the offended party, his good or bad moral character may be proved as long as it
tends to establish the probability or improbability of the offense charged.
--Exception to the Exception”
● Proof of bad character of the victim in a murder case is not admissible if the crime was
committed through treachery and premeditation.
● In prosecution for rape, evidence of complainant’s past sexual conduct, opinion thereof
or of his/her reputation shall not be admitted unless and only to the extent that the court
finds that such evidence is amterial and relevant to the case.
o Civil Cases
The moral character of either party cannot be proved unless it is pertinent to the issue of
character involved in the case (e.g. civil actions for damages arising from offenses of libel,
slander, or seduction)
Rule 132
Section 1. Examination to be done in open court

The examination of the witnesses presented in a trial or hearing shall be done in open court, and under
oath or affirmation.
GR: The witness’ answer shall be given orally.

XPN’s:
1. Unless the witness is incapacitated to to speak, or the question calls for a different mode of
answer; and
2. Judicial Affidavit Rule
GR: Affidavits are inadmissible unless the affiant is presented in court
XPN’s:
1. Cases governed by the Rules on Summary Procedure;
2. Fact of making of the affidavit is an issue;
3. Admissions
4. Impeach a witness
5. When the law so provides/allows
6. Part of Res Gestae
7. Declaration Against Self-Interest
8. Part of the testimony of the witness
9. Adverse part waives to its admissibility
10. Court takes Judicial notice thereof
Q: What is the “COURT” contemplated in Section 1 of Rule 132?

A: It refers to a body clothed with adjudicatory power, it includes quasi-judicial bodies.
“OPEN COURT IN SESSION” starts when the Judge goes out at his chamber and the judge struck the
gavel.
What is the Purpose why examination of witness must be done in open court?
-To enable the court to gauge the credibility of the witness
-To compel the witness to speak the truth; and
-To make the public know that the accused/ defendant is fairly dealt with.
What is the difference between oath and affirmation?

Oath Affirmation
An outward pledge given by the person A solemn or formal declaration or assertion

taking it that his attestation or promise is that the witness will tell the truth, the whole
made under an immediate responsibility to truth and nothing but the truth without no
God while his one hand is placed on top of a gods, Bibles or anything else religious need to
Bible. be involved.
GR: Witness must oath or affirm before giving his testimony

XPN: When waived or not objected by the other party (the conduct of cross-examination constitutes as
a waiver)
Two-fold objective in requiring the witness to be sworn:

1. By affecting the conscience of the witness to compel him to speak the truth; and
2. That if he willfully falsifies that truth, that he may be punished under the pain of perjury.
Section 2. Proceedings to be recorded
Q: Should the entire proceedings be recorded?

A: YES. 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.
“OFF THE RECORD MANIFESTATION” is not allowed as per Section 2, Rule 132.
GR: Testimony without oath is inadmissible in evidence.

EXNs:
1. Adverse counsel failed to object to the absence of oath
2. When the adverse counsel conducted a cross-examination, serves as waiver to the lack of oath.
Section 3. Rights and Obligations of a witness
Obligations of a Witness:
1. To answers questions, although his answer may tend to establish a claim against him; and
2. To answer the fact of his previous final conviction or an offense.
Rights of a Witness:
1. To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting
demeanor;
2. Not to be detained longer than the interests of justice require;
3. Not to be examined except only as to matters pertinent to the issue;
4. Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise
provided by law, e.g.,Right against Self-incrimination and other immunity statutes which grant
the witness immunity from criminal prosecution for offenses committed; and
5. Not to give 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 witness must answer to the fact
of his previous final conviction for an offense.
Scope of the Right of the Right Against Self-Incrimination

1. No person shall be compelled to be a witness against himself
2. May be invoked in any court proceedings (judicial, administrative, legislative or military, civil or
criminal cases)
3. The rule only covers testimonial self-incrimination and production by him of incriminating
documents and articles (or even by counsel).
“Right against self-incrimination” is self executing in criminal cases.
Accused's Right Against Self-incrimination Ordinary Witness’ Right Against Self-

(ABSOLUTE) Incrimination
(PARTIAL/RELATIVE)
1. Accused may refuse to take the stand 1. May be compelled by subpoena
2. May refuse to answer any and all

questions. 2. May only refuse to give answer a
particular incriminatory question at
(if the accused testifies on his own behalf, the time it is put to him.
then he may be cross-examined as to any
matter stated in his direct exam, or
connected therewith.)
Section 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.
ORDER OF EXAMINATION OF INDIVIDUAL WITNESS
DIRECT EXAMINATION (Section 5, Rule 132)
Who conducts: Proponent
Why conducted: Examination-in-chief of a witness by the party presenting him, on the facts
relevant to the issue
CROSS EXAMINATION (Section 6, Rule 132)
Who conducts: Opponent
When conducted: Upon the termination of the direct examination
Why Conducted:
1. To test the witness’s accuracy and truthfulness, and freedom from interest or bias, or
the reverse, and
2. to elicit all important facts bearing upon the issue (Orthodox English Rule/ Wide Open
Rule)
What matters are covered: Any matter stated in the direct examination, or connected
therewith
RE-DIRECT EXAMINATION (Section 7, Rule 132)
Who conducts: Proponent
When conducted: After cross-examination of the witness
Why Conducted: To explain or supplement his answers given during the cross- examination
What matters are covered: Those stated in the cross-examination, and matters not dealt
with, if allowed by the Court
RE-CROSS EXAMINATION (Section 8, Rule 132)
Who conducts: Opponent
When conducted: Upon the conclusion of the re-direct examination
What matters are covered:Those stated in his re-direct examination, and also on such other
matters as may be allowed by the court in its discretion
RECALLING THE WITNESS (Section 9, Rule 132)
Who conducts: Either party
When conducted: After both sides have concluded the examination of witness, and with
leave of court
Why Conducted:
1. Particularly identified material point were not covered in cross-examination
2. Particularly described vital documents were not presented to the witness
3. Cross-examination was conducted in so inept a manner as to result in a virtual
absence thereof.
“TRIAL” starts upon arraignment until rendition of judgment
Q: Can the court deviate from the order or examination of witnesses?

A: Yes. In line with the long-recognized principle that every court has inherent power to do all things
reasonably necessary for the administration of justice within the scope of its jurisdiction. Section 5(g),
Rule 135 of the Rules of Court further recognizes the inherent power of courts “to amend and control its
process and orders so as to make them conformable to law and justice,” [Republic vs. Gingoyon, 478
SCRA 474(2005)]
Right to cross-examination is a mere opportunity because it's waivable.
Q: Can the lawyer cross-examine his client’s co-accused?

A: Yes. From the moment the witness/co-accused testify adversely affects the interests or defense his
client the co-accused may be cross-examined.
Section 10. Leading and Misleading questions
Questions not allowed:

1. Misleading Questions (Section 10, Rule 132)
a. Questions that assume as true a fact not yet testified to by the witness, or contrary to
that which he has previously stated.
b. NEVEL allowed
2. Leading Questions
a. Questions that suggest to the witness the answer, which the examining party desires.
GR: Leading questions are not allowed

XPN’s:
1. On cross-examination;
2. On preliminary matters;
3. When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant,
or child of tender years, or is of feeble mind, or deaf-mute;
4. On an unwilling or hostile witness;
A witness may be considered hostile only when declared by the court, upon adequate
showing of his: ?(Section 12, Rule 132)
● Adverse interest;
● Unjustified reluctance to testify;
● His having having misled the party into calling him to the witness stand.
5. On a witness who is an adverse party or an officer/director or managing agent of a public/private

corporation or of a partnership/association which is an adverse party.
LEADING QUESTION MISLEADING QUESTION
Direct Examination ✖ ✖
xpn: hostile witness
Cross-examination ✔ ✖
Re-direct Examination ✖ ✖
xpn: Hostile witness
Re-cross Examination ✔ ✖
Q: Can a judge ask questions in the form of searching questions?

A: No. A trial judge should limit himself to clarificatory questions and not ask searching questions after
witness has given direct testimony they should not build the case for any of the adversaries. [Valdez vs.
Aquilizan, 133 SCRA 150(1984)]
Q; If a judge asked objectionable question, can the counsel object?

A: Yes. Case Illustration:
Facts: The complaint alleged an express promise to pay a certain sum for services rendered. At the trial
evidence was received as to the reasonable value of the services, without objection on the part of the
defendant.
Held: That by failure to object, the defendant waived the point that the evidence was not admissible
under the complaint.
In such a case the fact that the questions in regard to the reasonable value were asked by the court did
not relieve the defendant from the duty of objecting. [Loper vs. The Standard Oil Co., 5 Phil. 549(1906)]
MEMORIZE! “BUZZ WORDS” that the question is either leading or misleading

1. Did you see the defendant on….?
2. You did not…?
3. Have you not…?
4. Isn’t is a fact…?/ as a matter of fact…?
5. The Facts are…
6. That is true, Isn’t it…?
7. Do you mean to say that…?
8. By that answer of yours…?
9. You don’t know the answer…?
Section 11. Methods of Impeachment of adverse party’s witness

1. By contradictory evidence (CE);
2. By evidence of bad reputation (EBR);
3. By prior inconsistent statement(PIS); and
4. Record of prior conviction (RPC)
GR: A party is not allowed to impeach his or her own witness or belonging to the party first calling them
because they vouched for the credibility of those witnesses and is barred from impeaching them.
How the witness is impeached by evidence of inconsistent statements? (Laying the predicate)
Elements:
1. The alleged statements must be related to the witness including the circumstances of the times
and places and the persons present. if the statements are in writing they must be shown to him.
2. Witness may be asked whether he made such statements and also to explain them if he admits
making those statements.
Purpose: To allow the witness to admit or deny the prior statements and also to explain them if he
admits making those statements.
One cannot impeach a witness on collateral matters, only those related to the material issue is a
ground to impeach the witness.
Sec. 16. When witness may refer to memorandum.

GR: the witness is not allowed to read his notes while being examined.
EXNs:
Ω Present recollection refreshed – inadmissible in evidence, takes the form of a corroborative
evidence
Ω Past recollection recorded – admissiible in evidence.
Sec. 21. When evidence of authenticity of private document not necessary.

Under the ancient document rule, for a private document to be exempted from proof of due execution
and authenticity, it is not enough that it be more than 30 years old, it is also necessary that:
a) It is prodiuced from a custody in which it would naturally bbe found if genuine,
b) It is unblemished by any alteration or circumstances of suspicion.
Sec. 34. Offer of evidence.

Requisites for the court to consider evidence:
1. Evidence must be formally offered
2. The purpose for which the evidence is offered must be specified. (Rationale: To avoid mulitiple
admisibility)
Sec. 38. Ruling:

GR: the ruling must be given immediately after the objection is made.
EXN: the court may delay the ruling if it desires to take a reasonable time to inform itself on the
question presented.
N.B. Only a judge can make a ruling, regardless of the delegation by the judge to his branch clerk of
court for the reception of the pieces of evidence as an ex parte proceeding.
Sec. 40. Tender of excluded evidence.

Oral Evidence / Testimony: you can only make a proffer of evidence if evidence was objected or
rejected.; Proffer of excluded evidence can only be done in direct examination and not in cross-
examination.
Documentary or Object Evidence: proffer of evidence only after the formal offer of evidence.

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Evidence and Trial Technique Page 1 of 36

(Atty. Lionell Macababbad)

Q. What is the nature of the rules on Evidence? It is a PROCEDURAL LAW.

Q. How should the rules on Evidence be construed?

Q. What is the difference between evidence and proof?

Q. Who has the burden of proving evidence?

Q. What is the scope of Law on Evidence?

Q. What is the principle of uniformity on the rules of evidence?

Q. Can the rules of evidence be waived?

Q. What are the kinds of Evidence?

Q. What are the different quantum of evidence?

Q. Differentiate “Admissibility” and “Credibility” (or “weight”) of the Evidence

Diagram of Classifications of Evidence

Q. When is admissibility of evidence presented?

Q. What are the Doctrines of Admissibility?

Q. What is the Rule on Multiple admissibility?

Q. What is curative admissibility?

Q. What is conditional admissibility?

Q. Distinguish admissibility and weight

Q. Distinguish admissibility and credibility

Q. What is exclusionary rule?

Q. What are the rights protected by the exclusionary rule?

Q. When objection to admissibility of evidence should be made?

Q. Are collateral matters admissible?

Q. What is judicial notice?

Q. How can judicial notice abbreviate litigation?

Q. When judicial notice is mandatory?

Q. When judicial notice is discretionary?

Q. What is the test of notoriety and range of its application?

Q. When judicial notice is necessary?

Q. What is judicial admission?

Q. Can unsigned manifestation be considered as judicial admission? [People v. Hermanes]

Q. How is Section 4 of Rule 129 related to Section 8, Rule 8?

Q. What are the Kinds of Evidence?

Q. What is object evidence?

Q. What are the two kinds of object evidence?

Q. Who should identify the picture/document presented as evidence?

Q. Can right against self-incrimination be invoked against object evidence?

Q. What is the best evidence rule? Sec. 3, Rule 130

Q. What is the effect of the Best Evidence Rule?

Q. When Best Evidence Rule Not Applicable:

Q. Is an UNSIGNED document admissible?

Q. Why is the party not bound to offer the evidence?

Q. When is the best time to object on the documentary evidence?

Q. Are photocopies of “marked money” admissible as documentary evidence?

Q. What is the best evidence of:

Q. What is the Parol Evidence Rule? Sec. 9, Rule 130

Rule on the status of the disqualification of a witness:

3. Marital Disqualification - Sec. 22

 Marital Disqualification , Sec. 22, Rule 130

Q. May a spouse testify against/in favor of the other spouse?

Q. May a spouse testify IN FAVOR of the other spouse?

Q. Is this rule applicable if the witness-spouse is not a party?

Q. What if neither of the spouses are parties?

Q. When is the giving of testimony (under Sec. 22) prohibited?

Q. Is the marital disqualification rule applicable to Common Law Relationships?

Q: Does marital disqualification apply in the ff. instances?

Q. The Dead Man’s Statute is for the protection of whom?

Q. Distinguish Sec. 21 from Sec. 23

Q. Who are prohibited from testifying under Sec. 23?

Q. When is the determinative point for Dead Man’s Statute to apply?

Q. In special proceedings, is Dead Man’s Statute applicable?

Q. Administrator of X filed a suit against Y. Can the administrator testify?