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Evidence | Final Exam Reviewer | Judge Martinez | A.Y.

2017-2018 | 2nd Semester 1

EXCEPTIONS:
RULES ON EVIDENCE 1) in civil cases – by depositions
2) in criminal cases- by depositions or conditional examinations

RULE 132 Answers of the witnesses presented in a trial or hearing shall be done in open court
and under oath or affirmation.

PRESENTATION OF EVIDENCE Answers shall be given orally except if:


1) Witness is incapacitate to speak;
2) The question calls for a different mode of answer.
A. EXAMINATION OF WITNESSES
Sec. 2 provides that the questions propounded to a witness and his answers thereto
shall be recorded. The entire proceedings of the trial must be recorded. The
Relevant Provisions: recordings may be by shorthand, stereotype or any means of recording found suitable
Section 1. Examination to be done in open court. — The examination of witnesses by the court.
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 Sec. 3 provides that a witness cannot refuse to answer questions material to the
different mode of answer, the answers of the witness shall be given orally. (1a) inquiry even if it may tend to establish a claim against him, but he may validly refuse
to answer:
Section 2. Proceedings to be recorded. — The entire proceedings of a trial or 1) Under right against self-incrimination;
hearing, including the questions propounded to a witness and his answers thereto, 2) Under right against self-degradation, if his answer will have a direct
the statements made by the judge or any of the parties, counsel, or witnesses with tendency to degrade his character
reference to the case, shall be recorded by means of shorthand or stenotype or by  EXCEPTIONS:
other means of recording found suitable by the court. 1) If such question is directed to the very fact at issue or to a fact from
which the fact at issue would be presumed;
A transcript of the record of the proceedings made by the official stenographer, 2) If it refers to his previous final conviction
stenotypist or recorder and certified as correct by him shall be deemed prima facie a
correct statement of such proceedings. (2a) In Sec. 3 (5), witness here does not only refer to the accused but also includes all
other witnesses who will testify in court. The rule says that it is not allowed for a

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Section 3. Rights and obligations of a witness. — A witness must answer questions, lawyer to ask a witness any question that may degrade his reputation.
although his answer may tend to establish a claim against him. However, it is the
right of a witness: Q: What is the rule on character evidence for witnesses? Is it allowed to present bad
moral character?
(1) To be protected from irrelevant, improper, or insulting questions, and from A: If the witness is the accused himself, evidence of bad moral character can only be
harsh or insulting demeanor; presented only in rebuttal. If the witness is only an ordinary witness, it is not allowed
(2) Not to be detained longer than the interests of justice require; to prove evidence of bad moral character.
(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 Sec. 14 of the same rule provides that the evidence of good moral character of a
offense unless otherwise provided by law; or witness is not admissible unless impeached.
(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.  For example: If during cross-examination, a witness is impeached. His
But a witness must answer to the fact of his previous final conviction for an offense. credibility was somehow destroyed. Therefore, since he was impeached,
(3a, 19a) during re-direct examination (TN: During direct examination, it is not
allowed to present character evidence or anything that will destroy the
witness’ reputation), you may now present evidence of good moral
GENERAL RULE: To be admissible, the testimony of the witness must be given in character.
open court.
Evidence | Final Exam Reviewer | Judge Martinez | A.Y. 2017-2018 | 2nd Semester 2

Impeachment of a witness – It means destroying his credibility. If a witness is Section 8. Re-cross-examination. — Upon the conclusion of the re-direct
impeached, it is during re-direct examination that you can present evidence of good examination, the adverse party may re-cross-examine the witness on matters stated
moral character. in his re-direct examination, and also on such other matters as may be allowed by the
court in its discretion. (13)
As a rule, questions that will degrade or destroy the reputation of a witness is not
allowed. However, there are instances wherein an opposing lawyer cannot help but
ask such kind of questions. What you have to do is raise a timely objection because it DIRECT EXAMINATION
will be waived.

 Example of a question to the fact of his previous final conviction for Direct examination is the examination-in-chief of a witness by the party presenting
an offense: Mr. Witness, isn’t it a fact that you had been previously him on the facts relevant to the issue.
convicted of a crime of frustrated homicide?
The witness here is being asked by the lawyer representing him. The questions that
The witness has to answer a question to the fact of his previous final conviction for are allowed are those that are answerable by facts other than YES or NO. It is during
an offense even if it will degrade his reputation. (As previously discussed, previous direct examination wherein the witness narrates the facts as he knew it happened
conviction of a witness does not disqualify him from testifying. However, it will affect based on his personal knowledge.
his credibility.)
Because of judicial affidavit rule, there is no more direct testimony in open court.
What are stated in the judicial affidavit already compose the answers to the direct
ORDER IN THE EXAMINATION OF AN INDIVIDUAL WITNESS examination. In court, you cannot ask additional questions anymore that are not in
the judicial affidavit.

Relevant provisions: The annexes are already written or indicated in the judicial affidavit and attached as
part of the testimony. This is why the judicial affidavit should already be complete in
Section 4. Order in the examination of an individual witness. — The order in which court. However, even if there is already a judicial affidavit, a witness still has to
the individual witness may be examined is as follows; testify in court. If he fails to testify, whatever is in the affidavit is considered hearsay.

CROSS-EXAMINATION
(a) Direct examination by the proponent;
(b) Cross-examination by the opponent;

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(c) Re-direct examination by the proponent; The one who conducts the questioning here is the counsel for the opposing party.
(d) Re-cross-examination by the opponent. (4) The line of questioning here is only limited to the matters covered during the direct
examination.
Section 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) Objectives of conducting cross-examination:

Section 6. Cross-examination; its purpose and extent. — Upon the termination of 1) To bring out facts favorable to counsel's client not established by the direct
the direct examination, the witness may be cross-examined by the adverse party as testimony – This is to test the truthfulness of the statements that were given
to many matters stated in the direct examination, or connected therewith, with during direct examination.
sufficient fullness and freedom to test his accuracy and truthfulness and freedom 2) To enable counsel to impeach or to impair the credibility of the witness – In
from interest or bias, or the reverse, and to elicit all important facts bearing upon the doing this, you must first lay the predicate.
issue. (8a)
Laying the predicate: It is during cross examination that leading questions are
Section 7. Re-direct examination; its purpose and extent. — After the cross- allowed. The witness is not allowed to narrate or explain his facts. Questions are only
examination of the witness has been concluded, he may be re-examined by the party answerable by YES or NO. If, for example, there are inconsistencies in the testimony
calling him, to explain or supplement his answers given during the cross-examination. of the witness and the ones written in the affidavit, laying the predicate is laying the
On re-direct-examination, questions on matters not dealt with during the cross- basis for questioning the credibility of the witness.
examination, may be allowed by the court in its discretion. (12)
Evidence | Final Exam Reviewer | Judge Martinez | A.Y. 2017-2018 | 2nd Semester 3

Q: For example, there is a witness for the prosecution. When he is already under their right to recall the witness again when he becomes available. It now becomes a
cross examination, the defense asks the judge for a continuance of the cross- matter of right.
examination for the next hearing. When it was reset for the next hearing, the witness
was absent for cross examination. What will happen? Situation: There was a justifiable reason why the testimony of the witness was not
A: If the reason is not attributable to the witness (i.e. He suddenly got sick.), there concluded. The lawyer made certain reservations during the trial to recall the witness
can be a resetting or the court may allow him to be cross-examined. This is because (e.g. when his health condition allows him to go to court.)
his testimony will be useless if he cannot be cross examined and his testimony will be
stricken from the records. TN: Once the reservation is made and it is approved by the court, then recalling the
witness becomes a matter of right. Otherwise, it has to be with leave of court.
GENERAL RULE: If a witness fails to appear in court for cross examination, his Because as far as the court is concerned the witness is already done with his
testimony will be stricken out from the records. testimony. And besides, because of the judicial affidavit rule, all of his statements are
EXCEPTION: If a witness was cross-examined but he was not able to finish, and for entered in the affidavit. Unless he would testify on newly discovered matters and it is
the next trial, he was not able to appear in court, his testimony will not be stricken only the same person who can testify.
out if:
1) His failure to appear is not attributable to him; TN: If it can be testified by another witness, it can be done through rebuttal.
2) In criminal cases, wherein he was already extensively examined;
3) The essential elements were already testified to; Q: Is there a difference between rebuttal and recalling a witness?
4) There is already partial cross-examination A: Rebuttal is presented after the defense rests its case. It is made by the
prosecution. The procedure is: prosecution – after he presents all of his witnesses, he
will make a formal offer and then he will rest his case  defense – after he presents
RE-DIRECT EXAMINATION all of his witnesses, he will make a formal offer and the he will rest his case UNLESS
Here, the witness has the opportunity to explain his answers from the cross THERE IS AN INVERTED TRIAL.
examination. On re-direct-examination, questions on matters not dealt with during
the cross-examination, may be allowed by the court in its discretion. When the defense rests his case, the judge will ask if the case will be submitted for
Re-direct examination is in reference to questions asked during the cross decision. Then the prosecution would manifest their intention to present rebuttal
examination. evidence.

Q: What is rebuttal evidence?


RE-CROSS EXAMINATION A: The evidence presented by the prosecution to oppose what the defense has

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presented.
This is left to the sound discretion of the court. The adverse party may re-cross-
examine the witness on matters stated in his re-direct examination, and also on such TN: Rebuttal evidence need not be made by the witnesses who already presented to
other matters as may be allowed by the court in its discretion. testify. After the rebuttal, there is also a sur-rebuttal. This is done by the defense.

This is in reference to the matters asked during the re-direct examination.


LEADING AND MISLEADING QUESTIONS
Relevant provision:
RECALLING WITNESS Section 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
Relevant provision:
allowed, except:
Section 9. Recalling witness. – After the examination of a witness by both sides has
(a) On cross-examination;
been concluded, the witness cannot be recalled without leave of the court. The court
(b) On preliminary matters;
will grant or withhold leave in its discretion, as the interests of justice may require.
(c) When there is difficulty in getting direct and intelligible answers from a
General Rule: Recalling a witness is not a matter of right because there is a need to witness who is ignorant, or a child of tender years, or is of feeble mind, or a
file a motion for leave of court. deaf-mute;
Exception: If the examination of the witness has not been concluded and the recall (d) Of an unwilling or hostile witness; or
of the witness is approved by the court, then the lawyer may make a reservation of
Evidence | Final Exam Reviewer | Judge Martinez | A.Y. 2017-2018 | 2nd Semester 4

(e) Of a witness who is an adverse party or an officer, director, or managing 5) When the witness is an adverse party or an officer, director, or managing
agent of a public or private corporation or of a partnership or association agent of a public or private corporation of a partnership association which is
which is an adverse party. an adverse party

A misleading question is one which assumes as true a fact not yet testified MQ is one which assumes as true a fact which is not yet testified to.
to by the witness, or contrary to that which he has previously stated. It is not
allowed.  For example: You make it appear that a witness has already said
something during the direct examination which he did not actually state.
Leading and misleading questions are objectionable.

General Rule: Leading questions are only allowed during cross examinations. IMPEACHMENT OF ADVERSE PARTY’S WITNESS
Exceptions: If the witness is a (1) child witness; (2) deaf-mute; (3) feeble-minded;
(4) unwilling or hostile witness. In such cases, leading questions are allowed. Relevant provision:
Section 11. Impeachment of adverse party’s witness. – A witness may be
Leading questions are questions which suggest to the witness the answer to which impeached by the party against whom he was called, by contradictory evidence, by
the examining party desires. evidence that his general reputation for truth, honesty, or integrity is bad, or by
evidence that he has made at other times statements inconsistent with his present
JCM: It is actually a trial technique. Counsels must be able to ask questions in a testimony, but not by evidence of particular wrongful acts, except that it may be
manner that it can be answered according to what he wants the witness to answer. shown by the examination of the witness, or the record of the judgment, that he has
You can destroy the witnesses’ credibility through this type of questioning. Cross- been convicted of an offense.
examinations are based on the direct testimonies of the witness and such direct Destroying the credibility of the witness of the opponent to make it appear that he is
testimony is found in the judicial affidavit. not, or has a reputation of not, telling the truth.

In the continuous trial rules, direct, cross, re-direct and re-cross examinations of a This is usually done during cross-examination.
single witness should be done in one hearing. Unless, there are really a lot of
questions to be asked that requires another hearing. One witness, one day. If the Q: How do you destroy the credibility of the witness of an opposing party?
witness does not appear, his presentation is waived. A: (1) Contradictory evidence
- Evidence or statements made by the same witness which is
Misleading questions are questions which assume as true certain facts that were not contradicting each other.

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actually testified by the witness. - Example: He made a statement during his direct examination. Then
during his cross examination, he made a statement contradictory to
TN: Counsels must be able to object immediately before the witness answers the what he said during the direct.
questions. If the witness answers the misleading question, the counsel should clarify - But this is not absolute. There are some people who have the tendency
the same during the re-direct. to forget especially if he is already of advanced age; or of tender age. It
TN: Misleading questions are usually asked during cross-examinations. is really up to the judge to impeach the credibility of the witness of the
adverse party.

(2) Evidence that his general reputation for truth, honesty, or integrity is bad.
LEADING QUESTIONS (LQ) vs MISLEADING QUESTIONS (MQ)
- Q: Isn’t this against the character evidence rule?
A: In this rule, what we are trying to prove is his bad reputation for
LQ are generally answerable by YES or NO. they suggest to the witness to answer. truth, honesty or integrity. In character evidence rule, what is not
This is not allowed during direct examination. They are only allowed in the following allowed is the giving of evidence of his character other than his bad
instances: reputation for truth, honesty or integrity because it has no relevance to
1) Cross examination the charge against the accused.
2) On preliminary matters
3) When the witness is ignorant, a child, or of feeble mind, or a deaf-mute (3) Prior inconsistent statements
4) When the witness is unwilling or hostile - This usually happens when he submitted documents but when asked by
the court, he makes inconsistent statements.
Evidence | Final Exam Reviewer | Judge Martinez | A.Y. 2017-2018 | 2nd Semester 5

- The Rules provide that you have to lay the predicate.


- Q: How do you lay the predicate?
IMPEACHMENT BY EVIDENCE OF INCONSISTENT STATEMENTS AND OF
A: It is by confronting the witness of his prior inconsistent statement. In GOOD CHARACTER OF WITNESS
other words, show him his prior inconsistent statement (e.g. minutes of
a meeting; affidavits; etc.) and make him explain. Relevant provisions:
Section 13. How witness impeached by evidence of inconsistent statements. —
Q: Does it still apply if the prior inconsistent statement was Before a witness can be impeached by evidence that he has made at other times
made during an interview with the media? statements inconsistent with his present testimony, the statements must be related to
A: If it is on record. 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.
(4) Record of judgment that he has been convicted of an offense. If the statements be in writing they must be shown to the witness before any
- Prior conviction will not disqualify the witness from testifying. However, question is put to him concerning them. (16)
if a witness is an ex-convict and the counsel is trying to destroy his
credibility through such previous conviction, the witness has to admit. Section 14. Evidence of good character of witness. — Evidence of the good
But it does not mean that he is disqualified to testify. UNLESS, the character of a witness is not admissible until such character has been impeached.
conviction involves a crime of moral turpitude that somehow tells about (17)
his integrity and honesty.
In Sec. 13, when the witness makes inconsistent statements, such as he executed
IMPEACHMENT OF OWN PARTY’S WITNESS statements in his affidavit and later on he is testifying different ones from those in his
document, you may point it out such inconsistencies made by the witness in court. By
Relevant provision: doing this, you are already destroying his credibility.
Section 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 In Sec. 14, as previously discussed, in general, character evidence is not allowed
witness is not allowed to impeach his credibility. subject to certain exceptions. Evidence of good character of a witness is not
A witness may be considered as unwilling or hostile only if so declared by admissible. However, if the witness has been impeached during cross-examination,
the court upon adequate showing of his adverse interest, unjustified reluctance to you can present evidence of his good character may be presented during re-direct
testify, or his having misled the party into calling him to the witness stand. examination.
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

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had been called by the adverse party, except by evidence of his bad character. He Other Relevant Provisions:
may also be impeached and cross-examined by the adverse party, but such cross- Section 15. Exclusion and separation of witnesses. — On any trial or hearing, the
examination must only be on the subject matter of his examination-in-chief. judge may exclude from the court any witness not at the time under examination, so
General Rule: The party is not allowed to impeach his own witness. that he may not hear the testimony of other witnesses. The judge may also cause
Exception: When the witness is considered as unwilling or hostile; or he is an witnesses to be kept separate and to be prevented from conversing with one another
adverse party or an officer, director, or managing agent of a public or private until all shall have been examined. (18)
corporation or of a partnership or association which is an adverse party.
Section 16. When witness may refer to memorandum. — A witness may be allowed
If the party’s own witness was just forced to become such and his testimony was to refresh his memory respecting a fact, by anything written or recorded by himself or
leaning to the adverse party’s side, the counsel can make a motion to declare the under his direction at the time when the fact occurred, or immediately thereafter, or
witness a hostile or unwilling witness. And when the court makes an order granting at any other time when the fact was fresh in his memory and knew that the same
such motion, the party’s own witness can be impeached. 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)
Evidence | Final Exam Reviewer | Judge Martinez | A.Y. 2017-2018 | 2nd Semester 6

Section 17. When part of transaction, writing or record given in evidence, the
remainder, the remainder admissible. — When part of an act, declaration, B. AUTHENTICATION AND PROOF OF DOCUMENTS
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, Relevant Provisions:
declaration, conversation, writing or record necessary to its understanding may also Section 19. Classes of Documents. — For the purpose of their presentation
be given in evidence. (11a) evidence, documents are either public or private.

Section 18. Right to respect writing shown to witness. — Whenever a writing is Public documents are:
shown to a witness, it may be inspected by the adverse party. (9a)
(a) The written official acts, or records of the official acts of the sovereign
 For example: In Sec. 15, when a witness is to be presented for both authority, official bodies and tribunals, and public officers, whether of the Philippines,
parties (either prosecution or defense), the opposing counsel may make a or of a foreign country;
manifestation to the court to exclude other witnesses. The judge will order (b) Documents acknowledge before a notary public except last wills and
the other witnesses that are to be excluded to exit from the courtroom. The testaments; and
reason may be that some witnesses should not be able to hear the other (c) Public records, kept in the Philippines, of private documents required by law
testimonies or talk to the other witnesses. This rule. However, applies only to the entered therein.
to the witnesses and not the parties who have the right to hear what the
witnesses will say. All other writings are private. (20a)

In Sec. 16, a witness may be allowed by the court to refer to a memorandum when it Section 23. Public documents as evidence. — Documents consisting of entries in
appears that there is really a need to refresh his memory. This is discretionary on the public records made in the performance of a duty by a public officer are prima
part of the court. The lawyer of the adverse party will be given the opportunity to facie evidence of the facts therein stated. All other public documents are evidence,
examine the document in order for him to be able to give the proper manifestation. even against a third person, of the fact which gave rise to their execution and of the
He may also cross-examine the witness upon the presentation of the document. date of the latter. (24a)

Q: If the adverse party sees that they can use the document as evidence, can they IMPORTANCE OF CLASSIFYING DOCUMENTS AS PUBLIC OR PRIVATE
use it as evidence against the party presenting it?
A: Yes, because the party has already presented it in court. However, it is only

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discretionary on the part of the adverse party and not mandatory. A public document does not require further authentication unlike a private document.

Sec. 17 is related to Sec. 16 and Sec. 18. Once a document is presented to prove a Authentication: It is the process of proving the due execution and
transaction or to show only a part thereof (i.e. A marriage contract is shown to prove genuineness of a document.
the date of the marriage), the adverse party can make use of the entire document
and question the witness about the other details in the document. JCM: When a document is said to be authenticated, it means that it is duly
executed and genuine. This is why in private documents, during trial, if one
 For example: You showed a contract of sale to confirm the names of the of the parties would like to present a private document for purposes of
parties. The other party may use it to question the identity of the lot, the identification by a witness who issued it (One way of authenticating a private
location, the selling price, the consideration, whether or not it was notarized document is by letting the person who issued it, testify in court.).
or registered, all the details of the document. Sometimes though, the parties stipulate and admit the authenticity and due
execution of the document.
Because as provided in Sec. 18, the other party will not be deprived to inspect the
document and question the other details therein. Q: What is the effect of the admission by the party of the authenticity of the
document? What will happen to the proceedings?
A: Stipulations are made to abbreviate the proceedings. The witness may
not testify anymore if he admits the authenticity of the document. The effect
is that you dispense with the presentation of such witness.
Evidence | Final Exam Reviewer | Judge Martinez | A.Y. 2017-2018 | 2nd Semester 7

PUBLIC DOCUMENTS Section 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
Public documents do not need to be authenticated. Documents consisting of entries substance, that the copy is a correct copy of the original, or a specific part thereof, as
made by a public officer in the performance of his duties are considered as prima the case may be. The attestation must be under the official seal of the attesting
facie evidence of the facts stated in the therein. officer, if there be any, or if he be the clerk of a court having a seal, under the seal of
such court. (26a)
 For example: NSO birth certificate
Section 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
WHAT ARE CONSIDERED AS PUBLIC DOCUMENTS (Sec. 19) kept, except upon order of a court where the inspection of the record is essential to
the just determination of a pending case. (27a)

1) The written official acts, or records of the official acts of the sovereign Section 27. Public record of a private document. — An authorized public record of a
authority, official bodies and tribunals, and public officers, whether of the private document may be proved by the original record, or by a copy thereof,
Philippines, or of a foreign country; attested by the legal custodian of the record, with an appropriate certificate that such
 Written official acts include documents issued by the different officer has the custody. (28a)
branches of the government. Decisions, records, documents that
consist of the decisions and acts of administrative bodies and Section 28. Proof of lack of record. — A written statement signed by an officer
tribunals are also public documents (also includes executive orders, having the custody of an official record or by his deputy that after diligent search no
administrative orders, department orders, etc.). record or entry of a specified tenor is found to exist in the records of his office,
2) Documents that are notarized except wills and testaments. accompanied by a certificate as above provided, is admissible as evidence that the
3) Public records, kept in the Philippines, of private documents required by law records of his office contain no such record or entry. (29)
to the entered therein
 These include those that are mentioned in Sec. 27. Section 29. How judicial record impeached. — Any judicial record may be
 For example: Baptismal certificate 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
In other words, the writing itself is not a public document. It is a private to the proceedings. (30a)
document. It is the record kept in the office that is a public record. In
authenticating such document, a certified true copy must be presented.

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Section 30. Proof of notarial documents. — Every instrument duly acknowledged or
proved and certified as provided by law, may be presented in evidence without
If a private document is kept in the public office or office of the further proof, the certificate of acknowledgment being prima facie evidence of the
Government, or it is incorporated into the files of a gov’t office, it becomes a execution of the instrument or document involved. (31a)
public document but it does not make the private writing itself a private
document so as to make it admissible without authentication. Section 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
Other Relevant Provisions: alteration. He may show that the alteration was made by another, without his
Section 24. Proof of official record. — The record of public documents referred to in concurrence, or was made with the consent of the parties affected by it, or was
paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by otherwise properly or innocent made, or that the alteration did not change the
an official publication thereof or by a copy attested by the officer having the legal meaning or language of the instrument. If he fails to do that, the document shall not
custody of the record, or by his deputy, and accompanied, if the record is not kept in be admissible in evidence. (32a)
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
Sec. 24 refers to the first type of public document under Sec. 19 which pertains to
agent or by any officer in the foreign service of the Philippines stationed in the
written official acts or records that are kept in the Government agencies or different
foreign country in which the record is kept, and authenticated by the seal of his
branches of the government or judicial/administrative bodies.
office. (25a)
Evidence | Final Exam Reviewer | Judge Martinez | A.Y. 2017-2018 | 2nd Semester 8

Q: How do you present an official record kept by a Government agency or office as  This is because when the court has no jurisdiction, any decision it makes is
evidence? Do you need to get the record from the office? considered null and void. This follows that whatever record or order coming
A: Sec. 24 tells us that a certification from the custodian or public official who has from such court is also not valid and must be impeached.
custody of such document is sufficient. This is because you cannot take the document  For example: Ejectment cases – They are within the jurisdiction of the 1st
or record from the office unless there is court order. level court. If the 2nd level court takes cognizance of such cases even if it
 Examples: has no jurisdiction, any order or decision coming from such court is null and
- Minutes of the Senate Inquiry void.
- A certificate of title – The original is with the owner. You don’t put 2) When there is collusion between the parties
markings on the certificate. What you do is you get a certified true copy For example: In a VAWC case where there is collusion and the court
from the ROD with its official seal. renders an order dismissing the case because there is already a compromise
agreement, the order may be impeached.
If the document or part of the document that you need to present is not in the 3) When there is fraud in the party offering the record, in respect to the
Philippines, you can get a certification from the embassy or consular office in which proceedings
the record is kept, with the seal of that office, and submit it as evidence.
In Sec. 30, documents that are notarized are considered as public documents.
Sec. 25 is one way of authenticating a document. To be admissible, since the original Without further proof, the certification or acknowledgment of the notary public is
cannot be marked, you can get an authenticated copy or certified true copy of the already a prima facie evidence of the due execution of the document.
document and then submit it to the court.
Sec. 31 pertains to alterations made in a document. There are some instances when
In Sec. 26, since there are certain public records that cannot be removed from the a document has alterations or erasures or markings. The other party may question
government office concerned, a certified true copy may suffice unless the that and the party presenting the document that has alteration must be able to
presentation of such original public record is essential, only then may a court issue an sufficiently explain to the court why there are alterations to the document. He may
order. manifest to the court that he was not the one who made the markings (i.e. that
another person has made the markings innocently and in good faith) and that they
Sec. 27 pertains to the provision in Sec. 19 which covers a public record of a private did not change or affect the validity of the document. Failure to prove that the
document. A private document becomes a public document when it is inserted in a alteration did not substantially change the meaning or validity of the document will
public record. make the document inadmissible.
 For example: PDS – It is a private document submitted to a government _____________________________________________________________________
office. Once submitted, it becomes a public record. PDS is not a public

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document but it is the record thereof that is a public document.
PRIVATE DOCUMENTS
Sec. 28 provides that a written statement signed by an officer having custody of an
official record that the record or entry from his office is not found, is already
Relevant Provisions:
admissible as evidence that the records of his office contain no such record or entry.
Section 20. Proof of private document. — Before any private document offered as
However, it is important to prove that diligent effort was exerted to locate such
authentic is received in evidence, its due execution and authenticity must be proved
documents for such written statement to be admissible.
either:
 For example: CENOMAR – This certification is to prove that there is no
(a) By anyone who saw the document executed or written; or
record of marriage. This is already admissible as evidence.
(b) By evidence of the genuineness of the signature or handwriting of the maker.

IMPEACHMENT OF JUDICIAL RECORD (Sec. 29) Any other private document need only be identified as that which it is claimed to be.
(21a)
There are three grounds for impeaching judicial record:
Section 21. When evidence of authenticity of private document not necessary. —
1) When the court where the judicial record emanated has no jurisdiction
Where a private document is more than thirty years old, is produced from the
 This includes orders, judgments, or any record that came from the court.
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)
Evidence | Final Exam Reviewer | Judge Martinez | A.Y. 2017-2018 | 2nd Semester 9

JCM: Certified true copy means that it is a certified true copy of the original. Certified
Section 22. How genuineness of handwriting proved. — The handwriting of a person machine copy is still a photocopy. It is only secondary evidence and must be certified
may be proved by any witness who believes it to be the handwriting of such person by the person who has custody of the original document. If it does not contain
because he has seen the person write, or has seen writing purporting to be his upon authentication from the person in custody of the original, it is not considered as an
which the witness has acted or been charged, and has thus acquired knowledge of authenticated document and is therefore not admissible.
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 C. OFFER AND OBJECTION
be genuine to the satisfaction of the judge. (23a)

HOW TO PROVE PRIVATE DOCUMENTS Relevant Provisions:


Section 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
1) It may be proved by anyone who saw the document executed or written. specified. (35)
 For example: A witness in an executed will
2) By evidence of the genuineness of the signature or handwriting of the maker Section 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.
This genuineness of the signature or handwriting of the maker can be Documentary and object evidence shall be offered after the presentation of a party's
proved by the maker itself. If not, it may be proved by the following (Sec. testimonial evidence. Such offer shall be done orally unless allowed by the court to be
22): done in writing. (n)
1) A witness who actually saw the person writing the instrument;
2) A witness familiar with such handwriting and who can give his opinion Section 36. Objection. — Objection to evidence offered orally must be made
thereon, such opinion being an exception to the opinion rule; immediately after the offer is made.
3) A comparison by the court of the questioned handwriting and admitted
genuine specimens thereof; and Objection to a question propounded in the course of the oral examination of a
4) Expert evidence witness shall be made as soon as the grounds therefor shall become reasonably
apparent.
Sec. 21 refers to an ancient document. An ancient document is a private document
that is more than 30 years old, is produced from the custody in which it would An offer of evidence in writing shall be objected to within three (3) days after notice

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naturally be found if genuine, and is unblemished by any alterations or circumstances of the offer unless a different period is allowed by the court.
of suspicion. Such document no longer needs to be authenticated.
___________________________________________________________________ In any case, the grounds for the objections must be specified. (36a)
Other Relevant Provisions:
Section 32. Seal. — There shall be no difference between sealed and unsealed Section 37. When repetition of objection unnecessary. — When it becomes
private documents insofar as their admissibility as evidence is concerned. (33a) 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,
Section 33. Documentary evidence in an unofficial language. — Documents written whether such objection was sustained or overruled, it shall not be necessary to
in an unofficial language shall not be admitted as evidence, unless accompanied with repeat the objection, it being sufficient for the adverse party to record his continuing
a translation into English or Filipino. To avoid interruption of proceedings, parties or objection to such class of questions. (37a)
their attorneys are directed to have such translation prepared before trial. (34a)
Section 38. Ruling. — The ruling of the court must be given immediately after the
Sec. 32 refers to private documents. A public document necessarily has an official objection is made, unless the court desires to take a reasonable time to inform itself
seal. A private document, whether or not has a seal, still needs to be authenticated. 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
Sec. 33 provides that when a document presented is in another language, it is also situation presented by the ruling.
required to present a translated version of such document. It must be accompanied
with a translation in a separate document or record.
Evidence | Final Exam Reviewer | Judge Martinez | A.Y. 2017-2018 | 2nd Semester 10

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 If not objected to timely, the objection to such evidence is deemed waived.
one or some of them must specify the ground or grounds relied upon. (38a)
Repetition of objection / Continuing objection:
Section 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  For example: During trial, counsel of the party keeps asking leading
objection is found to be meritorious, the court shall sustain the objection and order questions, or his line of questioning is composed of leading questions. If you
the answer given to be stricken off the record. have to object continuously on the same ground, you can manifest to the
On proper motion, the court may also order the striking out of answers which are court your “Omnibus Objection” or continuous objection.
incompetent, irrelevant, or otherwise improper. (n) Sec. 38 provides that the court is required to make a ruling as soon as the objection
is made. Right there and then, the court should rule whether the objection is
OFFER OF EVIDENCE sustained or overruled. The reason for the ruling of the objection is not required to 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
If the evidence is testimonial, the offer is made before the calling of the witness or relied upon.
before the witness testifies. Offer is made by stating the purpose of the evidence. If
the evidence is documentary, offer is made after the presentation of all the Sec. 39 provides an instant wherein a timely objection was not made and the witness
witnesses and before you rest your case. The purpose is also stated when offering has answered the question before you could have objected. You may move for the
documentary evidence. court to strike the answer from the record. The court if it finds that the objection and
motion for striking out is meritorious, or if the answer is incompetent, irrelevant or
Under continuous trial rule, the general rule is that offer of documentary evidence is improper, the court may allow the striking out.
also made orally. However, there are some cases wherein there are voluminous
documents, and in such cases, the court may allow a written formal offer of all the
exhibits. TENDER OF EXCLUDED EVIDENCE (Very Important Provision)

Relevant Provision:
OBJECTION TO EVIDENCE Section 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
If it is testimonial evidence, objection must be made before the witness answers. The the record the name and other personal circumstances of the witness and the

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moment that you feel that the question is objectionable, you need to object before substance of the proposed testimony. (n)
the witness can answer. If he is able to answer, it will already be part of the record.
There can be tender of excluded evidence when the court has already ruled on your
If it is documentary evidence, objection must be made within three (3) days after offer.
notice of the offer or within a different period allowed by court.
 For example: During your formal offer of witness, there is an objection
 For example: During trial, there are documents that will be identified and form the other party on the ground that the testimony and the statement
marked. If you believe that the document is inadmissible, you need to written in the affidavit of the witness are inconsistent and therefore
object. When it comes to the formal offer, if what is being offered is considered hearsay. The motion is granted by the court and the witness is
testimonial evidence such as “Your Honor, we would like to present the not allowed to testify. His testimony is excluded evidence.
testimony of this witness.” Before you start your examination of the witness,
you make the objection (i.e. Your Honor, we object to the presentation of For documentary exhibits, there is exclusion during formal offer and there is an
the testimony of this witness because it is hearsay based on the testimony objection. There shall also be a ruling issued by the court.
written on his judicial affidavit.”). Do not allow that the witness will be able
to identify his affidavit.  For example: The court allowed that “Based on the following exhibits and
after taking into consideration the comments and objections of the
If the formal offer is made orally, the objection must also be done orally. When you opposition, the following exhibits are admitted in evidence: Exhibits A, B, C,
formally offer, what you pray for is the admission of the evidence for it to be D, E. However, Exhibits F and G are denied admission, the same being
considered immediately by the court.
Evidence | Final Exam Reviewer | Judge Martinez | A.Y. 2017-2018 | 2nd Semester 11

irrelevant, incompetent and inadmissible.” The ones denied admissions are


the excluded evidence. In criminal cases, the quantum of evidence is proof beyond reasonable doubt. It
means that even if there is only little doubt of the guilt, the accused is entitled to
JCM: What you will do is to file a tender of excluded evidence. The purpose of this is acquittal. The burden of proof lies with the prosecution. It must not rely on the
for future appeal. Because the court did not admit the evidence, those will not be weakness of its defense but on the strength of its evidence. All the elements of the
included. Chances are you might lose the case on the ground of insufficiency of crime must be proven by the prosecution. If the evidence of the prosecution is
evidence. That is then when you appeal. In your tender of excluded evidence, there insufficient, the defense can file a demurrer to evidence, which is a motion to dismiss
will be a prayer that the documents excluded will be attached and be included in the based on insufficiency of evidence. If the demurrer is not granted, the rule is that the
records of the case. When you appeal and the records of the case are transmitted, defense can still present its evidence but there has to be a leave of court. What the
they will still be included therein and may be considered by the appellate court. If the lawyer should do when he files a leave of court, is that the demurrer should already
evidence is oral or the testimony of witness is excluded, you have to state in your be attached.
tender the name of the witness, the purpose of the testimony, and the nature of his
testimony. The reason for Sec. 3 is that it seeks to avoid the risk that extrajudicial confession
may have been obtained through force, threat or intimidation. That is why it is
preferable that the confession is done judicially because the court will be able to
RULE 133 identify the confession.

Corpus delicti means “body of the crime.” If it is a murder case, the corpus delicti is
WEIGHT AND SUFFICIENCY OF EVIDENCE the corpse of the victim. For murder cases to prosper, you have to present the dead
body. In illegal possession of firearms, the corpus delicti is the unlicensed firearm
itself. If an extrajudicial confession is corroborated by corpus delicti, then it shall be a
Relevant Provisions: sufficient ground for conviction.
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 CIRCUMSTANTIAL EVIDENCE
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 Relevant Provision:
testify, the probability or improbability of their testimony, their interest or want of Section 4. Circumstantial evidence, when sufficient. — Circumstantial evidence is

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interest, and also their personal credibility so far as the same may legitimately appear sufficient for conviction if:
upon the trial. The court may also consider the number of witnesses, though the (a) There is more than one circumstance;
preponderance is not necessarily with the greater number. (1a) (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
Section 2. Proof beyond reasonable doubt. — In a criminal case, the accused is beyond reasonable doubt. (5)
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 Circumstantial evidence is distinguished from direct evidence as evidence that may
of error, produces absolute certainly. Moral certainly only is required, or that degree indirectly prove a crime or an issue of a fact. It is not direct evidence that links the
of proof which produces conviction in an unprejudiced mind. (2a) accused to the crime.

Section 3. Extrajudicial confession, not sufficient ground for conviction. — An Circumstantial evidence can be used to sustain conviction provided that the requisites
extrajudicial confession made by an accused, shall not be sufficient ground for are met.
conviction, unless corroborated by evidence of corpus delicti. (3)
REQUISITES FOR CIRCUMSTANTIAL EVIDENCE TO BE SUFFICIENT (Sec. 4)
Preponderance of evidence is the quantum of evidence that is required in civil
cases. It does not necessarily mean the number or quantity of evidence. Superior
weight or preponderant evidence covers not only the number of witnesses but also 1) There is more than one circumstance;
other factors such as the manner of testifying of the witnesses, or the probability of 2) The facts must be proven;
their testimonies.
Evidence | Final Exam Reviewer | Judge Martinez | A.Y. 2017-2018 | 2nd Semester 12

3) The totality of all the circumstances must produce conviction beyond respective parties, but the court may direct that the matter be heard wholly or partly
reasonable doubt. on oral testimony or depositions. (7)

 For example: In a murder case, there is no eyewitness, there are no Q: Is cumulative evidence synonymous with corroborative evidence?
fingerprints, and there is no other evidence in the crime scene. A wife was A: No. Corroborative evidence means that it is evidence that supports the
mysteriously killed and the police are trying to point the husband as the previous evidence presented while cumulative evidence merely states the same
suspect. However, later on, upon investigation, emails were found and it testimonies or the same kind of evidence.
was discovered that the wife was insured for 20 million and the husband
was in debt or maybe that he had a paramour. The inference is that the Sec. 6 tells us that the court has discretion to allow or not additional evidence
husband killed the wife for her insurance. In a domestic case like this, the specially so if the evidence is merely cumulative or more or less the same as the
first ones who are considered as suspects are the housemates. In this case, previous evidence presented. However, the discretionary powers of the court should
it is the husband. not be exercised arbitrarily or with grave abuse of discretion.

JCM: These circumstances may be looked into by the investigators. However, they Q: Is a motion synonymous with a manifestation?
must be proven and when taken altogether will sustain a conviction. Or for example A: No. A manifestation is making a statement on certain matters. A motion is
in a case where a man was found dead in his house and there are n other people or when you are moving for the court to grant something. It raises certain matters or
CCTV. The investigators however found out by asking the neighbors that earlier in the facts that are not yet part of the record.
morning before the man was found dead, he scolded a helper who was borrowing
money from him. And then after the discovery of the body, the helper cannot be There are some evidence that are included on the motion that are not yet art of the
found anymore because he escaped. These circumstances can be pieced together as record. The court, in its discretion, may hear or require the parties to support the
a puzzle. Even if there is no evidence linking the accused to the crime, the facts that are alleged in the motion by affidavits or depositions. It may also require
circumstantial evidence may be taken into consideration. the parties to submit a comment or opposition.

SUBSTANTIAL EVIDENCE JCM: There are two kinds of motion: litigious motion and non-litigious motion.
Litigious motion is one that needs a hearing such as motion for reconsideration or
motion for leave. Non-litigious motion is one that does not need for hearing such
Relevant Provision: as motion for postponement. When we say evidence on motion, these are additional
Section 5. Substantial evidence. — In cases filed before administrative or quasi- evidence included in the motion that are not yet part of the record.
judicial bodies, a fact may be deemed established if it is supported by substantial

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evidence, or that amount of relevant evidence which a reasonable mind might accept Q: Is it necessary that the evidence or documents attached to the motion be part of
as adequate to justify a conclusion. (n) the formal offer?
A: No. Evidence attached to the motion need not be part of the formal offer. Once
This provision talks about the quantum of evidence in administrative or quasi-judicial the motion is granted by the court, they will be deemed part of the evidence.
bodies which is substantial evidence – that amount of relevant evidence which a _____________________________________________________________________
reasonable mind might accept as adequate to justify a conclusion.
SPECIAL LAWS ON EVIDENCE
OTHER PROVISIONS
RULES ON DNA EVIDENCE
Section 6. Power of the court to stop further evidence. — The court may stop the A.M. NO. 06-11-5-SC
introduction of further testimony upon any particular point when the evidence upon it
This is a very young rule.
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)
Section 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
Evidence | Final Exam Reviewer | Judge Martinez | A.Y. 2017-2018 | 2nd Semester 13

(c) The testing would probably result in the reversal or modification of the
APPLICATION FOR DNA TESTING ORDER judgment of conviction.

Relevant provision: JCM: In one case, a rape case was filed and the accused was said to be the father of
Section 4. Application for DNA Testing Order. – The appropriate court may, at any the child born to the victim. But the accused strongly contested paternity saying that
time, either motu proprio or on application of any person who has a legal interest in he was innocent. He claims that he was the uncle of the victim. Unfortunately, the
the matter in litigation, order a DNA testing. Such order shall issue after due hearing case happened before the promulgation of the Rule on DNA Evidence. So he
and notice to the parties upon a showing of the following: appealed after conviction by the lower court. It reached the SC. Luckily, while the
(a) A biological sample exists that is relevant to the case; case was on appeal, the Rule on DNA Evidence came about. Since he was really
(b) The biological sample: insisting on his innocence, the lawyers handling his case tried to convince the matter
i. Was not previously subjected to the type of DNA testing now to let the child go through DNA testing but the mother refused.
requested; or
ii. Was previously subjected to DNA testing, but the results may So what they did was, they tried to locate the child. The child was already 7 years
require confirmation for good reasons; old. The lawyers found her playing with some other children outside of their house.
(c) The DNA testing uses a scientifically valid technique; They asked the children to spit on plastic containers. 3 were boys and 2 were girls.
(d) The DNA testing has the scientific potential to produce new information that They were able to narrow down the samples. The remaining 2 samples both turned
is relevant to the proper resolution of the case; and out negative. Simply put, the accused was not the father.
(e) The existence of other factors, if any, which the court may consider as
potentially affecting the accuracy of integrity of the DNA testing. TN: If the DNA results turned out negative, the person is already excluded. If it
turned out positive, it does not necessarily conclude parental relationship but there is
This Rule shall not preclude a DNA testing, without need of a prior court a probability. It has to be 99.999% matching.
order, at the behest of any party, including law enforcement agencies, before a suit
or proceeding is commenced. In this case, it did not match at all. The result appeared while on appeal before the
_____________________________________________________________________ SC. The SC dismissed the case as a result.

TN: Even if there is no pending case in court, parties may still request for DNA TN: In another case, the DNA Rules provide for protection to fathers from
testing. It may be available at the behest of any party, including law enforcement harassment suits.
agencies, even before a suit or proceeding is commenced.

POST-CONVICTION DNA TESTING -- REMEDY IF THE RESULTS ARE

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POST-CONVICTION DNA TESTING
FAVORABLE TO THE CONVICT
Relevant provision:
Relevant provisions:
Section 6. Post-conviction DNA Testing. – Post-conviction DNA testing may be
Section 10. Post-conviction DNA Testing – Remedy if the Results Are Favorable to
available, without need of prior court order, to the prosecution or any person
the Convict. – The convict or the prosecution may file a petition for a writ of habeas
convicted by final and executory judgment provided that (a) a biological sample
corpus in the court or origin if the results of the post-conviction DNA testing are
exists, (b) such sample is relevant to the case, and (c) the testing would probably
favorable to the convict. In the case the court, after due hearing finds the petition to
result in the reversal or modification of the judgment of conviction.
be meritorious, it shall reverse or modify the judgment of conviction and order the
release of the convict, unless continued detention is justified for a lawful cause.
Even after the accused was convicted in a criminal case, DNA Testing will still be
available without need of prior court order. A similar petition may be filed either in the Court of Appeals or the Supreme Court, or
with any member of said courts, which may conduct a hearing thereon or remand the
Requirements: petition to the court of origin and issue the appropriate orders.
(a) Biological sample exists;
- There has to be a specimen for sampling Section 11. Confidentiality. – DNA profiles and all results or other information
(b) Such sample is relevant to the case; and obtained from DNA testing shall be confidential. Except upon order of the court, a
- It would be relevant to the case (e.g. determination of paternity; rape DNA profile and all results or other information obtained from DNA testing shall only
case)
Evidence | Final Exam Reviewer | Judge Martinez | A.Y. 2017-2018 | 2nd Semester 14

be released to any of the following, under such terms and conditions as may be set with the Rules on DNA evidence and that there was no possible contamination of the
forth by the court: samples, and the chain of custody was also properly established, then the finding was
that Umanito is the father of the child that was born after the rape.
(a) Person from whom the sample was taken;
(b) Person from whom the sample was taken; As a result, Umanito later filed a motion to withdraw the appeal. So the court
(c) Lawyers of private complainants in a criminal action; considered the appeal withdrawn and their decision was already deemed final.
(d) Duly authorized law enforcement agencies; and
(e) Other persons as determined by the court. Herrera vs. Alba
This is a petition for compulsory recognition, support and damages. The 13 year old
Whoever discloses, utilizes or publishes in any form any information son, Rosendo Alba, who is represented by the mother, filed the petition in court. The
concerning a DNA profile without the proper court order shall be liable for indirect father contested the paternity. He said he is not the father and etc.
contempt of the court wherein such DNA evidence was offered, presented or sought
to be offered and presented. In paternity cases, there are four procedural aspects which has to be proven: (1)
There should be a prima facie case. In traditional paternity cases, prima facie case
Where the person from whom the biological sample was taken files a written exists if a woman declares that she had sexual relations with the putative father. (2)
verified request to the court that allowed the DNA testing for the disclosure of the There are affirmative defenses available to the putative father. In our jurisdiction,
DNA profile of the person and all results or other information obtained from the DNA there are two affirmative defenses available: First, the putative father may show
testing, he same may be disclosed to the persons named in the written verified incapability of sexual relations with the mother because of either physical absence or
request. impotency. Second, he may also show that the mother had sexual relations with
If for example the DNA test after conviction came out favorable to the convict, the other men. (3) Presumption of legitimacy. A child born to a husband and wife during
convict or the prosecution may file a petition for writ of habeas corpus in the court of a valid marriage is presumed legitimate. (4) Physical resemblance between the
origin so that he may be released immediately. putative child and the father. Even the court can see that.

However, if the accused is still in detention for other cases, he cannot be released Another point that was established in this case is that DNA Tests is not a violation of
since there are still other lawful causes to justify his continued detention. the constitutional right against self-incrimination. The SC ruled that this right is only
applicable in testimonial evidence. The defendant can be required to submit to a test
A similar petition may be filed in the CA or the SC, wherever the case may be on to require him to extract some DNA samples to determine paternity.
appeal, or with any member of said courts which may conduct a hearing thereon or
remand the petition to the court of origin and issue the appropriate order. Jesse Lucas vs. Jesus Lucas

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This is a petition to establish illegitimate filiation. The petitioner is an illegitimate
TN: DNA profiles and results are ALWAYS CONFIDENTIAL. It shall only be released to child. The grounds relied upon by the respondent for the dismissal of the case were:
specific persons, those that are enumerated under Section 11. (1) there was no jurisdiction because he was not served the summons. (2) There was
a defect in the substance of the petition to establish illegitimate filiation which is
equivalent to a failure of the cause of action.
RULES ON DNA EVIDENCE CASES
Unfortunately, the four procedural aspects mentioned in the previous case was not
People vs. Umanito sufficiently proven. Specifically the first aspect which is the prima facie case. Whereas
This case happened in 2007. The Rules on DNA was promulgated on October 2007. to the jurisdiction of the court, the SC said that since this is a petition to establish
The resolution of this case was issued on October 26 when the DNA Rules was filiation, this is an action in rem. Publication of notice is to the whole world. Through
already in place. In other words, this is the very first case where the court applied the publication, all interested parties are deemed notified. In other words, summons will
DNA Rule on Evidence. not deprive the court of its jurisdiction to try and decide the case. Service of
summons or notices made to the defendant is not for the purpose of vesting the
The accused was charged for rape. A child was born out of that act but he was court with jurisdiction but merely to satisfy the due process requirement.
denying it. He had an alibi saying that while he courted the victim, they were never
sweethearts. So there was actually no sexual relationship. But when the DNA results As to the cause of action, the SC ruled that there was a lack of prima facie case.
came it, it resulted to a complete match of the 15 samples that were tested. Since this is a case of paternity or filiation, there is a need to comply with the four
Therefore, it resulted to a 99.999% of probability that the accused Umanito is the procedural aspects. It is not enough that the prima facie case will be only alleged in
biological father. After proving that the proper procedure was followed in accordance the initiatory pleading. It has to be proven during the trial. The SC ruled that their
Evidence | Final Exam Reviewer | Judge Martinez | A.Y. 2017-2018 | 2nd Semester 15

consent to the DNA Test was premature, and dangerous even. The allegations of (h) “Electronic document” refers to information or the representation of
sexual relationship in the pleadings is not sufficient. It has to be proven during the information, data, figures, symbols or other modes of written expression,
trial. It sees the danger of allowing an absolute DNA testing to a compulsory described or however represented, by which a right is established or an
recognition test even if the plaintiff failed to establish a prima facie proof. obligation extinguished, or by which a fact may be proved and affirmed,
which is received, recorded, transmitted, stored processed, retrieved or
Besides the question of whether a prima facie showing is necessary for the court to produced electronically. It includes digitally signed documents and any print-
issue a DNA testing order is discretionary on the court. In cases in which paternity is out or output, readable by sight or other means, which accurately reflects
contested and a party to the action refuses to voluntary undergo a blood test, which the electronic data message or electronic document. For purposes of these
happened in this case, there should be a show cause hearing. It must be held in Rules, the term “electronic document” may be used interchangeably with
which the court can determine whether there is sufficient evidence to establish a electronic data message”.
prima facie case which warrants issuance of a court order for blood testing.
(k) “Ephemeral electronic communication” refers to telephone conversations,
Lejano vs. People of the Philippines; Pp vs. Hubert Webb text messages, chatroom sessions, streaming audio, streaming video, and
Webb was willing to have his semen specimen tested because it would somehow other electronic forms of communication the evidence of which is not
prove that he is really innocent if it would not match with the semen specimen found recorded or retained.
in Carmela’s body. Unfortunately, when NBI was asked as to where the semen Electronic data message is what is being referred to here as electronic evidence.
specimen is, it was not in the NBI’s possession. They thought it was with the court. Information that is generated, sent, or received by electronic, optical or similar
However, the court also claimed that it was not among the evidences that were means.
presented and marked as evidence.
JCM: One of the cases questions the category of photocopies whether or not these
The NBI and the Court was supposed to be held accountable but the SC ruled that are considered as electronic evidence. Electronic data message may be
the State is not under obligation to preserve evidence. Although the semen specimen interchangeably used with electronic document. But electronic document is one which
was a critical evidence that would prove or disprove Webb’s presence in the crime is received, recorded, transmitted, stored processed, retrieved or produced
scene since he was the person accused by Jessica Alfaro who claimed be present at electronically.
the scene.
Q: What is ephemeral electronic communication?
Besides the Rule on DNA Evidence was not yet existed and did not have an effect to A: This includes text messages, chatroom sessions. If you are able to get a copy of
the case at that time. text messages, screenshots of your chatroom sessions, streaming audio, streaming
video, these forms part of ephemeral electronic communication that may be

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But the real ground for the dismissal of the accused was the inconsistency of the considered as electronic evidence.
testimony of their star witness, Jessica Alfaro. Evidence to be credible must also come
from a credible source, which Alfaro was not. She is proven to be a witness who was ELECTRONIC DOCUMENTS
proven to have made so many inconsistent statements and she also had a
relationship with one of the NBI agents. Webb was acquitted after 15 years. Relevant provisions:
Section 2, Rule 3. Admissibility. - An electronic document is admissible in evidence
RULES ON ELECTRONIC EVIDENCE if it complies with the rules on admissibility prescribed by the Rules of Court and
related laws and is authenticated in the manner prescribed by these Rules.
A.M. NO. 01-7-01-SC Section 3, Rule 3. Privileged communication. – The confidential character of a
privileged communications is not solely on the ground that it is in the form of an
Relevant provisions:
electronic document.
Section 1, Rule 1. Scope. – Unless otherwise provided herein, these Rules shall
TN: To be admissible, the evidence must also be COMPETENT AND RELEVANT
apply whenever an electronic data message, as defined in Rule 2 hereof, is offered or
because these are the guidelines of admissibility as prescribed by the Rules of Court.
used in evidence.
TN: The privileged communication rule will also apply to electronic evidence. In other
Section 1, Rule 2. Definition of Terms. –
words, if there are confidential information communicated by a client to the lawyer,
(g) “Electronic data message” refers to information generated, sent,
or by the doctor to the patient, or vice versa, through electronic evidence (email,
received or stored by electronic, optical or similar means.
chat, text message), the Rule still applies. It is privileged not merely because it is in
the form of an electronic document. It is privileged because the Rules tell us that
Evidence | Final Exam Reviewer | Judge Martinez | A.Y. 2017-2018 | 2nd Semester 16

communication between this people is privileged especially if it is confidential in If the authenticity of such documents are questioned in court, or if it would be unjust
nature. or inequitable to admit a copy in view of the original, it would be difficult for the court
to admit the copies or duplicates of the electronic documents.

BEST EVIDENCE RULE AUTHENTICATION OF ELECTRONIC DOCUMENTS

Relevant provisions: Relevant provisions:


Section 1, Rule 4. Original of an electronic document. – An electronic document Section 1, Rule 5. Burden of proving authenticity. – The person seeking to
shall be regarded as the equivalent of an original document under the Best Evidence introduce an electronic document in any legal proceeding has the burden of proving
Rule if it is a printout or output readable by sight or other means, shown to reflect its authenticity in the manner provided in this Rule.
the data accurately. Section 2, Rule 5. Manner of authentication. – Before any private electronic
Section 2, Rule 4. Copies as equivalent of the originals. – When a document is in document offered as authentic is received in evidence, its authenticity must be
two or more copies executed at or about the same time with identical contents, or is proved by any of the following means:
a counterpart produced by the same impression as the original, or from the same
matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or (a) by evidence that it had been digitally signed by the person purported to
by other equivalent techniques which is accurately reproduces the original, such have signed the same;
copies or duplicates shall be regarded as the equivalent of the original. (b) by evidence that other appropriate security procedures or devices as
may be authorized by the Supreme Court or by law for authentication of
Notwithstanding the foregoing, copies or duplicates shall not be admissible to the electronic documents were applied to the document; or
same extent as the original if: (c) by other evidence showing its integrity and reliability to the satisfaction
of the judge.
(a) a genuine question is raised as to the authenticity of the original; or
(b) in the circumstances it would be unjust or inequitable to admit a copy in
lieu of the original. Digital signatures are used to identify the origin or source of the document. Also, we
The best evidence rule also applies to electronic documents. can make use of certain security procedures or devices authorized by the SC in order
to authenticate the electronic document. Or other documents that would show its
Q: How do you obtain the best evidence of an electronic document? integrity and reliability to the satisfaction of the judge.
A: By printouts or output readable by sight or other means shown to reflect data
accurately. JCM: It is not sufficient to just present the email that you received; nor present just

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pictures you grabbed from Facebook to show that you husband has a relationship
TN: Copies of the original document can also be classified as an original document if with another woman.
they have been obtained, printed or executed about the same time with identical
contents as the first copy. A duplicate may be considered as equivalent of the TN: The person presenting the electronic evidence will also has the burden of proving
original. It will not be considered a secondary evidence. Therefore, still the best its authenticity. There has to be evidence to prove the integrity and reliability of the
evidence. certain document especially its source.

However, it will not be considered or regarded as equivalent to the original, and EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS
therefore not admissible, if there is a genuine question as to the authenticity of the
original. Relevant provision:
Section 1, Rule 7. Factors for assessing evidentiary weight. - In assessing the
JCM: At present, courts are very cautious in admitting photographs as evidence evidentiary weight of an electronic document, the following factors may be
especially the digitally produced photographs because it is now very easy to edit considered:
pictures. It’s also the same with electronically produced documents especially the
sources. It is very easy to create e-mail accounts and name any person as the owner (a) The reliability of the manner or method in which it was generated, stored or
thereof. However, there are ways and means to know the real sources of such communicated, including but not limited to input and output procedures, controls,
accounts. tests and checks for accuracy and reliability of the electronic data message or
document, in the light of all the circumstances as well as any relevant agreement;
Evidence | Final Exam Reviewer | Judge Martinez | A.Y. 2017-2018 | 2nd Semester 17

(b) The reliability of the manner in which its originator was identified; Even if it was not person who input the data who testified in court, or it was only the
custodian who testified, or any other qualified witness for that matter, it will be
(c) The integrity of the information and communication system in which it is recorded admissible because the hearsay evidence rule is not applicable.
or stored, including but not limited to the hardware and computer programs or
software used as well as programming errors; Q: How will you counter this rule?
A: If it is found out that the source of information is not trustworthy, or the method
(d) The familiarity of the witness or the person who made the entry with the by which it was taken is questionable, the presumption may be overcome.
communication and information system;
AUDIO, PHOTOGRAPHIC, VIDEO AND EPHEMERAL EVIDENCE
(e) The nature and quality of the information which went into the communication and
information system upon which the electronic data message or electronic document Relevant provisions:
was based; or Section 1, Rule 11. Audio, video and similar evidence. – Audio, photographic and
video evidence of events, acts or transactions shall be admissible provided is shall be
(f) Other factors which the court may consider as affecting the accuracy or integrity shown, presented or displayed to the court and shall be identified, explained or
of the electronic document or electronic data message. authenticated by the person who made the recording or by some other person
Q: How do you assess the evidentiary weight of electronic documents? competent to testify on the accuracy thereof.
A: There are factors to be considered by the court. The reliability of the manner and Section 2, Rule 11. Ephemeral electronic communication. – Ephemeral electronic
the method. Its originator must be identified (e.g. through IP address) communications shall be proven by the testimony of a person who was a party to the
same or has personal knowledge thereof. In the absence or unavailability of such
Example: Sextortion Cases happening through video chats. Because it resulted to the witnesses, other competent evidence may be admitted.
suicide of the victim, they found out that the chat mate was from the Philippines by
looking at the IP address. A recording of the telephone conversation or ephemeral electronic communication
shall be covered by the immediately preceding section.
Another factor is the nature and quality of the information which went into the
communication and other factors which the court may consider as affecting the If the foregoing communications are recorded or embodied in an electronic
accuracy or integrity of the electronic document. document, then the provisions of Rule 5 shall apply.
Text messages are considered ephemeral evidence. For as long it is explained or
BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE authenticated by the person who made the recording or by some other person
competent to testify on the accuracy of the text message, it can be admissible.

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Relevant provisions:
Section 1, Rule 8. Inapplicability of the hearsay rule. – A memorandum, report, The testimony of a person who was a party to the same or has personal knowledge
record or data compilation of acts, events, conditions, opinions, or diagnoses, made will be enough to authenticate. But if the communications are recorded, or embodied
by electronic, optical or other similar means at or near the time of or from in an electronic document, then Rule 5 applies for authentication of evidence.
transmission or supply of information by a person with knowledge thereof, and kept
in the regular course or conduct of a business activity, and such was the regular RULES ON ELECTRONIC EVIDENCE CASES
practice to make the memorandum, report, record, or data compilation by electronic,
optical or similar means, all of which are shown by the testimony of the custodian or People vs. Enojas
other qualified witnesses, is excepted from the rule or hearsay evidence. In this case, the rule on electronic evidence was already applied because part of the
Section 2, Rule 8. Overcoming the presumption. – The presumption provided for in messages used by the prosecution were the text messages. What was presented by
Section 1 of this Rule may be overcome by evidence of the untrustworthiness of the the prosecution was merely a transcript of the text messages between Enojas and
source of information or the method or circumstances of the preparation, some of the co-accused. But the defense were saying that they are entitled to an
transmission or storage thereof. acquittal because the evidence in the text messages were inadmissible.
In other words, documents or electronic documents that are kept in the regular
course or conduct of a business activity is admissible even if the one who will testify But applying on the rules on electronic evidence especially Rule 11, Section 2 on
to authenticate it will only be the custodian. ephemeral electronic communication since text messages fall under this category. It
provides that ephemeral electronic communication shall be proven by the testimony
of a person who was a party to the same or by a person who has a personal
Evidence | Final Exam Reviewer | Judge Martinez | A.Y. 2017-2018 | 2nd Semester 18

knowledge thereof. The police officer (Cambi) was a party himself to the text It shall also be unlawful for any person, be he a participant or not in the act or acts
messages with the other co-accused while posing as Enojas. Also, being the one who penalized in the next preceding sentence, to knowingly possess any tape record, wire
has been communicating with the other co-accused, he has personal knowledge of record, disc record, or any other such record, or copies thereof, of any
the text messages. In the absence or unavailability of such witnesses, other communication or spoken word secured either before or after the effective date of
competent evidence may be admitted. Here, Cambi was considered to be a this Act in the manner prohibited by this law; or to replay the same for any other
competent witness to testify because he has personal knowledge of the text person or persons; or to communicate the contents thereof, either verbally or in
messages. 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
The defense also made mention of circumstantial evidence. Part of their defense was any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall
that they cannot be convicted because the evidence were merely circumstantial. They not be covered by this prohibition.
were not able to capture any of the accused. But the SC ruled that for as long as all
the requirements for circumstantial evidence are present, it will be sufficient for Section 2. Any person who willfully or knowingly does or who shall aid, permit, or
conviction. The requirements are: (1) there is more than one circumstance; (2) the cause to be done any of the acts declared to be unlawful in the preceding section or
fact from which the inferences derived are proven; and (3) the combination of all the who violates the provisions of the following section or of any order issued thereunder,
circumstances is such as to produce a conviction beyond reasonable doubt. Here, the or aids, permits, or causes such violation shall, upon conviction thereof, be punished
prosecution were able to prove all the requirements. by imprisonment for not less than six months or more than six years and with the
accessory penalty of perpetual absolute disqualification from public office if the
National Power Corporation vs. Codilla Jr., Bangpai Shipping Company and offender be a public official at the time of the commission of the offense, and, if the
Wallem Shipping, Inc. offender is an alien he shall be subject to deportation proceedings.
This is actually a pure damage suit between a shipping company which bumped a
power barge. Unfortunately, certain pieces of evidence submitted were merely Section 3. Nothing contained in this Act, however, shall render it unlawful or
photocopies and were not properly authenticated in accordance with the Rules. 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
Under our Best Evidence Rule, if you want to prove the content of a document, the involving the crimes of treason, espionage, provoking war and disloyalty in case of
best evidence would always be the original. Nobody was presented to testify to these war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit
documents. Therefore, it was not admitted in evidence by the trial court judge. The rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to
petitioner responded that the photocopies are electronic evidence because they were sedition, kidnapping as defined by the Revised Penal Code, and violations of
produced electronically. Commonwealth Act No. 616, punishing espionage and other offenses against national
security: Provided, That such written order shall only be issued or granted upon

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SC ruled in the negative. Photocopies are not electronic evidence. The petitioner written application and the examination under oath or affirmation of the applicant
states that according to the Electronic Evidence Rule, the duplicates are considered as and the witnesses he may produce and a showing: (1) that there are reasonable
functional equivalent of the original especially so if they were produced almost at the grounds to believe that any of the crimes enumerated hereinabove has been
same time. Here, these are photocopies and the information contained therein are committed or is being committed or is about to be committed: Provided, however,
not electronically generated. Therefore not admissible. In fact, the court gave them That in cases involving the offenses of rebellion, conspiracy and proposal to commit
every opportunity to present to them the original and still failed to do so. 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
ANTI-WIRETAPPING ACT there are reasonable grounds to believe that evidence will be obtained essential to
R.A. 4200 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
Relevant provisions: such evidence.
Section 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 The order granted or issued shall specify: (1) the identity of the person or persons
any other device or arrangement, to secretly overhear, intercept, or record such whose communications, conversations, discussions, or spoken words are to be
communication or spoken word by using a device commonly known as a dictaphone overheard, intercepted, or recorded and, in the case of telegraphic or telephonic
or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise communications, the telegraph line or the telephone number involved and its
described: location; (2) the identity of the peace officer authorized to overhear, intercept, or
record the communications, conversations, discussions, or spoken words; (3) the
Evidence | Final Exam Reviewer | Judge Martinez | A.Y. 2017-2018 | 2nd Semester 19

offense or offenses committed or sought to be prevented; and (4) the period of the 2. Dictagraph
authorization. The authorization shall be effective for the period specified in the order 3. Walkie-talkie
which shall not exceed sixty (60) days from the date of issuance of the order, unless 4. Tape recorder
extended or renewed by the court upon being satisfied that such extension or 5. Or however otherwise described
renewal is in the public interest.
The proviso means that if the communication was obtained under Section 3, the
All recordings made under court authorization shall, within forty-eight hours after the prohibition will not apply. In other words, there is no wire-tapping.
expiration of the period fixed in the order, be deposited with the court in a sealed
envelope or sealed package, and shall be accompanied by an affidavit of the peace
officer granted such authority stating the number of recordings made, the dates and Section 3 provides that if the wiretapping, or if any of the lawful acts punishable
times covered by each recording, the number of tapes, discs, or records included in under section 1, is being committed by any peace officer who are authorized by a
the deposit, and certifying that no duplicates or copies of the whole or any part written court order, there is no violation of the law. They are not covered by the
thereof have been made, or if made, that all such duplicates or copies are included in prohibition.
the envelope or package deposited with the court. The envelope or package so
deposited shall not be opened, or the recordings replayed, or used in evidence, or If there is a court order, a peace officer can wiretap a private conversation for as long
their contents revealed, except upon order of the court, which shall not be granted as there is an indication that the parties are involved in rebellion, conspiracy to
except upon motion, with due notice and opportunity to be heard to the person or commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and
persons whose conversation or communications have been recorded. inciting to commit sedition, treason, espionage, provoking war and disloyalty in case
of war, piracy, mutiny in the high seas.
The court referred to in this section shall be understood to mean the Court of First
Instance within whose territorial jurisdiction the acts for which authority is applied for These are high crimes. Wiretap is allowed in the interest of national security.
are to be executed.
Section 1 clearly provides the prohibited act under the law. This law was promulgated TN: Court order is necessary.
in 1965.
Requirements:
TN: When the law mentions “any person,” this includes the parties to the 1. That there are reasonable grounds to believe that any of the crimes enumerated
conversation as well as third persons who overhears, intercepts or records the private hereinabove has been committed or is being committed or is about to be
conversation. committed;
2. That there are reasonable grounds to believe that evidence will be obtained

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TN: Both parties should not have given consent or authority to the recording of the essential to the conviction of any person for, or to the solution of, or to the
conversation. If only one consented, it is still not sufficient. In such case, both parties prevention of, any of such crimes;
should have given their consent to hear or to listen to the conversation. 3. That there are no other means readily available for obtaining such evidence.

TN: It has to be a private communication. The parties to the conversation really


intended the conversation to be just between the two of them. It is not for public Section 2 provides for the penalty for violation of the law. It provides that upon
consumption. conviction thereof, the accused shall be punished by imprisonment for not less than
six months or more than six years and with the accessory penalty of perpetual
This is about wiretapping a private conversation without the knowledge, consent, and absolute disqualification from public office if the offender be a public official at the
authority of all the parties. time of the commission of the offense, and, if the offender is an alien he shall be
subject to deportation proceedings.
Wiretapping through any of the following:
1. Using any other device or arrangement; JCM: Actually the penalty is still under the jurisdiction of the lower court. This law is
2. Secretly overhear antiquated.
3. Intercept
4. Record such communication or spoken word

By using a device:
1. Dictaphone
Evidence | Final Exam Reviewer | Judge Martinez | A.Y. 2017-2018 | 2nd Semester 20

Ramirez vs. CA and Garcia


ANTI-WIRETAPPING LAW CASES The issue in this case was whether the person who recorded who is a party to the
Chavez vs. Gonzales conversation would be punished under RA 4200. The confrontation between
This is the “Hello Garci” case. This was the controversial conversation between former workmates were recorded.
President Arroyo and the COMELEC Commissioner Garcillano at the time of the
election period. The conversation was already aired to the media and the voice of The SC ruled that there was a violation of the law. “Any person” referred to in Section
Arroyo was distinctly recognizable. She even admitted to the public. 1 includes even the party to the conversation. Another issue raised is that it was
merely a private conversation and not a private communication and the law punishes
The petitioner was Francisco Chavez and he filed the case against Raul Gonzales who unlawful recording or tapping of private communication.
was then the Secretary of DOJ. DOJ issued an AO and a statement warning reporters
and TV stations and personalities, or those who had copies of the compact disk and But the SC ruled that the two terms are the same. The fact of the case is that it was
the companies publishing its content, that they would be liable under the Anti- a private communication: an exchange of spoken words between the parties and she
Wiretapping Law. recorded it without the authority of the other.

They were questioning the constitutionality of such order of the DOJ and the MTC. Navarro vs CA
According to them, it is a violation of the constitutional right of freedom of expression There was a media man who was accidentally killed by the police in the police
and of the press. station. There was an exchange of words and there conversation was recorded by the
other media man. His recorded was presented in court as evidence to prove that that
The SC ruled that there was no violation of the wiretapping law. The AO was it was actually the victim who provoked the police officer.
unconstitutional. A governmental regulation is sufficiently justified if it falls within the
constitutional power of the government. If it furthers an important or substantial The SC ruled that the recording of the exchange of words in the heated argument
governmental interest or the governmental interest is unrelated to the suppression of was admissible. There is no violation of the Anti-Wiretapping Law because the law
free expression. In other words, the clear and present danger rule was not overcome specifically provides that to be violative of RA 4200, the conversation or the
by the government. communication must be private in nature.

A governmental action that restricts freedom of speech or of the press based on Here, the heated argument or the exchange of words between the victim and the
content is given the strictest scrutiny in the light of its inherent impact. Only when police officer was not private, but public. It was made in the police station in front of
the challenged act has overcome the clear and present danger rule will it pass many people and was recorded by the other media man. According to the SC, such
constitutional prosper. recording must be authenticated by the person who recorded it. It was the other

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media man who testified to its authenticity.
The court has no option but to uphold the exercise of free speech and free press.
It was considered to be admissible by the court.
Gaanan vs IAC
The issue in this case is whether the telephone extension is among the devices that Salcedo vs. Ortanez
are contemplated to be used for wiretapping. In this case the tape recordings were not admitted. Unlike in the case of Navarro
where the recording was deemed to be admissible, here the court said that it is
Section 1 provides that it has to be a device that has purposely used for overhearing, inadmissible.
interception to record communication. Telephone extension is not a device used to
actually tap a conversation, although it sometimes used to overhear private A husband filed a case of annulment against his wife for lack of marriage license
communications. and/or psychological incapacity. Part of his evidence were three cassette tapes which
contains recorded telephone conversations of his wife with unidentified persons. Here
The SC ruled that the law refers to a tap of a wire or a cable, or a use of a device or the husband allowed his friends from the military to wiretap his telephone line
arrangement for the purpose of secretly overhearing, intercepting or recording a
conversation. Telephone extensions are not used for such purpose. There must be The SC ruled that it is not admissible because the conversation between his wife and
either a physical interruption to wiretap or the deliberate installation of a device. No other persons is considered private in nature. And there is no showing that the
device was installed for such purpose. parties allowed or consented to the recording of the conversation. It would have been
a different story if the recording of the conversation was allowed or consented. Under
There is no violation of the law. RA 4200, the inadmissibility of the subject tapes are mandatory.

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