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