Evidence Review Notes

PRELIMINARY MATTERS EVIDENCE AS A SUBJECT Evidence as a subject is just a component of the entire Remedial Law as a subject in the Bar examination. This is just a small segment of the entire Remedial Law. Particularly, in our jurisdiction, the Rules on Evidence are found in very few provisions of our Rules of Court. Although there are some other provisions found somewhere else, but primarily the Rules on Evidence are found on Rules 128, 129, 130, 131, 132, 133, so practically there are only 6 Rules constituting the entire Rules of Evidence. EVIDENCE DEFINED Evidence is defined as the means, sanctioned by the Rules of ascertaining, in a judicial proceeding the truth respecting a matter of fact. ELEMENTS OF EVIDENCE 1. Evidence is just a tool/means -it is a tool to achieve the ultimate purpose--that is, truth. -not the end in itself

Evidence -means to the end -medium of proof

Proof -total effect of evidence (end result) -establishes the truth of the fact in issue

continue reading.... -you cannot equate evidence with proof because if you have evidence, it does not mean that you have proof because evidence has to undergo certain process for it to produce the desired proof -for example, evidence needs to go through the process of admissibility and sufficiency so that it will achieve the desired purpose of proofto establish the truth of a fact in issue. 2. Must be sanctioned (allowed) by the Rules -meaning, it must be such that is contemplated and allowed by the Rules. -so, anything presented in court that is not allowed by the Rules is not evidence. That is why we have COMPETENCYanything that is not allowed by the Rules, anything excluded by the Rules cannot be considered as evidence. -so it has to be that allowed by the Rules for it to be considered as evidence. Must be made in a judicial proceeding -TAKE NOTE: very important element of evidence! -when we talk of evidence, almost always, you think about judicial proceedings because as a general rule, the Rules on evidence apply only in a judicial proceeding. JUDICIAL PROCEEDING -meaning court, that is, bodies created by law that exercises judicial functions. GR: the Rules on evidence shall be uniform in all courts, in all judicial proceedings. EXC: (Rule 1, Section 4) These Rules shall not apply to [the following judicial proceedings] election cases, land registration, cadastral, naturalization and insolvency proceedings EXC to EXC: by analogy or in a suppletory character and whenever practicable and convenient. RATIONALE: because these cases are governed by their own peculiar and specific sets of rules.

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SUPPLETORY APPLICATION -the suppletory character in the application of the Rules of court, including the Rules of Evidence in these types of cases, happen in case their own Rules is silent on that specific question of procedure. NON JUDICIAL PROCEEDINGS GR: Rules of Evidence does not apply in non judicial proceedings. EXC: when their own Rules provide for the suppletory application of the Rules of Court (evidence). 1. 2. RATIONALE (why Rules of evidence do not apply to non judicial proceedings): Because the Rules specifically says so. Non judicial bodies have their own Rules of Procedure. -their own Rules of procedure may provide 2 things, to wit: a) expressly provide that the Rules of evidence will not apply REYES vs. CA Facts: Agrarian case filed and pending before the agrarian court. Trial Court admitted the affidavits of the witnesses even if they were not presented during the trial and be subjected to cross-examination. The same was affirmed by the appellate court. Issue: WON trial court erred in admitting the affidavits. Ruling: No. The lower court committed no error because the rules governing cases filed before the agrarian court, states that 1) the rules on evidence are not applicable even in suppletory character and 2) testimonies of witnesses in the form of affidavits are admissible. [This case illustrates a situation where the Rules adopted by a non judicial body (DARAB) expressly prohibits the application of the Rules of evidence in all cases before them, even in suppletory character] b) expressly provide that the rules of procedure will apply in a suppletory character -example the NLRC rules of procedure 4. To ascertain the truth -this refers to the LEGAL TRUTHthat which the evidence says (what is proved by evidence). -MORAL TRUTH-- if the truth coincides with the reality Respecting a matter of fact -in every litigation, there are always 2 issues: the factual and the legal issues -the purpose of evidence, is to ascertain only the FACTUAL ISSUES -trial is for the determination of a factual issue, evidence is for the determination of a factual issue. -you take out the factual issue, you do not speak of evidence.

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KINDS OF EVIDENCE DIRECT EVIDENCE vs. CIRCUMSTANTIAL EVIDENCE

Direct Evidence -kind of evidence that directly proves a fact in issue without aid of any reference or inference from other established facts EXAMPLE: testimony of an eyewitness 1.

Circumstantial (Collateral matters) Evidence -kind of evidence that indirectly proves a fact in issue by the aid of inference from another established facts CLASSIFICATIONS Antecedent circumstances -circumstances which occurred before the happening of the fact in issue

EXAMPLE: in a crime of murder, MOTIVE. -motive arises before the occurrence of the killing -it is necessary to prove first the truth of other facts, for example a violent quarrel to prove the motive. -it is not direct evidence because motive alone does not prove the killing -another example are PLAN, DESIGN or HABIT, CHARACTER of a person 2. Contemporaneous circumstances -are circumstances occurring at the time of the occurrence of the fact in issue EXAMPLE: in a crime of murder,OPPORTUNITY of the accused, when the accused was found in the very same place where the crime was committed at the time of its occurrence -another example: ALIBI, a contemporaneous contemporaneous circumstance which tries to disprove a fact in issue 3. Subsequent circumstances -circumstantial evidence which took place after the occurrence of the fact in issue -EXAMPLE: in a murder case, FLIGHT -another example: OFFER OF COMPROMISE (especially in a crime of rape) -still another: PROPERTY OF THE ACCUSED LEFT AT THE CRIME SCENE
PRIMA FACIE EVIDENCE vs. CONCLUSIVE EVIDENCE

Prima facie Evidence -an evidence which standing alone, uncontroverted is sufficient to establish a fact in issue/ proposition sought to be proven -can be rebutted and controverted but if not controverted it is allowed to prove a fact in issue EXAMPLE: in theft, there is a prima facie presumption that the possessor of a stolen item is the thief, so if the accused fails to explain(controvert) why he possessed the item, then the presumption is enough to convict.
NEGATIVE EVIDENCE vs. POSITIVE EVIDENCE

Conclusive Evidence -an evidence that is incontrovertible, cannot be overcome, cannot be rebutted

EXAMPLE: DNA result of non-paternity is conclusive. So ones the DNA test hails a negative result, then there is no other evidence to contradict because it is conclusive as to the fact of non-paternity.

Negative Evidence

Positive Evidence

-negative evidence is when the witness declares -positive evidence is when the witness affirms that the fact did not happen/occur or confirms that an act happened or took place EXAMPLE: typical examples are DENIAL and ALIBI
-TAKE NOTE: as between positive and negative evidence, in the hierarchy of probative value, courts are inclined to give more credence to positive evidence than negative evidence. RELEVANT EVIDENCE vs. MATERIAL EVIDENCE vs. COMPETENT EVIDENCE

Relevant Evidence Material Evidence -an evidence which has a -an evidence is material when relation to a fact in issue as to it is directed to prove a fact in induce belief as to its issue existence or non-existence

Competent Evidence -an evidence is competent when it is not EXCLUDED by the Rules -meaning, it is sanctioned, accepted and allowed by the Rules. TEST: governed by the law of TEST: Substantive law or the TEST: law or the Rules of LOGIC, COMMON SENSE Rules on Pleadings Court and HUMAN EXPERIENCE EXAMPLE: in a prosecution EXAMPLE: in an action for EXAMPLE: presentation of for reckless driving, to prove the collection of sum of money secondary evidence without that the incident was the filed by the plaintiff against accounting for the original; proximate result of the the defendant, based on a PN. see Exclusionary Rule negligence or fault of the The plaintiff appended to his driver. The prosecution complaint a copy of the presented a witness who promissory note. [Under the testified that a few hours Rules, in denying an before the accident happened, actionable document, the same the accused had a drinking must be made under oath]. spree with his friends at a Supposed the defendant failed party and that he was drunk. In to deny it under oath, the the determination of WON the implication is that he can no testimony of the witness who longer assail the genuineness would establish that the driver and due execution of the PN was drunk at the time of the (admission of the genuineness accident is RELEVANT, the and the due execution). prosecutor should ask the Supposed during trial, the question, is it logic, is it defendant presented a report reasonable, is it in accord with by the NBI that the signature common sense, is it in accord was a forgery, the report is an with human experience that IMMATERIAL evidence the drunk driver could because it is directed against a possible caused the incident. fact which is no longer in Now, common sense would issue. tell us that, a drunk person has [ISSUE exists when the diminished faculty. Thus, it is plaintiff alleges a fact and the reasonable to conclude that a defendant denies it] drunk person could cause the

accident, he could be at fault because he was drunk. THEREFORE, the testimony of the witness is relevant because it relates to a fact in issue (that is, WON the driver is at fault resulting in the accident).
CUMULATIVE EVIDENCE vs. CORROBORATIVE EVIDENCE

Cumulative Evidence -is an additional evidence (meaning, it requires another evidence) of the same kind, nature and character to prove the same fact in issue EXAMPLE: in a prosecution for the crime of murder, there were 5 witnesses who saw the actual shooting, if 1 will testify, the testimonies of the other 4 will be considered as cumulative evidence because their respective testimonies are of the same nature and character and all of them tend to prove the same point of fact.

Corroborative Evidence -is an additional evidence of different kind, nature and character, although it proves the same point of fact (fact in issue) EXAMPLE: the testimony of the victim herself, testifying as to the circumstances surrounding the commission of a crime. The prosecution to corroborate the testimony of the victim presented the medico-legal officer who examined the victim after the incident. The testimony of the medico-legal and the result of the report is a corroborative evidence because it is of different kind and nature to prove the point of fact (rape).

Other Terms [not discussed] Expert evidence testimony of a witness regarding a question of science, art or trade, when he is skilled therein. Best evidence evidence which affords the greatest certainty of the fact in question. Secondary evidence evidence which is necessarily inferior to primary/best evidence and shows on its fact that better evidence exists.

Factum probandum Proposition to be established Conceived of as hypothetical; that which one party affirms and the other denies

Factum Probans Material evidencing the proposition Conceived of for practical purposes as existent, and is offered as such for the consideration of the court

ADMISSIBILITY EVIDENCE: HOW TO SERVE ITS PURPOSE How does evidence serve its purpose of ascertaining the truth respecting a matter of fact? -an evidence for it to serve its very purpose of ascertaining the truth respecting a matter of fact, it has to go through 2 basic tests [test of admissibility and test of weight and sufficiency]: I. Test of admissibility- simply refers to the stage in the trial where the evidence is presented in court and accepted by the court.

-The benefit if the evidence is admitted by the court is that the court is bound/ obliged to consider the evidence. On the other hand, if the evidence does not pass to the test of admissibility, either because it is irrelevant or incompetent, the evidence will not be considered by the court in the resolution of the case, even if the evidence technically forms part of the records of the case. II. Test of Weight and sufficiency- WON the evidence is sufficient and believable. -the evidence must pass through both of these tests, otherwise, it will not serve its intended purpose. -TAKE NOTE, however, that the fact that the evidence is admitted does not necessarily mean that the court will give credit/weight to your evidence; it does not follow that when the evidence is admitted, it already has the effects of proof, that it already produce the effect of establishing the fact in issue. -admissibility is one thing, weight and sufficiency is an entirely different thing. -the evidence to serve its purpose of ascertaining the truth respecting a fact in issue MUST not only pass the test of admissibility but also pass the test of weight and sufficiency.

Admissibility of evidence Pertains to the ability of the evidence to be allowed and accepted subject to its relevancy and competence Substantive essence or characteristic feature of evidence as would make it worthy of consideration by the court before its admission
1. 2.

Weight of evidence Pertains to the effect of evidence admitted

The probative value of evidence which the court may give to admit after complying with the rules of relevancy and competency

TWO AXIOMS OF ADMISSIBILTY non but facts having rational probative value are admissible (axiom of relevancy). all facts having rational probative value are admissible, except when excluded by the Rules (axiom of competency). THREE KINDS OF ADMISSIBILITY Conditional Admissibility- is a principle which applies to a situation where at first glance, evidence presented is irrelevant but its relevancy will be established when that evidence presented is connected with the other evidence yet to be presented. -if you are a proponent of an evidence which at first glance is irrelevant, you can invoke the principle of conditional admissibility and tell the court that you be allowed to present the evidence subject to the condition that it will be connected with the other evidence that you will present later on. EXAMPLE: A obtained a loan from B and for that purpose, A executed a PN. In turn, B, assigned his credit to C, evidenced by a DOA. Then C, assigned the credit to D. So there are now 4 parties: A- the borrower; B-the lender; C-the first transferee; and D-the second transferee. When A failed to pay the PN, an action for collection of sum of money was filed by D. In proving his case, D presented C, as his first witness to testify that fact of assignment of credit to D. At first, if you will look at the testimony of C, in relation to his transaction to D, it appears that D has no cause of action against A because there is no connection between A and D. So at that precise moment, the counsel of A may object on the ground that the testimony of C is irrelevant. The counsel of D may invoke the principle of conditional admissibility, that the testimony of C be conditionally admitted because you will present later on, B, who will establish that C obtained the credit from B and B later on would testify that he got his credit from A. Now, presentation of the other witnesses will now establish the connection and taken all together these pieces of evidence are relevant. -if you fail to connect the conditionally admitted evidence with the other evidence, the same will be stricken off the records.

1.

2.

Multiple Admissibility is the rule when an evidence is admissible for 2 or more purposes. UNIWIDE SALES vs. TITAN-IKEDA Facts:

This is a dispute between a contractor and an owner involving 3 construction sites. When the owner of the construction failed to pay a certain amount, the contractor sued, went to court and filed an action for the collection of sum of money arising from the construction contract. In its answer, it claimed liquidated damages and alleged that the contractor incurred delay and failed to complete the project on time. During the trial, in order to prove that the project was completed, the contractor presented the project engineer to prove that the project indeed was completed on a specific date. The purpose of the testimony was stated in the Offer--that is to prove the fact that the project was completed. The adverse party took advantage of the admission of the engineer that the project was completed on a certain date because it turned out that the date of completion was way beyond the period of completion stipulated in the contract. Thus, they claimed that it proved the fact of delay. Issue: WON the testimony can be admitted to prove delay in the completion of the project. Ruling: No. The purpose for which the testimony was presented was to prove the fact of completion. Therefore, it cannot be used to prove the fact of delay. If an evidence is admitted for one purpose, it can be admitted for that purpose alone. 3. Curative Admissibility- also known as FIGHT FIRE WITH FIRE -this is a rule in a situation where the court erroneously admitted an evidence which is otherwise inadmissible or incompetent evidence. -if this happens, the adverse party can present an equally incompetent evidence and the court is duty bound to admit it. -PURPOSE: fairness -TAKE NOTE, however, that for curative admissibility to apply, the adverse party should have objected to the admission of the inadmissible/incompetent evidence. Otherwise, if he fails to object to the admissibility of the incompetent evidence and the court eventually admitted it, the said party cannot introduce a similar inadmissible evidence. REASON: the right to object to the admissibility of an evidence is NOT SELF EXECUTORY. It has to be invoked by the party entitled to it, failure to object to the inadmissibility of the evidence, results to a WAIVER. EXAMPLE: in an action for collection of sum of money, plaintiff alleges that the defendant owed him 1M. To prove the allegation, the plaintiff offered a photocopy of the PN without accounting for the original. Under the Best evidence rule, such photocopy is admissible for failure to account for the original but despite objection from the defendant, the court erroneously admitted the otherwise inadmissible photocopy of the PN. Now, the defendant, invoking the curative admissibility rule, is entitled to present the photocopy of the acknowledgment receipt without also accounting for the original, to prove the payment of the loan mentioned in the PN. The court is now obliged to admit the photocopy of the acknowledgement receipt. ELEMENTS OF ADMISSIBILITY When is an evidence admissible? -under our jurisdiction, to be admissible, an evidence must be RELEVANT and COMPETENT. 1. Relevancy - has a relation to a fact in issue as to induce belief as to its existence or non-existence Is materiality an element for admissibility? -under our Rules, there are only 2 elements, RELEVANCY and COMPETENCY [materiality is not there]. One writer says, you cannot equate relevancy with materiality because these are two different things. -ILLUSTRATION: in a suit for collection of money based on a PN and the defendant failed to deny under oath the genuineness and due execution of the PN. The presentation of evidence tending to prove forgery could be RELEVANT but not MATERIAL. It is RELEVANT because the fact in issue in a collection suit is WON the defendant is indebted to the plaintiff. If the defendant can prove forgery in the PN, then it has a reasonable probative value that maybe the defendant is not indebted to the plaintiff because the PN is falsified, so reasons and common sense would tell us that there is a reasonable connection between the fact of forgery and the fact in issue that the PN is falsified. If the defendant could prove that the PN is

falsified, then there is no obligation. But the evidence is NOT MATERIAL because the genuineness and due execution of the PN, is not an issue in the cause because of the defendants failure to deny the allegations under oath. -ILLUSTRATION: in a suit for collection of sum of money, the defendant interposed the defense that he does not owe the plaintiff a thing. During the trial, the defendant presented an acknowledgement receipt proving that he already paid his obligation to the plaintiff. In such action, where the defense is that the defendant does not owe a thing to the plaintiff, the receipt is RELEVANT because if you can present proof of payment, then necessarily, logically, common sense would tell us that the plaintiff has no cause of action against the defendant because the defendant has already paid the indebtedness. BUT it is IMMATERIAL because it is not an issue to the case because the defendants answer, as alleged in the Answer is he did not obtain anything from the plaintiff. So, evidence of payment is immaterial. -RECONCILE: According to Justice Herrera, the trend now is that relevancy is composed of 2 components, materiality and probative value. The concept of MATERIALITY and PROBATIVE VALUE are subsumed in the concept of RELEVANCY. In other words, when we talk of relevancy, we actually talk of evidence which has a probative value and material. 2. Competency an evidence is competent when it is NOT EXCLUDED by the LAW or by the RULES. -for an evidence to be considered incompetent, there has to be a specific law or rule which excludes it from admission. EXCLUSIONARY RULES a. based on the constitution -GR: evidence obtained in violation of ones constitutional right, is INCOMPETENT. Thus, INADMISSIBLE. i. right against unreasonable searches and seizure Article III, Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

GR: NO search and seizure can be conducted without a valid SEARCH WARRANT or WARRANT OF ARREST. -EXC: valid warrantless search and valid warrantless arrest. -search incident to a lawful arrest -search of moving vehicles

-plain view search -customs search -waiver on the part of the person searched -stop and frisk -airport checks -checkpoint search SEARCH INCIDENT TO A LAWFUL ARREST -contemplates a situation where the search is effected as an incident to a lawful arrest. -in most cases, the arrest here is a valid warrantless search. -It must be preceded by a valid warrantless arrest, such as: a. In flagrante delicto PERSONAL KNOWLEDGE REQUIRED: personal knowledge of the arresting person/officer of the fact of the commission of the crime. b. hot pursuit PERSONAL KNOWLEDGE REQUIRED: personal knowledge of the facts and circumstances that the person to be arrested has committed a crime. [need not have personal knowledge of the commission of the crime, only the facts and circumstances that the person to be arrested has indeed committed the crime] c. fugitive from justice CASES:

People vs. Amminudin [People vs. Mengote People vs. Quebral and other kindred cases] -the principle enunciated in these cases is that -the situation is in the reverse, the search for the police officers to effect a valid preceding the arrest. warrantless arrest under the in flagrante -TAKE NOTE, that in WARRANTLESS delecto, the police officer must have SEARCH, the arresting officer is not required to PERSONAL KNOWLEDGE of some have personal knowledge of the commission of a OVERT acts on the part of the person to be crime, what is required is ONLY PROBABLE arrested that he has committed, is committing CAUSE [reasonable suspicion that the person to or is about to commit an offense. be arrested has committed an offense or in possession of some contraband or illegal merchandise]. In search incident to a lawful arrest, TIP In search, tip information from a reliable source, INFORMATION from a reliable source is may constitute probable cause, especially when NOT enough. the description given by the informant is confirmed by the searching officer the moment they spotted the person identified by the informant. -so that in Amminudin, the SC declared the FACTS: the police got a call from the PDEA that search and arrest invalid because the accused an informant contacted them, relaying the was arrested while he was alighting from the information that 2 men and a woman boarding a gangplank of a vessel. There was nothing jeep would arrive in a Petron gas station to deliver wrong with a person alighting from the vessel. prohibited drugs to a known drug pusher found in He has not committed, is committing or about the police hot list. The following day, the

to commit a crime. INVALID ARREST, thus, operatives had a briefing at 8am and then INVALID SERACH. proceeded to the Petron gas station and waited for the persons identified by the informant. They stayed there until 4pm when a jeep arrived in the place where 2 men and a woman were on board. A Toyota Tamaraw FX arrived in the same place, and then the driver identified as the notorious drug dealer alighted and walked towards the woman in the jeep. When they came together the woman handed to the driver of the FX a white envelope. That very moment, the police officers shoot (not so sure of the word used) down on the 4 accused. The police officer took away the white envelope from the driver of the FX and discovered shabu. They were prosecuted for violation of the DDL. On appeal, accused argued that they were not committing any crime at the time of the arrest. There is nothing wrong with a person handing a white envelope to another. [No overt act constitutive of any offense] SC: actually, this is a case where the SEARCH preceded the ARREST. When the search was conducted, the searching team had reasonable belief or probable cause that the person they witnessed in the gas station were the very same persons described by the informant, which justified the probable cause. Since the SEARCH yielded a positive result, the succeeding warrantless arrest is also valid because at the time the persons were arrested they had been committing an offense. -In Mengote, he stood in a corner of a street, DISTINCTIONS: holding his bulging abdomen and looking 1. In Amminudin, the police had sufficient time to from side to side. SC said, there is nothing ask for warrant. In Quebral, no sufficient time wrong with somebody standing in the corner was available. of a street holding his bulging abdomen and In Amminudin, the name and personal 2. looking from side to side. ILLEGAL circumstances of the accused was supplied by the ARREST, thus, ILLEGAL SEARCH. informant. In Quebral, no names were given, only the description that 2 men and a woman boarding a jeep will arrive in a Petron gas station and a notorious drug pusher. Thus, it was impossible for the officers to apply for search warrant. BASIC PRINCIPLE: no overt act indicative BUT See People vs. Laguio: of commission of an offense. -SEARCH INCIDENT TO A LAWFUL ARREST- can only be done when there is

personal knowledge -SEARCH PRECEDING A LAWFUL ARRESTno need of personal knowledge, but only probable cause (which may came from a tip from an informant)
ii. right to privacy of communication and correspondence Article III, Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

iii. rights of an accused under custodial investigation Article III, Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families.

Article III, Section 17. No person shall be compelled to be a witness against himself. iv. right against self incrimination

BASIC PRINCIPLE: can be invoked in ALL proceedings. (criminal, civil, and administrative) DISTINGUISH:

Who invokes?/ In Criminal Proceeding what Proceeding? -Can refuse to take the witness stand [Reason: when the prosecutor calls the accused to the witness stand, the presumption is that the prosecutor will

Civil Proceeding -Cannot refuse to take the witness stand [Reason: in a civil case, basically the purpose there is not to establish criminal liability but civil liability, which is not

Administrative proceeding -NOTE: the proceeding must be PENAL in nature. -Can refuse to take the witness stand [Reason: when the prosecutor calls the accused to the witness

Accused

incriminate him]

covered by against incrimination]

right stand, the presumption self is that the prosecutor will incriminate him]

-BUT he can refuse to answer questions 9and invoke his right against self incrimination) which will incriminate him. -no right to refuse to take the witness stand - But in any proceeding, that ordinary witness may invoke self incrimination at the precise moment that incriminating question is asked. -no right to refuse to take the witness stand - But in any proceeding, that ordinary witness may invoke self incrimination at the precise moment that incriminating question is asked. -no right to refuse to take the witness stand - But in any proceeding, that ordinary witness may invoke self incrimination at the precise moment that incriminating question is asked.

Witness

-The rule there is that any evidence obtained in violation of any of these constitutional rights is inadmissible for being poisonous. -TAKE NOTE! That the right to object to the admissibility of evidence obtained in violation of this constitutional right belongs to the person whose right is being violated and no other (right is PERSONAL) -TAKE NOTE! This right is personal to the person whose right is being violated. So the objection to admissibility cannot be invoked by a third party even if the admission of that evidence may prejudice that same third party. Because the right to object belongs to the party whose right is violated. Take note of that! -The constitution says that any evidence obtained in violation of these rights is inadmissible for any purpose in ANY proceedings. -TAKE NOTE that, that principle applies only if the evidence is offered or presented against the person whose right has been violated. So in ANY proceeding it is not admissible in so far as that person's right has been violated. But it can be admissible for purposes or in any proceeding if it is presented not against the person whose right has been violated. If it is presented against any other person, it is admissible! -So that if you sue the police officer for violating your right, search and seizure, there is abuse in the execution of the search warrant, excessive force. Under your criminal law, that constitutes a criminal offense. Employing unnecessary force in the implementation of search warrant. The person aggrieved may file a criminal case against the police officer. The prosecution now may present in evidence the seized items as evidence in the criminal prosecution against the police. That is admissible. Why? Because it is offered against the police, not against the person whose right has been violated. -So dont confuse your mind of the erroneous notion that the phrase there in the constitution that it is inadmissible for any purpose in any proceeding holds as an absolute principle, it is not!

PRINCIPLE: there is in so long as it is offered in evidence against the person whose right has been violated, because precisely that is intended for his protection. b. based on statue 1. Anti-wiretapping Act (RA 4200) - penalizes the act of intercepting or otherwise recording in a private conversation the use of any means specified under the law. Any evidence obtained in violation of the provision of the anti-wiretapping act is inadmissible.
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 any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described: It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition. Section 2. Any person who willfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding section or who violates the provisions of the following section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction thereof, be punished 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 offender be a public official at the time of the commission of the offense, and, if the offender is an alien he shall be subject to deportation proceedings.

CASES: Gaanan vs CA An extension telephone line is not covered under the wiretapping act. So that if a private conversation is overheard by a third party, using an extension telephone line, that evidence is admissible. Because according to the SC, an extension line is not among the devices contemplated by law as being prohibited to record or intercept conversation under the antiwiretapping act. Ramirez vs CA the prohibition covers recorded conversation even if the party violating the provision is one of the parties to the conversation. Take note that in Ramirez vs CA, while they had this altercation and in the course of their altercation,the other party allegedly defamed/maligned the other, not knowing that the conversation or altercation was recorded. When prosecuted for violation of antiwiretapping act, the accused rasied the defense that he cannot be punished under the wiretapping act because he is a party to the conversation being recorded. The SC said No! the law does not distinguish. It does not distinguish whether the party responsible for violating the provision is a party to the conversation or not. So it could be anybody. The only requirement there is the recording is done without the consent of the parties to the conversation. People vs Navarro Wiretapping act applies only if the conversation is private. This case of Navarro involves a case for homicide when the police killed a reporter. The killing was preceded by an altercation with the police and the reporter and unknown to both, the companion of the victim, also a reporter, secretly recorded the altercation. After the altercation the police killed the victim. When prosecuted for homicide, one of the pieces of evidence introduced by the prosecution was the recorded altercation between the police and victim. The accused objected invoking the provision of the antiwiretapping act. SC said that in the first place the altercation was not a private conversation. Although the SC did not endeavor to define what is a private conversation, but according to Mr. Riano, common sense tells us that a private conversation is a conversation which is not intended to be heard by another who is not a party to the conversation. That is a private conversation. If it's not intended to be heard only by the parties then it

is not private conversation. In this case there were other persons present, other than the parties to the altercation. EXCEPTION: provided in the Human Security Act The HSA allows the act of listening to, intercepting or recording of any communication, conversation or messages between: 1. Persons who are members of judicially declared and outlawed organization association or group of persons; or 2. of any person suspected or charged with crime of terrorism or conspiracy to commit terrorism. EXCEPTION TO THE EXCEPTION: Take note that the provisions in the HSA allowing recording, listening and interception of messages and private conversation and so on does not apply cover conversation between: 1. Lawyers and their clients 2. Physician and patients 3. Journalists and sources 4. Confidential business correspondence -The interception listening or recording under the HSA can be done only upon order of the court of appeals. Which order takes effect 30 days extendible to another 30 days. 2. Exclusionary rule under RA 8505, Act providing assistance and protection to rape victims. Rape Shield Rule. It says there that in any criminal prosecution for rape, any evidence which tends to prove the past sexual conduct of the victim or any opinion thereof or her sexual reputation is not admissible. Except and only to the extent that the court finds it relevant and material. This is a stupid law. Why would you present sexual, why would you waste time presenting evidence that would tend to prove the victim's past sexual conduct or sexual reputation. You don't believe that it is relevant and material. Although it says there, Rape Shield Rule. 3. Exclusionary rule under RA 9262, VAWC law. Sexual Abuse Shield Rule. In any prosecution involving child abuse. Evidence which would tend to prove that the accused engaged in other sexual behavior or evidence that would tend to prove the victim's sexual predisposition, except evidence of specific sexual conduct of the victim to prove that the person other than the accused is the source of the semen, injury or other physical evidence. Take note under in rape shield rule or sexual abuse rule, this can be invoked only criminal prosecution for rape in so far as rape shield rule, and in criminal prosecution for sexual child abuse case in so far as sexual abuse shield rule. So both are criminal prosecution. The rule is specific. RA 1403/1404. (An Act prohibiting inquiry or disclosure of bank deposits). -GR: inquiring into or disclosure of information regarding bank deposit is prohibited. Any information obtained in violation, inadmissible. -EXC: (You take note of the exceptions, there are so many exceptions.) In case ofimpeachment, in case of bribery, when the bank deposit is subject of litigation, in case ofregular audit allowed by the monetary board, etc. Section 201 of the internal revenue code. -Under the IRC there are these so called taxable documents. Documents requiring documentary stamp tax. Common of these are deed of conveyances involving real property, sale or lease of real property, certificate of stocks, bonds, insurance policies, special power of attorney, wills, bill of lading, etc. RULE: For purposes of presenting any or all or some of these documents in evidence, the requirement is the documentary stamp tax should be paid, and this should be evidenced by the stamp being affixed or appended to the document, with an indication that the stamp has been cancelled. This is usually

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manifested by placing two parallel lines across on the face of the stamp itself. This is to avoid recycling of the stamp. -So if you present your evidence classified as taxable documents you need to comply with the requirement of the documentary stamp tax, you have to append the stamp to your evidence. If you present a deed of sale you have to attach the documentary stamp duly cancelled. c. based on the Rules of Court 1. Best evidence rule. Evidence offered in violation of the best evidence rule, inadmissible. 2. Parol Evidence Rule. Document offered in violation of the parol evidence rule, inadmissible. 3. Rule on Authentication. Document not duly authenticated, inadmissible! 4. Hearsay Evidence Rule. Evidence which is hearsay, inadmissible. 5. Offer of compromises in civil cases. Inadmissible 6. The rule on Res Inter Alias Acta Rule. The act of one cannot prejudice another, inadmissible. 7. The rule on disqualification of witnesses. There are witnesses who are disqualified from testifying. Like wife is disqualified from testifying against the husband because of marital disqualification, or testimony involving confidential information with a lawyer and client, priest and penitent, and patient and physician. Inadmissible, by virtue of privileged communication. 1. 2. 3. INSTANCES WHEN FACTS ARE ESTABLISHED WITHOUT NEED OF EVIDENCE Judicial Notice Judicial Admission Presumptions JUDICIAL NOTICE -The principle of judicial notice is premised on the fact that there are matters that courts or judges ought to know by reason of their judicial function. Take note that the law says the judges OUGHT to know. So even if the judges themselves actually do not know that does not excuse them from taking judicial notice of something because they ought to know the matter. JUDICIAL NOTICE vs. PERSONAL KNOWLEDGE OF THE JUDGE -What is personally known to the judge does not necessarily constitute judicial notice. -Matters which the courts are enjoined to take judicial notice do not necessarily mean matters personally known to the courts. -So, There are matters which should be taken judicial notice by the court in the mandatory character. And there are those which are discretionary. Mandatory, you have that under the rules. You have also the three written under discretionary. You just have to familiarize yourselves. MANDATORY JUDICIAL NOTICE Rule 129, Section 1. Judicial notice, when mandatory. A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions.

-So when the matter involves any of these the courts have no choice but to take judicial notice of them. -Now it does not follow that judges actually have knowledge of these facts here. You cannot expect a judge in Cebu to be familiar with the political history of Serbia and Herzegovenia or the form of government of the other countries. -What is the court supposed to do when the matter involves mandatory judicial notice and the judge does not actually aware of it. How can he take judicial notice of that matter? -TAKE NOTE that when the matter falls or is a proper subject of judicial notice, you dont need evidence because it is supposedly known to the court. So if you are the judge the matter is mandatory and in all honesty you are not personally aware of this fact, you just have to resort to research materials and inform yourself of the matter. So if the issue there is the political history of a certain country or the territorial extent. How many states of America, you go to the library and research! DISCRETIONARY JUDICIAL NOTICE Section 2. Judicial notice, when discretionary. A court may take judicial notice of matters which are of public knowledge, or are capable to unquestionable demonstration, or ought to be known to judges because of their judicial functions. (1a)

-hearing is required. PURPOSE OF THE HEARING: 1. To determine the propriety of taking judicial notice. -There is an issue there of whether this can be taken judicial notice of. Like matters of public knowledge. You still have to determine if this matter is really public knowledge. -So if the court is in doubt of whether this matter is a public knowledge. The court will conduct a hearing and allow the parties to be heard thereon, to determine if it is really proper to take judicial notice of the matter. Otherwise, if the court is convinced that the matter cannot be taken judicial notice of, then allow or require the parties to present evidence. 2. The other purpose is the precise tenor of the judicial notice. EXAMPLE: in a case for recovery of a slightly used motor vehicle sold by plaintiff to the defendant. The seller/plaintiff wants to recover the motor vehicle because the defendant failed to pay. He promised to pay within the three years but he failed to pay. So he wants now to recover the property. But the property could no longer be recovered. So instead the plaintiff asked for compensation representing the value of the property.

ISSUE: the Fair Value of the Motor Vehicle subject of the case. So if you are the court you may decide to take judicial notice of the matter. Maybe this is common knowledge that when a car is 1990 model and its now 2010, then the prevailing price is this much. So the court may in the exercise of its discretion, decide to take judicial notice of the fair value of the property. In case the court is in doubt then he may conduct hearing and allow parties to be heard thereon. Now supposing the court decides to take judicial notice, that he will take judicial notice of the fair value of the motor vehicle which was 1990 model. The problem now is the tenor. How much? The plaintiff would go for higher and the defendant lower amount. So they are now fighting over the tenor of the judicial notice. So, how much? There is now a hearing. What do you do during the hearing? You are not supposed to present evidence during the hearing because this is judicial notice and evidence is dispensed with. So what do you do during the hearing? The parties will provide information to the court as to the Fair Value of the property. How do you do that? You dont present evidence, just INFORMATION. -What do you exactly mean by that? Information meaning any material which can be a source of information that would guide and help the court in arriving at a decision as to the fair value of the property. It could be any source of information. It is not evidence. Meaning you do not have to follow the rules on evidence to present this information. So when you are in the hearing you may present a document, for example newspaper, like the ads on second hand cars, you have this list of prices so you can use this as a source of information and you can present this in court. -This is not considered as evidence because you do not follow the strict rules of presenting evidence. So you can present it in any form you want. The purpose there is to help the court in arriving at the accurate and fair tenor of the judicial notice. Or you can present pricelist from dealers of secondhand or slightly used cars. That could be a source of information. If you were to follow the rules on evidence, these materials would not be admissible, these are all hearsay. But because these are presented not as evidence but only a source information, no problem because that hearing is NOT intended to afford the parties the opportunity to present evidence but only information. JUDICIAL ADMISSION JUDICIAL ADMISSION DEFINED A judicial admission is an admission whether written or oral, made by a party in the course of proceedings in the same case. NOTA BENE: 1. It should be made by a party.

Effect(s)

Admissions by a Admissions by a Party Counsel -conclusive and GR: admission by binding against him. counsel is admission by the party because the lawyer is the agent of client. EXC: gross negligence by the counsel or when it will cause grave prejudice to the party.

Admissions by a Witness GR: admission by a witness is admission by the party -The rule is the party calling the witness cannot impeach his own witness. What does that mean? You cannot contradict your own witness. Because in calling him you vouch the integrity and honesty of this witness. When you present your witness you are in effect

telling the court that your honor whatever this witness will tell you is true, because he is like me, an honest person. So when something goes wrong when your witness testifies in court you cannot later on say, that witness is a LIAR! So in effect it would appear that you are bound by the testimony of your witness because you are not permitted to contradict him. EXC: declare him as a HOSTILE WITNESS. Now if you present a witness class. You vouch to the honesty and credibility of your witness. Of course you are there for the truth so you should present yourself as an honest person and you should present a witness who will prove your case, who is supposed to be an honest witness. So that if your witness testifies in court his testimony will benefit you because you are the one calling him as your witness in support of your case.
2. It should be made in the proceedings of the same case where the admission is made. -So that if the admission is made in the course of proceeding but in another case, that is not a judicial admission, only extra judicial admission. So if that admission was made in branch 1, if you use that admission in the case pending in branch 2, that admission is extrajudicial. A judicial admission is an admission made in branch 2 and used in the case of branch 2, that very same case where the admission is made. JUDICIAL ADMISSION v. EXTRAJUDICIAL ADMISSION

Judicial Extrajudicial Admission was made in the course of judicial Not made in the same case where it is offered though

proceeding of the same case where it is used

made in the course of judicial proceeding or may be out of court admission. Conclusive and binding upon the admitter, hence it Can be contradicted by other evidence as it no cannot be contradicted by the admitter himself (other deemed conclusive party is not bound) Needs no evidence or proof as far as the admitter is There is need of proof and for it to be formally concerned; it need not be offered as evidence offered in evidence.
GR: Judicial admission cannot be contradicted by the admitter. EXC: 1. When made through palpable mistake 2. That no such admission was made as when it is taken out of context 3. Gardner Case. Testimony in open court adverse to ones own interest. CASES: Atillo v CA Facts Atillo was owner of Amancor, Lhuillier then purchased shares of stocks from Amancor. When Amancor was sued for collection of its corporate debt by Metrobank, Atillo demanded the payment from Lhuillier alleging that Lhuillier assumed the corporate debt. Atillo claimed that by Judicial admission Lhuillier affirmed his personal liability as shown in their agreement, I will personally answer the obligation with the condition that it will be a set off to Lhuilliers stock purchase. Mr. Lhuillier admitted that he was dealing personally with Atillo. Issue: WON Lhuillier is personally liable by virtue of his judicial admission that he dealt personally with Atillo. Ruling: No. Atillo took the admission out of context when he alleged that Lhuillier admitted he personally dealt with him hence Lhuillier is personally liable to him . The personal liability admission of Lhuillier pertains to his stock purchases and not to the corporate debt payment. Lhuillier even categorically denied in his answer the personal assumption of the corporate debt. There was actually NO admission made by Lhuillier as it is out of context. Mr. Lhuillier cannot be held personally liable. Gardner v. Deogracias Facts Petitioner filed for declaration of nullity, rescission of sale and damages on grounds of simulated, fictitious and no consideration against Santos et. al. In his answer, Santos posits that the transaction is a conditional sale, in effect saying that it is valid. But when Santostestified in court, a complete turnaround happened when he admitted that the sale is simulated without consideration. Issue: WON there was a perfected sale. Ruling None. The testimony prevails over the answer since it is more credible as it is done against his own interest (this is the peculiar circumstance). An answer is only a mere statement of fact.

GR: NO need of evidence in Judicial Admissions (may be in pleadings, oral manifestations, testimonies, depositions, etc) EXC: (when evidence needs to be presented): 1. Rule 23, Secs 6 & 8 Depositions (containing admissions for it to be considered by the court) need to be formally offered in evidence and the adverse party may object to it. Deposition- common justification is when the witness resides in more than 100 km from court. This is taken out of court and considered as judicial admission. 2. Rule 116, Sec 3 of the Rules of Criminal Procedure - When accused pleads guilty to a capital offense the court is mandated to conduct a searching inquiry as to the voluntariness and full comprehension of the consequences of his plea and directs the prosecution to establish his guiltevidence shall then have to be presented. Rule 26, Sec 3Effect of Admission after request for admission by the adverse party. -An admission made by a party pursuant to the request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor the same be used against him in any other proceeding. -It cannot be use even as an extrajudicial admission, since the prohibition is very categorical and absolute. Rule 10, Sec 5 (ROC) Amendments -The amended pleading supersedes the pleading that it amends but whatever admissions in the superseded pleading may be received in evidence (Sec. 8, Rule 10). The admissions in the superseded pleading now become extrajudicial when used, that needs to be formally offered. -Admissions in the old and new pleading might be contradictory. -There is no conflict with the Elayda Case and Rule 10 for once there is amendment, the judicial pleading becomes extrajudicial, and you can now contradict. -An issue not raised in the pleading but raised on trial, there can be amendment to conform to evidence allowing the party to contradict his pleading by presenting a contrary evidence for so long as there is: (1) no objection and (2) the interest of justice is not subserved. PRESUMPTIONS PRESUMPTIONS DEFINED -The fact is established without need of evidence, without need of inference from established facts. -Does not necessarily excuse the party invoking presumption from presenting evidence because it dispenses only the evidence in so far as the ultimate fact is concern but there is still need to present evidence to prove the fact where inference is founded. Principle: presumption does not take the place of evidence, it only affects the burden of proof. You still have to prove the basic facts. Maglaya v. Angeles There is still need to prove the basic fact where the presumption is based. The petitioner in this case alleged that the respondent was not able to present evidence to prove that she is illegitimate (she insists she is legit therefore should be appointed as administratrix). Having been born during the marriage of her mother and the deceased, she is presumed legitimate. The basic fact of marriage in this case should

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have been proved first by the petitioner, before petitioner makes presumption that she is legitimate, this, she failed to do so. KINDS OF PRESUMPTION 1. Conclusive Presumption cannot be controverted by other evidence.

a. Estoppel in Pais when a person by his acts intentionally misled others to believe that his acts are truthful. When a third party has acted based on his representation, he who made the representation cannot take a position contradictory to his representations during a dispute arising from the representation. EXAMPLE: When you have already received benefit from a contract which in reality is inexistent, you have to make good of it as it now becomes conclusive to you. You cannot later on deny responsibility and assail its legality. You are now estopped. b. Estoppel by Laches unreasonable delay in invoking a right leading a third party to believe that nothing is wrong, prevents you from seeking relief in court. (you know this! hehe) c. Existence of Landlord-Tenant relationship the tenant cannot assail better ownership right than the landlord. CASE: Datalift Movers v. Belgravia Realty Facts PNR owned a lot. It leased out the lot to Sampaguita Brokerage, Inc. Sampaguita thereafter entered into a special arrangement with its sister company, Belgravia Realty & Development Corporation (Belgravia for short) whereby the latter would put up on the lot a warehouse for its own use. True enough, Belgravia did put up a warehouse. However, instead of using the said warehouse for itself, Belgravia sublet it to petitioner Datalift. After expiration of the contract, Datalift continued to occupy the property. It thereafter questioned the increases made byBelgravia. Issue: WON datalift can question Belgravias ownership over the property. Ruling: No. Sec 2, Rule 131 under conclusive presumption, the tenant (Datalift) is not permitted to deny title to his landlord so long as the lessor-lessee relationship exists. The lessee by any proof cannot overturn the conclusive presumption that Belgravia has better title. 2. Disputable Presumption presumptions that can be overcome by controverting evidence. a. Presumption of Innocence b. Presumption of Prudence; that everyone is presumed to take ordinary care in his functions/affairs. CASE: Reyes v. BPI The SC sided with BPI on the presumption of regularity and good faith in their function as no bad faith was shown. BPIs claim that there was only a fund transfer from savings to express teller account and no

additional deposit (Reyes claimed there was a deposit) made was supported by the tellers tapeas no deposit was reflected therein, only a P100,000 fund transfer. c. Presumption of the identity of the taker and the doer of the entire act by one in possession of the property. -The person caught in possession of the stolen item is presumed to be the thief. Compare this with Art. 541 and 539 of the civil code ( which protects the possessor of the property in the concept of an owner to enjoy such presumption) DISTINGUISH FROM THE PROVISIONS IN THE CIVIL CODE Art. 539, NCC any possessor is entitled to enjoy his possession and entitled to the protection of his possession. Art. 541, NCC possessor under claim of ownership is presumed to be the owner and should be respected of his possession. [If it is robbery with homicide and you are in possession of the thing robbed then you are presumed to be the robber and the killer at the same time. This presumption only holds true only when the possessor cannot explain as to how he came into possession of such thing.] RECONCILE THE PRESUMPTION AND THE CIVIL CODE Edu v. Gomez (Gomez vs. Edu) [Atty. Torregosa got confused too] The policemen cannot just seize a carnapped car found to be in possession of X, they should have filed a case first. After filing the case, the burden of proving ownership shall now rest on the possessor of the car. This is in accordance with the presumption that the possessor of the property is the owner thereof. d. Presumption that evidence willfully suppressed when presented will be adverse. -Suppression must be willful. GR: evidence willfully suppressed when presented will be adverse EXC: i. When the evidence deemed suppressed is at the disposal of the parties ii. When the evidence allegedly suppressed is merely corroborative or cumulative iii. If the suppression is in the exercise of a right such as privilege communication between: lawyer-client, priest-penitent, doctor-patient etc. CASE: Blue Cross v. Olivares Facts Neomi entered into a health care program excepting from the coverage pre-existing ailments. 38 days after effectivity, Neomi suffered stroke. Blue Cross refused payment alleging that it is excepted and that there was suppression of evidence when Neomi refuse to present Dr. Saniels report. Issue: WON there was suppression of evidence that is adverse when presented. Ruling: Petitioner never presented any evidence to prove that respondent Neomi's stroke was due to a preexisting condition. It merely speculated that Dr. Saniel's report would be adverse to Neomi, based on her invocation of the doctor-patient privilege. This was a disputable presumption at best. xxx Suffice it to say that this presumption does not apply if (a) the evidence is at the disposal of both parties; (b) the suppression was not willful; (c) it is merely corroborative or cumulative and (d) the suppression is an exercise of a privilege. Here, respondents' refusal to present or allow the presentation of Dr. Saniel's report was justified. It was privileged communication between physician and patient.

e. Presumption of Death Absence of : 7 years - Normal circumstances 10 yrs. - For purposes of opening succession 5 yrs - if the person missing is at least 75 y/o 4 yrs -if the person is in danger of death

Article 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (n)

NOTE: The presumption applies only when there is no preponderance of evidence that the person has died. If there is by preponderance of evidence showing the death, then the presumption does not apply. CASES: Eastern shipping Line vs. Lucero Facts Capt. Lucero was able to send radio messages that they encountered boisterous weather condition. The ship was confirmed to be lost. Subsequently, the heirs of the crew were given their death benefits but Mrs. Lucero wanted to claim her monthly allotment on the ground that since 4 years have not yet elapsed, no presumption of death arose. Issue: WON there is a need to wait for 4 years to presume Capt. Lucero dead. Ruling The whereabouts of the ship traversing from Hongkong to Manila is known when the captain was able to send 3 radio messages detailing that they met strong winds coupled with turbulent waters, followed by jettisoning and abandonment of the ship. There is thus enough evidence to show the circumstances attending the loss and disappearance of the M/V Eastern Minicon and its crew. The foregoing facts, quite logically are sufficient to lead Us to a moral certainty that the vessel had sunk and that the persons aboard had perished with it. Upon this premise, the rule on presumption of death under Article 391 (1) of the Civil Code must yield to the rule of preponderance of evidence. As this Court said in Joaquin vs. Navarro "Where there are facts, known or knowable, from which a rational conclusion can be made, the presumption does not step in, andthe rule of preponderance of evidence controls." Victoria Lines vs. WCC Facts

A crew who was in deep slumber hear cries of fire. When he woke up, he jumped off the ship and was never found again. His father claimed death benefits but Victoria Shipping opposed on the ground that , in the absence of proof of death, the nearest approach to the matter is the provision on the presumption of death established in Article 391 of the Civil Code providing that a person to be presumed dead must be unheard of for at least four years. Issue: WON the presumption must apply. Ruling - the presumption does not apply also since the whereabouts of the ship was known; that it gutted fire and that the deceased was last seen jumping overboard. (1) the vessel was accounted for (2) the preponderance of evidence showed that the crew died. No need of presumption. f. Presumption of Survivorship - applies when the death took place on a calamity. Not for succession purposes. (this is not applied for succession purposes) Rule 131, Sec. 3 (jj). That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and the age of the sexes, according to the following rules: 1. If both were under the age of fifteen years, the older is deemed to have survived; 2. If both were above the age sixty, the younger is deemed to have survived; 3. If one is under fifteen and the other above sixty, the former is deemed to have survived; 4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived, if the sex be the same, the older; 5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived.

g. Presumption of Simultaneity of Death- applies when the purpose is succession When two or more persons are called to succeed, the one who alleges has the burden of proof as to who died first, in absence of evidence it is presumed that BOTH DIED SIMULTANEOUSLY AND NO SUCCESSION WOULD TAKE PLACE. The sex, age, and strength of the party wont matter. Rule 131, Sec. 3 (kk). That if there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall be considered to have died at the same time. (5a)

Good luck! -nothing follows-

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