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CRIMINAL LAW REVIEWER

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Evidence

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UP LAW 2012

REMEDIAL LAW TEAM 2012

Subject Head | Eden Mopia 

Evidence Subject Head |Arianne Cerezo

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Comsti • Rose Andrea Milao

Armando Mislang, Jr. • 

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Elaine Tiu

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REMEDIAL LAW REVIEWER

04Evidence

REMEDIAL LAWriminal Procedure 

Civil ProcedureEvidence 

pecial Proceedings

I. General PrinciplesII. Judicial Notice and Judicial

AdmissionsIII. Object (Real) EvidenceIV. Documentary Evidence

V. Testimonial EvidenceVI. Offer and Objection

I. GENERAL PRINCIPLESA. Concept of EvidenceB. Scope of the Rules of EvidenceC. Evidence in Civil Cases vs. Evidence in

Criminal CasesD. Proof Versus EvidenceE. Factum Probans Versus Factum

ProbandumF. Admissibility of EvidenceG. Burden of Proof and Burden of Evidence

H. PresumptionsI. Liberal Construction of the Rules of

EvidenceJ. Quantum of Evidence (Weight And

Sufficiency of Evidence)

A. Concept of Evidence

The means, sanctioned by these rules, ofascertaining in a judicial proceeding, the truthrespecting a matter of fact [sec. 1, Rule 128]  

B. Scope of the Rules of Evidence

GENERAL RULE: Principle of uniformity  Rules of evidence shall be the same in all courts andin all trials and hearings. [sec. 2, Rule 128]  

EXCEPTIONS: If otherwise provided by:(1)

 

Law (e.g., 1987 Constitution, statutes);(2)

 

Rules of Court. [sec. 2, Rule 128]  

C. Evidence in Civil Cases VersusEvidence in Criminal Cases

In Civil Cases In Criminal CasesPreponderance of

evidence [sec. 1,Rule 133]  

Proof beyond reasonable

doubt [sec. 2, Rule 133]  

Offer ofcompromise NOTan admission of anyliability [sec. 27,Rule 130]  

Offer of compromise by theaccused may be received inevidence as an impliedadmission of guilt (except forquasi-offenses or thoseallowed by law to becompromised) [sec. 27, Rule130]  

Presumption ofinnocence doesNOT apply

Presumption of innocence aconstitutional guarantee onthe accused [sec. 14, Art. III]  

D. Proof Versus Evidence

Proof EvidenceNOT the evidence itself,but the probative effectof evidence

The medium or means bywhich a fact is proved ordisproved

E. Factum Probans Versus Factum

Probandum

Factum Probans Factum ProbandumFacts or materialevidencing theproposition

The proposition to beestablished

The evidentiary facttending to prove thefact in issue

The fact in issue and towhich the evidence isdirected

Classification of evidence

  Object, documentary, and testimonial

Object Documentary TestimonialAddressed tothe senses ofthe court. [Rule130, Sec. 1]  

Consist ofwritings or anymaterialcontainingletters, words,numbers,figures,symbols orother modes ofwrittenexpressionsoffered asproof of theircontents [Rule130, sec. 2]

Testimony ordeposition of awitness

  Direct and circumstantial evidence

Direct Evidence CircumstantialProves the fact indispute without the aidof any inference orpresumption

Indirectly proves a factin issue through aninference  drawn fromthe evidenceestablished

  Positive and negative evidence

Positive Evidence Negative Evidence

Witness affirms that afact did or did notoccur

Witness states he/shedid not see or know ofthe occurrence of afact (e.g., denial)

F. Admissibility of Evidence

Requisites for admissibility of evidence

Evidence is admissible when it is(1)

 

relevant to the issue AND

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(2) 

not excluded by law or the ROC. [Rule 128,Sec. 3]

Relevance of evidence and collateralmatters

RelevancyEvidence must have such a relation to the fact inissue as to induce belief in its existence or non-

existence. [Sec. 4, Rule 128]

Collateral matters – matters other than the fact inissue which are offered as a basis for inference as tothe existence or non-existence of the facts in issue 

General Rule: Evidence on collateral matters is NOTallowed. [Sec. 4, Rule 128]

Exception: When it tends in any reasonable degreeto establish the im/probability of fact in issue. [Sec.4, Rule 128]

NOTE: What is prohibited by the Rules is notevidence of all collateral matters, but evidence of

irrelevant collateral facts. 

CompetenceEvidence not excluded by (i) law or (ii) the ROC. 

Exclusionary rules of evidence by law are eitherconstitutional or statutory. 

Constitutional StatutoryUnreasonable searchesand seizures; privacy ofcommunication andcorrespondence. [secs.2-3, Art. III]  

Lack of documentarystamp tax to documentsrequired to have onemakes such documentinadmissible as evidencein court until the requisitestamp/s shall have beenaffixed thereto andcancelled. [Sec. 201,NIRC]  

Miranda Rights: right tocounsel, prohibition oftorture, force,violence, threat,intimidation or othermeans which vitiatethe free will;prohibition of secretdetention places,solitary,

incommunicado. [sec.12, Art. III]  

Any communicationobtained by a person, notbeing authorized by allthe parties to any privatecommunication, bytapping any wire/cable orusing any otherdevice/arrangement tosecretlyoverhear/intercept/record

such information by usingany device, shall not beadmissible in evidence inany judicial/quasi-judicial/legislative/administrative hearing orinvestigation. [Secs. 1 and4, R.A. 4200 (Wire-Tapping Act)]  

No person shall becompelled to be awitness againsthimself. [Sec.17,Art.III]  

Rules on ElectronicEvidence [sec. 1,Rule 9,]  

  Under the ROC, Rule 130 is the applicable rulein determining the admissibility of evidence. 

  As distinguished from credibility of evidence 

Competence Credibility

Eligibility of evidenceto be received as such

Worthiness of belief;―believability‖ 

Doctrines of admissibility

Multiple admissibilityWhere the evidence is relevant and competent fortwo or more purposes, such evidence shall beadmitted for any or all the purposes for which it isoffered, provided  it satisfies all the requisites of lawfor its admissibility therefor.

Conditional admissibilityWhere the evidence at the time of its offer appearsto be immaterial or irrelevant unless it is connectedwith the other facts to be subsequently proved, suchevidence may be received,  provided   that the otherfacts will be proved thereafter; otherwise, the

evidence already given shall be stricken out.

Curative admissibility Where the court has admitted incompetent evidenceadduced by the adverse party, a party has a right tointroduce the same kind of evidence in his/herbehalf.

Direct and circumstantial evidence 

Direct Evidence CircumstantialProves the fact indispute without  the aidof any inference or

presumption

Indirectly proves a factin issue through aninference  drawn from

the evidence established

Positive and negative evidence

Positive Evidence Negative EvidenceWitness affirms that afact did or did not occur

Witness states he/shedid not see or know ofthe occurrence of a fact(e.g., denial)

Competent and credible evidence

Competence CredibilityEligibility of evidence to

be received as such

Worthiness of belief;

―believability‖ 

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G. Burden of Proof and Burden ofEvidence

Burden of Proof Burden of EvidenceDuty of a party topresent evidence on thefacts in issue necessaryto establish his/herclaim or defense by the

amount of evidencerequired by law [Sec. 1,Rule 131]  

Duty of a party to goforward with theevidence to overthrowany  prima facie presumption against

him/her [Bautista vSarmiento (1985)]  

Does not shiftthroughout the trial

Shifts from party toparty depending uponthe exigencies of thecase in the course of thetrial

Generally determined bythe pleadings filed bythe party

Generally determined bythe developments at thetrial, or by the provisionsof substantive orprocedural law

H. Presumptions

1.  Conclusive presumptions2.  Disputable presumptions

Conclusive DisputablePresumption becomesirrebuttable uponpresentation of theevidence

Satisfactory ifuncontradicted, butmay be contradictedand overcome by otherevidence [sec. 3, Rule131]

I. Liberal Construction of the Rules of

Evidence

Like all other provisions under the ROC, rules ofevidence must be liberally construed. [sec. 6, Rule1]

Rules on Electronic Evidence shall likewise beconstrued liberally. [sec. 2, Rule 2, Rules onElectronic Evidence]

J. Quantum of Evidence (Weight AndSufficiency of Evidence)

Proof beyond reasonable doubt

Applicable quantum of evidence in criminal cases [sec. 2, Rule 133]  

Only moral certainty is required –  that degree ofproof which produces conviction in an unprejudicedmind. [sec. 2, Rule 133]  

The burden is on the prosecution to prove guiltbeyond reasonable doubt, NOT on the accused toprove his/her innocence. [Boac v People (2008)]  

The prosecution must not rely on the weakness ofthe evidence of the defense. [Ubales v People(2008); People v Hu (2008)]  

Preponderance of evidence

Applicable quantum of evidence in civil cases  [sec.1, Rule 133]

Means that the evidence adduced by one side is, as awhole, superior to or has greater weight than that ofthe other. [Habagat Grill v. DMC-Urban PropertyDeveloper, Inc.(2005); Bank of the Philippine Islandsv Reyes (2008)]

In determining preponderance of evidence, the courtmay consider: (1)  All the facts and circumstances of the case;(2)

 

The witnesses‘ manner of testifying, theirintelligence, their means and opportunity ofknowing the facts to which they testify, thenature of the facts to which they testify, theim/probability of their testimony;

(3) 

The witnesses‘ interest or want of interest, and

also their personal credibility so far as the samemay legitimately appear upon the trial;(4)

 

Number of witnesses (although preponderance isnot necessarily equated with the number ofwitnesses). [sec. 1, Rule 133]  

Substantial evidence

Degree of evidence required in cases filed beforeadministrative or quasi-judicial bodies [sec. 5, Rule133]  

The amount of relevant evidence which a reasonablemind might accept as adequate to support aconclusion [sec. 5, Rule 133]

Clear and convincing evidence

Standard of proof required in granting or denyingbail in extradition cases  [Government of HongkongSpecial Administrative Region v Olalia, Jr. (2007)]  

Intermediate in character – lower than proof beyondreasonable doubt, but higher than preponderance ofevidence

II. JUDICIAL NOTICE AND

JUDICIAL ADMISSIONSA. What Need Not be ProvedB. Matters of Judicial NoticeC. Judicial AdmissionsD. Judicial Notice of Foreign Laws, Law of

Nations and Municipal Ordinance

A.  What Need Not be Proved

(1) 

Facts of Judicial Notice(2)  Judicial Admissions(3)  Conclusive Presumptions

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[NOTE: Discussed in detail in the succeedingsubsections.]

B.  Matters of Judicial Notice

Mandatory (Without need of introductionof evidence)

(1) 

Existence and territorial extent of states;(2)  Their political history, forms of government,

and symbols of nationality;(3)

 

Law of nations;(4)

 

Admiralty and maritime courts of the world andtheir seals;

(5) 

Political constitution and history of thePhilippines;

(6) 

Official acts of the legislative, executive andjudicial departments of the Philippines;

(7) 

Laws of nature;(8)

 

Measure of time; and(9)

 

Geographical divisions. [Sec. 1, Rule 129]

Discretionary

(1) 

Matters of public knowledge;(2)

 

Matters capable of unquestionabledemonstration; and

(3) 

Matters ought to be known to judges because oftheir judicial functions. [sec. 2, Rule 129]

Judicial notice is NOT judicial knowledge.

With Respect to Court’s Own Acts and Records: Acourt MAY take judicial notice of its own acts andrecords in the same case. [Republic v Court of Appeals (1997)]  

With Respect to Records of Other Cases

  General Rule: Courts CANNOT take judicialnotice of the contents or records of other caseseven if   both cases may have been tried or   are pending before the same judge. [Prieto v. Arroyo (1965)]  

  Exceptions:(1)

 

When there is no objection, with theknowledge of the opposing party, thecontents of said other case are clearlyreferred to and adopted or read into therecord of the latter; or

(2)  When the original or part of the records ofthe case is actually withdrawn from the

archives at the court‘s discretion upon therequest, or with the consent, of the parties,and admitted as part of the record of thepending case [Tabuena v. CA (1991)]  

C.  Judicial Admissions

RequisitesTo be a judicial admission, the same:(1)  must be made by a party to the case;(2)  must be made in the course of the proceedings

in the same case; and

(3) 

may be verbal or written. [sec. 4, Rule 129]  

Effect of judicial admissions

(1)  It does NOT require proof. [sec. 4, Rule 129](2)  It is conclusive upon the party making it, and

hence, CANNOT be contradicted. [sec. 4, Rule129]  

An original complaint, after being amended, loses itscharacter as a judicial admission, which would haverequired no proof. It becomes merely an extra-judicial admission requiring a formal offer to beadmissible. [Torres v CA (1984)]  

A party who judicially admits a fact cannot laterchallenge that fact as judicial admissions are awaiver of proof; production of evidence is dispensedwith. [Alfelor v Halasan (2006]  

How judicial admissions may becontradicted

As an exception to the general rule, judicialadmissions may be contradicted only by showingthat:(1)

 

It was made through palpable mistake;(2)

 

No such admission was made.

Conclusive presumptions

Instances of Conclusive Presumptions [Sec. 2,Rule 131]  

(1) 

Whenever a party has, by his owndeclaration/act/omission, intentionally anddeliberately led another to believe a particularthing is true and to act upon such belief, he

cannot, in any litigation arising out of suchdeclaration/act/omission, be permitted tofalsify it.

(2)  The tenant is not permitted to deny the title ofhis landlord at the time of the commencementof the relation of landlord and tenant betweenthem.

As Distinguished from DisputablePresumptions [Sec. 3, Rule 131]  

(1) 

Person is innocent of a crime or wrong;(2)

 

Unlawful act is done with an unlawful intent; (3)

 

Person intends the ordinary consequences of his

voluntary act;(4)

 

Person takes ordinary care of his concerns;(5)

 

Evidence willfully suppressed would be adverseif produced;

(6)  Money paid by one to another was due to thelatter;

(7)  Thing delivered by one to another belonged tothe latter;

(8) 

Obligation delivered up to the debtor has beenpaid;

(9) 

Prior rents or installments had been paid when areceipt for the later ones is produced;

(10) 

A person found in possession of a thing taken in

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08

the doing of a recent wrongful act is the taker and doer of the whole act; otherwise, thatthings which a person possesses or exercises actsof ownership over, are owned by him;

(11) Person in possession of an order on himself forthe payment  of the money or the delivery ofanything has paid the money or delivered thething accordingly; 

(12) Person acting in public office was regularly appointed or elected to it;

(13) 

Official duty has been regularly performed;(14)

 

A court or judge acting as such, whether in thePhilippines or elsewhere, was acting in thelawful exercise of jurisdiction;

(15) 

All the matters within an issue raised in a casewere laid before the court and passed upon byit; all matters within an issue raised in a disputesubmitted for arbitration were laid beforearbitrators and passed upon by them;

(16) Private transactions have been fair and regular;(17) Ordinary course of business has been followed;(18) There was a sufficient consideration for a

contract;(19) Negotiable instrument was given or indorsed for

a sufficient consideration;(20)

 

An indorsement of negotiable instrument wasmade before the instrument was overdue and atthe place where the instrument is dated;

(21) 

A writing is truly dated;(22)

 

Letter duly directed and mailed was received inthe regular course of the mail;

(23) 

Presumptions concerning absence:(a)

 

Ordinary but continued absence of:(i)

 

7 years, it being unknown WON theabsentee still lives, he is considereddead for all purposes, except for thoseof succession

(ii)  10 years—the absentee shall beconsidered dead for the purpose of

opening his succession; but if hedisappeared after the age of 75 years,an absence of 5 years shall besufficient to open his succession

(iii) 

4 consecutive years—the spouse presentmay contract a subsequent marriage ifs/he has a well-founded belief that theabsent spouse is already dead; butwhere there is danger of death, anabsence of only 2 years shall besufficient for remarriage

(b)  Qualified absence(i)  A person on board a vessel lost during a

sea voyage, or an aircraft which ismissing, who has not been heard of for

4 years since the loss of the vessel oraircraft

(ii)  A member of the armed forces who hastaken part in armed hostilities, and hasbeen missing for 4 years

(iii) 

A person who has been in danger ofdeath under other circumstances andwhose existence has not been knownfor 4 years

(24) 

Acquiescence  resulted from a belief that thething acquiesced in was conformable to thelaw/fact;

(25) Things have happened according to the ordinary

course of nature and ordinary nature habits oflife;

(26) Persons acting as copartners have entered into acontract of co-partnership; 

(27) A man and woman deporting themselves ashusband and wife have entered into a lawfulcontract of marriage;

(28) Property acquired by a man and a woman whoare capacitated to marry each other and wholive exclusively with each other as husband and

wife without the benefit of marriage or under avoid marriage, has been obtained by their joint efforts, work or industry;

(29) 

In cases of cohabitation by a man and a womanwho are not capacitated to marry each otherand who have acquired property through theiractual joint contribution of money, property orindustry,  such contributions and theircorresponding shares including joint deposits ofmoney and evidences of credit are equal;

(30) Presumptions governing children of women whocontracted another marriage within 300 daysafter termination of her former marriage (in theabsence of proof to the contrary):

When Childwas Born

Presumption

Before 180days after thesolemnizationof thesubsequentmarriage

Considered to have beenconceived during the formermarriage, provided it be bornwithin 300 days after thetermination of the formermarriage

After 180 daysfollowing thecelebration ofthe subsequentmarriage

Considered to have beenconceived during the subsequentmarriage, even though it be bornwithin the 300 days after thetermination of the formermarriage.

(31) A thing once proved to exist continues as long asis usual with things of the nature;

(32) 

The law has been obeyed;(33)

 

A printed/published book, purporting to beprinted/published by public authority, was soprinted/published;

(34) 

A printed/published book, purporting to containreports of cases adjudged in tribunals of thecountry where the book is published, containscorrect reports of such cases;

(35) A  trustee or other person whose duty it was toconvey real property to a particular person hasactually conveyed it to him  when suchpresumption is necessary to perfect the title ofsuch person or his successor in interest;

(36) Presumptions regarding survivorship: (Applicablefor all purposes except succession)(a)  When 2 persons perish in the same

calamity,(b)

 

and it is not shown who died first,(c)

 

and there are no particular circumstancesfrom which it can be inferred,

(d) 

the survivorship is determined from theprobabilities resulting from the strengthand the age of the sexes:

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SituationPerson presumed to have

survivedBoth < 15 y/o The older

Both > 60 y/o The younger

One < 15 y/o,the other > 60 y/o

The one 15 and < 60y/o, of different sexes

The male

Both > 15 and 60 y/o,and the other betweenthose ages

The one between thoseages

(37) 

As between 2 or more persons called to succeedeach other: If there is a doubt as to which ofthem died first, whoever alleges the death ofone prior to the other, shall prove the same. Inthe absence of proof, they shall be consideredto have died at the same time.

D.  Judicial Notice of Foreign

Laws, Law of Nations andMunicipal Ordinance

Foreign Laws  General Rule: Courts cannot take judicial notice

of foreign laws. [Yao-Kee v. Sy-Gonzales (1988)]  

  Exceptions: The court may take judicial notice ofthe foreign law:(1)

 

Under the Doctrine of ProcessualPresumption: In the absence of proof, theforeign law will be presumed to be the sameas the laws of the jurisdiction hearing thecase. [Northwest Orient Airlines v Court of Appeals (1995)]  

(2) 

Where the foreign law is within the actualknowledge of the court such as when the lawis generally well-known, had been ruled uponin previous cases before it and none of theparties claim otherwise [PCIB v Escolin (1974)]  

(3) 

When the foreign law is part of a publishedtreatise, periodical or pamphlet and thewriter is recognized in his/her profession orcalling as expert in the subject [sec. 46, Rule130]  

Law of NationsThe Philippines adopts the generally acceptedprinciples of international law as part of the law of

the land. [Sec. 2, Art. II, 1987 Constitution]

Being part of the law of the land, they are thereforein the nature of local laws, and hence, subject tomandatory judicial notice under sec. 1 of Rule 129. 

Municipal OrdinancesGeneral Rule: Courts are NOT mandated to takejudicial notice of municipal ordinances. [City ofManila v. Garcia (1967)]  

Exception: If the charter of the concerned cityprovides for such judicial notice [City of Manila v.Garcia (1967)]  

III. OBJECT (REAL) EVIDENCEA. Nature of Object EvidenceB. Requisites for AdmissibilityC. Categories of Object EvidenceD. Demonstrative EvidenceE. View of an Object or SceneF. Chain of Custody in Relation to Section 21

of the Comprehensive Dangerous DrugsAct of 2002

G. Rule on DNA Evidence (A.M. No. 06-11-5-SC)

A. Nature of Object Evidence

Those addressed to the senses of the court [sec. 1,Rule 130]  

The right against self-incrimination CANNOT beinvoked against object evidence.

B. Requisites for Admissibility

Relevant

General Rule: When an object is relevant to the factin issue, it may be exhibited to, examined or viewedby the court. [Sec. 1, Rule 130]  

Exceptions: Court may refuse exhibition of objectevidence and rely on testimonial evidence alone if:(1)  Exhibition is contrary to public policy, morals or

decency;(2)  It would result in delays, inconvenience,

unnecessary expenses, out of proportion to theevidentiary value of such object; [People v.Tavera]  

(3) 

Evidence would be confusing or misleading.[People v. Saavedra]  

Competent

Evidence be AuthenticatedTo authenticate  the object is to show that theobject is the very thing that is either the subjectmatter of the lawsuit or the very one involved to

prove an issue in the case.

Authentication be Made by Competent WitnessTo authenticate the object, the witness must havethe capacity to identify the object as the very thinginvolved in the litigation.

A witness can testify to those facts which he/sheknows of his/her personal knowledge; that is, whichare derived from his/her own perception. [sec. 36,Rule 130]  

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Formally Offered

The court shall consider NO evidence which has notbeen formally offered. [sec. 34, Rule 132]

C. Categories of Object Evidence

The ―Thing Itself‖   Unique Objects

- Objects that have readily identifiable marks,e.g., a caliber 45 pistol by virtue of its serialnumber

  Objects Made Unique

-  Objects with no unique characteristic but aremade readily identifiable, e.g., a typicalkitchen knife with identifying marks placed onit by the witness

  Non-Unique Objects-  Objects with no identifying marks and cannot

be marked, e.g., narcotic substances

D. Demonstrative EvidenceNot the actual thing, rather it represents or―demonstrates‖  the real thing, E.g., photographs,motion pictures and recordings

Audio, photographic and video evidence of events,acts or transactions shall be admissible provided itshall be:(1)

 

shown, presented or displayed to the court, and(2)

 

identified, explained or authenticated(a)

 

by the person who made the recording, or(b)

 

by some other person competent to testifyon the accuracy thereof [sec. 1, Rule 11,Rules on Electronic Evidence]  

Ephemeral electronic communicationsRefers to telephone conversations, text messages,chatroom sessions, streaming audio, streamingvideo, and other electronic forms of communicationthe evidence of which is not recorded or retained.[sec. 1(k), Rule 2, Rules on Electronic Evidence]  

Shall be proven(1)

 

by the testimony of a person who was a party tothe same;

(2) 

by the testimony of a person who has personalknowledge thereof; or

(3) 

in the absence or unavailability of suchwitnesses, by other competent evidence [sec. 2,Rule 11, Rules on Electronic Evidence]  

When recorded, the communication ceases to beephemeral and shall be proven in the same manneras proving audio, photographic and video evidence[sec. 2, Rule 11, Rules on Electronic Evidence]. 

E.  View of an Object or Scene

When an object is relevant to the fact in issue, itmay be viewed by the court. [Sec. 1, Rule 130]

F.  Chain of Custody in Relation toSection 21 of theComprehensive DangerousDrugs Act of 2002

Meaning of chain of custodyA method of authenticating evidence which requiresthat the admission of an exhibit be preceded byevidence sufficient to support a finding that thematter in question is what the proponent claims it tobe [Lopez v People (2008), as cited in People v DelaCruz (2008) and People v Agulay (2008)]

In Relation to Drug CasesThe apprehending team having initial custody andcontrol of the drugs shall:(1)  physically inventory, and(2)

 

photograph the same,(3)

 

in the presence of(a)

 

accused or the person/s from whom the

drugs were seized, or his/herrepresentative or counsel

(b) 

representative from the media and theDepartment of Justice

(c)  any elected public official(4)  who shall be required to sign the copies of the

inventory and be given a copy thereof. [sec. 21, Art. II, R.A. 9165 or the ComprehensiveDangerous Drugs Act of 2002]  

Non-compliance with sec. 21 of R.A. 9165,particularly the making of the inventory and theirphotographing of the drugs confiscated will notrender the drugs inadmissible in evidence. The issueif there is non-compliance with the law is not

admissibility, but of weight –  evidentiary merit orprobative value. [People v Del Monte (2008)]  

G.  Rule on DNA Evidence (A.M. No.06-11-5-SC)

Meaning of DNA

DNA evidenceThe totality of the DNA profiles, results and othergenetic information directly generated from DNAtesting of biological samples. [Sec. 3c]  

Application for DNA testing orderWith prior court order(1)

 

The appropriate court may, at any time, either(i) motu proprio  or (ii) on application of anyperson who has a legal interest in the matter inlitigation, order a DNA testing.

(2)  Such order shall issue after due hearing andnotice to the parties upon a showing of thefollowing:(a)

 

A biological sample exists that is relevant tothe case;

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(b) 

The biological sample: (i) was notpreviously subjected to the type of DNAtesting now requested; or (ii) waspreviously subjected to DNA testing, but theresults may require confirmation for goodreasons;

(c)  The DNA testing uses a scientifically validtechnique;

(d)  The DNA testing has the scientific potentialto produce new information that is relevant

to the proper resolution of the case; and(e)

 

The existence of other factors, if any,which the court may consider as potentiallyaffecting the accuracy of integrity of theDNA testing. [Sec. 4]  

Without prior court orderThis Rule shall not preclude a DNA testing, withoutneed of a prior court order, at the behest of anyparty. [Sec. 4]  

Post-conviction DNA testing; remedy

How Obtained(1)  Without need of prior court order(2)  Available to the prosecution or any person

convicted by final and executory judgment

Requisites:(1)

 

A biological sample exists(2)

 

Such sample is relevant to the case(3)

 

The testing would probably result in the reversalor modification of the judgment of conviction.[Sec. 6]  

Remedy if Results Favorable to the ConvictConvict or the prosecution may file a petition for awrit of habeas corpus in the court of origin, CA or SCor any member of said courts. [Sec. 10]  

General Rule: If the court, after due hearing, findsthe petition meritorious, it shall reverse or modifythe judgment of conviction and order the release ofthe convict. [Sec. 10]  

Exception: If continued detention is justified for alawful cause. [Sec. 10]  

Assessment of probative value of DNAevidence and admissibility

Factors in Assessing the Probative Value of DNAEvidence(1)  Chain of custody

(a) 

How the biological samples were collected(b)

 

How they were handled(c)

 

Possibility of contamination

(2) 

DNA testing methodology(a)

 

Procedure followed in analyzing thesamples

(b) 

Advantages and disadvantages of theprocedure

(c) 

Compliance with scientifically validstandards in conducting the tests

(3)  Forensic DNA laboratory(a)  Accreditation by any reputable standards-

setting institution(b)  Qualification of the analyst who conducted

the tests(c)  If not accredited, relevant experience of

the laboratory in forensic work and its

credibility

(4) 

Reliability of the testing result [Sec. 7]  

Rules on evaluation of reliability of theDNA testing Methodology

Factors that Determine the Reliability of the DNATesting Methodology (1)

 

Falsifiability of the principles or methods used(2)

 

Subject to peer review and publication of theprinciples or methods

(3) 

General acceptance of the principles or methodsby the scientific community

(4) 

Existence and maintenance of standards andcontrols to ensure the correctness of datagenerated

(5)  Existence of an appropriate referencepopulation database

(6)  General degree of confidence attributed tomathematical calculations used in comparingDNA profiles

(7) 

Significance and limitation of statisticalcalculations used in comparing DNA profiles

IV. DOCUMENTARY EVIDENCEA. Meaning of Documentary EvidenceB. Requisites for AdmissibilityC. Best Evidence RuleD. Rules on Electronic Evidence (A.M. No.

01-7-01- SC)E. Parol Evidence RuleF. Authentication and Proof of Documents

A.  Meaning of DocumentaryEvidence

Consist of writings or any material containingletters, words, numbers, figures, symbols or othermodes of written expressions offered as proof of

their contents [Rule 130, sec. 2]

To be deemed documentary evidence, such writingsor materials must be offered as proof of theircontents. If offered for some other purpose, theyconstitute OBJECT EVIDENCE.

B.  Requisites for Admissibility

(1) 

Relevant(2)  Competent

(a)  Document be Authenticated

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(b) 

Authenticated by Competent Witness(3)  Formally Offered in Evidence

C.  Best Evidence Rule

Meaning of the ruleWhen the subject of inquiry is the contents of adocument, no evidence shall be admissible otherthan the original document itself. [Rule 130, sec. 3]

When applicable (General Rule)Only when the subject of inquiry is the contents of adocument [Rule 130, sec. 3]  

The BER does not apply when the issue is only as toWON such document was actually executed or in thecircumstances relevant to its execution. [People vTandoy (1990)]

Meaning of original

Original document(1)  One the contents of which are the subject of

inquiry

(2) 

All such copies of a executed at or about thesame time, and with identical contents

NOTE: Carbon copies are deemed duplicateoriginals. [People v Tan (1959)]

(3) 

All such entries made and repeated in theregular course of business, at/near the time ofthe transaction [Rule 130, sec. 4]  

Requisites for introduction of secondaryevidence (Exceptions to BER) [Rule 130,sec. 3]  

(1)  When the original has been lost or destroyed, orcannot be produced in court, without bad faithon the offeror‘s part 

(2)  When the original is in the custody or under thecontrol of the party against whom it is offered,and the latter fails to produce it afterreasonable notice

(3) 

When the original consists of numerous accountsor other documents which cannot be examinedin court without great loss of time, and the factsought to be established from them is only thegeneral result of the whole

(4) 

When the original is a public record in thecustody of a public officer or is recorded in apublic office

D.  Rules on Electronic Evidence(A.M. No. 01-7-01- SC) 

Meaning of electronic evidence;electronic data message

Electronic document(1)  Information or the representation of

information, data, figures, symbols or othermodes of written expression,

(2)  described or however represented, by which aright is established or an obligationextinguished, or by which a fact may be provedand affirmed,

(3)  which is received, recorded, transmitted, storedprocessed, retrieved or produced electronically.

(4) 

It includes digitally signed documents and anyprint-out or output, readable by sight or othermeans, which accurately reflects the electronicdata message or electronic document.

For purposes of these Rules, the term ―electronicdocument‖ may be used interchangeably withelectronic data message‖. 

Electronic data messageInformation generated, sent, received or stored byelectronic, optical or similar means

Probative value of electronic documents

or evidentiary weight; method of proof

Factors in assessing evidentiary weight ofelectronic evidence (Rule 7, §1)In assessing the evidentiary weight of an electronicdocument, the following factors may be considered:(1)  The reliability of the manner or method in which

it was generated, stored or communicated,including but not limited to(a)

 

input and output procedures,(b)

 

controls, tests and checks for accuracy andreliability of the electronic data message ordocument,

(c) 

in the light of all the circumstances as wellas any relevant agreement;

(2) 

The reliability of the manner in which itsoriginator was identified;

(3) 

The integrity of the information andcommunication system in which it is recorded orstored, including but not limited to thehardware and computer programs or softwareused as well as programming errors;(a)  Whether the information and

communication system or other similardevice was operated in a manner that didnot affect the integrity of the electronicdocument, and there are no otherreasonable grounds to doubt the integrity ofthe information and communication system

[Rule 7, sec. 2];(b) 

Whether the electronic document wasrecorded or stored by a party to theproceedings with interest adverse to that ofthe party using it [Rule 7, sec. 2]; or

(c) 

Whether the electronic document wasrecorded or stored in the usual and ordinarycourse of business by a person who is not aparty to the proceedings and who did notact under the control of the party using it[Rule 7, sec. 2]  

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(4) 

The familiarity of the witness or the person whomade the entry with the communication andinformation system;

(5)  The nature and quality of the information whichwent into the communication and informationsystem upon which the electronic data messageor electronic document was based; or

(6)  Other factors which the court may consider asaffecting the accuracy or integrity of theelectronic document or electronic data

message.

In any dispute involving the integrity of theinformation and communication system in which anelectronic document or electronic data message isrecorded or stored, the court may consider, amongothers, the following factors:(1)  Whether the information and communication

system or other similar device was operated in amanner that did not affect the integrity of theelectronic document, and there are no otherreasonable grounds to doubt the integrity of theinformation and communication system;

(2)  Whether the electronic document was recordedor stored by a party to the proceedings withinterest adverse to that of the party using it; or

(3) 

Whether the electronic document was recordedor stored in the usual and ordinary course ofbusiness by a person who is not a party to theproceedings and who did not act under thecontrol of the party using it.

Text messages have been classified as ―ephemeralelectronic communication” under Section 1(k), Rule2 of the Rules on Electronic Evidence, and ―shall beproven by the testimony of a person who was a partyto the same or has personal knowledge thereof.‖[Vidallon-Magtolis v. Salud (2005)]  

Method of Proof(1)  Affidavit of Evidence [Rule 9, sec. 1]  

(a) 

Must state facts (i) of direct personalknowledge, or (ii) based on authenticrecords

(b) 

Must affirmatively show the competence ofthe affiant to testify on the matterscontained in the affidavit

(2) 

Cross-Examination of Deponent [Rule 9, sec. 2]  (a)  Affiant shall affirm the contents of the

affidavit in open court.(b)  Affiant may be cross-examined as a matter

of right by the adverse party.

Authentication of electronic documentsand electronic signatures (R5, ss1-3; R11,ss1-2, REE)

Of Electronic DocumentsBurden of Proving Authenticity: The person seekingto introduce the electronic document [Rule 5, sec.1]

Manner of Authentication:(1)

 

By evidence that it had been digitally signed bythe person purported to have signed the same;

(2)  By evidence that other appropriate security

procedures or devices as may be authorized bythe Supreme Court or by law for authenticationof electronic documents were applied to thedocument; or

(3)  By other evidence showing its integrity andreliability to the satisfaction of the judge. [Rule5, sec. 2]  

Of Electronic Signatures [Rule 6, sec. 2] (1)

 

By evidence that a method or process was

utilized to establish a digital signature andverify the same;

(2) 

By any other means provided by law; or(3)

 

By any other means satisfactory to the judge

Electronic documents and the hearsayrule

Business Records as Exception to the Hearsay RuleWhat Constitute Business Records: Records of anybusiness, institution, association, profession,occupation, and calling of every kind, whether ornot conducted for profit, or for legitimate purposes[Rule 2, sec. 1b]  

Requisites 

(1)  Made by electronic, optical or other similarmeans

(2)  Made at or near the time of or from transmissionor supply of information

(3)  Made by a person with knowledge thereof(4)

 

Kept in the regular course or conduct of abusiness activity,

(5) 

Such was the regular practice to make thememorandum, report, record, or datacompilation by electronic, optical or similarmeans

(6) 

Abovementioned facts shown by the testimony

of the custodian or other qualified witnesses[Rule 8, sec. 1]  

Exception to the Exception 

(1)  Untrustworthiness of the source of information(2)  Untrustworthiness of the method of the

preparation, transmission or storage thereof(3)  Untrustworthiness of the circumstances of the

preparation, transmission or storage thereof[Rule 8, sec. 2]  

Audio, photographic, video andephemeral evidence

If the foregoing communications are recorded orembodied in an electronic document, then theprovisions of Rule 5 (―Authentication of ElectronicDocuments‖) shall apply. 

E.  Parol Evidence Rule

Meaning of parol evidenceAny evidence aliunde, whether oral or written,which is intended or tends to vary or contradict a

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complete and enforceable agreement embodied in adocument.

Application of the parol evidence rule(General Rule)

When the terms of an agreement (including wills)have been reduced to writing, it is considered ascontaining all the terms agreed upon and there can

be, between the parties and their successors ininterest, no evidence of such terms other than thecontents of the written agreement. [Rule 130, sec.9]

It does not apply when 3rd parties are involved.[Lechugas v. CA (1986)]  

When parol evidence can be introduced

(1) 

When a party presents parol evidence to modify,explain or add to the terms of a writtenagreement

(2) 

Ground/s for presenting parol evidence is put inissue in the pleading 

Grounds for presenting parol evidence:

(1)  An intrinsic ambiguity, mistake or imperfectionin the written agreement

(2) 

Failure of the written agreement to express thetrue intent and agreement of the partiesthereto

(3) 

Validity of the written agreement(4)

 

Existence of other terms agreed to by theparties or their successors in interest after theexecution of the written agreement.

Distinctions between the best evidence

rule and parol evidence rule

Best Evidence Rule Parol Evidence RuleContemplates thesituation wherein theoriginal writing is notavailable and/or there isa dispute as to whethersaid writing is theoriginal

Presupposes that theoriginal document isavailable in court

Prohibits theintroduction ofsubstitutionary evidencein lieu of the originaldocument regardless ofWON it varies thecontents of the original

Prohibits the varying ofthe terms of a writtenagreement

Applies to all kinds ofdocuments

Applies only todocuments contractualin nature (Exception:wills)

Can be invoked by anyparty to an actionregardless of WON suchparty participated in thewriting involved

Can be invoked onlywhen the controversy isbetween the parties tothe written agreement,their privies or any partydirectly affected thereby

F.  Authentication and Proof ofDocuments

Meaning of authentication

  The preliminary step in showing theadmissibility of evidence 

 

Private and Public Documents 

Private Documents Public DocumentsWhen offered asauthentic, due executionand authenticity must beproved

Admissible withoutfurther proof of its dueexecution andauthenticity

Public and private documents

When a private writing requiresauthentication; proof of a private writing

PRIVATE DOCUMENTS

When offered as authentic General Rule: Authentication necessary

How to Prove Due Execution and Authenticity(1)

 

By anyone who saw the document executed orwritten; OR

(2)  By evidence of the genuineness of the signatureor handwriting of the maker [Rule 132, sec. 20]  

When evidence of authenticity of aprivate writing is not required (ancientdocuments)

Exception (1)  Ancient Documents –  authentication NOT

necessary provided that private document be: (a)

 

More than 30 years old;(b)

 

Produced from the custody in which itwould naturally be found if genuine; and

(c) 

Unblemished by any alterations orcircumstances of suspicion. [Rule 132, sec.21]  

(2)  That which it is claimed to be: Authenticationnot necessary [Rule 132, sec. 20]

How to prove genuineness of handwriting

(1) 

By any witness who believes it to be thehandwriting of such person because:(a)

 

he has seen the person write;(b)

 

he has seen writing purporting to be hisupon which the witness has acted or beencharged, and has thus acquired knowledgeof the handwriting of such person [Rule132, sec. 22]  

(2) 

A comparison by the witness or the court of thequestioned handwriting, and admitted genuinespecimens thereof or proved to be genuine tothe satisfaction of the judge [Rule 132, sec. 22]

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(3) 

Expert evidence [Rule 130, sec. 49]  

Public documents as evidence; proof ofofficial record

PUBLIC DOCUMENTS

Kinds of public documents(1)

 

Written official acts or records of the officialacts of the sovereign authority, official bodies

and tribunals, and public officers, whether ofthe Philippines or of a foreign country(2)  Public records, kept in the Philippines, of

private documents required by law to beentered therein

(3)  Notarial documents (except last wills andtestaments)

Proof of public documentsRecords of Official Acts [Rule 132, sec. 24]  (1)

 

By an official publication thereof; or(2)

 

By an attested copy of the document

Attestation of a copy [Rule 132, sec. 25]

Attestation of Copy [Rule 132, sec. 25]  (1)  Must be made by the officer having the legal

custody of the record, or by his deputy(2)  Must state that the copy is a correct copy of the

original or a specific part thereof, as the casemay be

(3) 

Must be under the official seal of the attestingofficer, if there be any, or if he be the clerk ofa court having a seal, under the seal of suchcourt

If the record is not kept in the Philippines, attestedcopy must be accompanied with a certificate, which(1)

 

May be made by a secretary of the

embassy/legation, consul-general, consul, vice-consul, consular agent or any officer in theforeign service of the Philippines stationed inthe foreign country in which the record is kept;

(2)  Must state that such officer has the custody; and(3)  Must be authenticated by the seal of his office.

Public record of a private documentPublic Records of Private Documents [Rule 132, sec.27]  (1)

 

By the original record; or(2)  By a copy thereof, attested by the legal

custodian of the record, with an appropriatecertificate that such officer has the custody.[Rule 132, sec. 27]  

Note: Please refer to ―Attestation of Copy‖ underthe immediately preceding subsection.

Proof of lack of record [Rule 132, sec.28]

(1) Written statement(a)  Signed by an officer having the custody of

an official record or by his deputy(b)  Must state that after diligent search, no

record or entry of a specified tenor is found

to exist in the records of his office(2) Certificate

(a)  Accompanying the written statement(b)  Must state that that such officer has the

custody

How a judicial record is impeached 

What to Establish to Impeach Judicial Record [Rule132, sec. 29]  (1)

 

Want of jurisdiction in  the court or judicialofficer;

(2) 

Collusion between the parties; OR(3)  Fraud in the party offering the record, with

respect to the proceedings

Proof of notarial documentsNotarial Documents (except last wills andtestaments) [Rule 132, sec. 30](1)

 

May be presented in evidence without furtherproof, the certificate of acknowledgment beingprima facie evidence of the execution of theinstrument or document involved.

(2)  Such notarized documents are evidence, even

against 3rd persons, of the facts which gave riseto their execution and of the date of execution.[Rule 132, sec. 23]  

How to explain alterations in a document

Alterations in a Document [Rule 132, sec. 31]  Requisites(1)

 

Document is being presented as genuine;(2)  Document has been altered and appears to have

been altered;(3)

 

Alteration was made after execution of thedocument; and

(4)  Alteration is in a part material to the question in

dispute

What to Show about the Alteration(1)

 

Was made by another, without his concurrence;(2)

 

Was made with the consent of the partiesaffected by it;

(3) 

Was otherwise properly or innocently made; or(4)

 

Did not change the meaning or language of theinstrument.

Whose Burden of ProofParty producing the document must account for thealteration. Failure to do so would result in theinadmissibility of evidence.

Documentary evidence in an unofficiallanguage [Rule 132, sec. 33]

NOT admissible unless accompanied by a translationinto English or Filipino.

Parties or their attorneys are directed to have thetranslation prepared before trial.

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V. TESTIMONIAL EVIDENCEA. Qualifications of a WitnessB. Competency versus Credibility of a

WitnessC. Disqualifications of Witnesses

D. Examination of a WitnessE. Admissions and ConfessionsF. Hearsay RuleG. Opinion RuleH. Character EvidenceI. Rule on Examination of a Child Witness

(A.M. No. 004-07-SC)

I. With respect to the witness

A.  Qualifications of a Witness [Rule 130, sec. 20]

All persons who can perceive, and, perceiving, can

make their known perception to others, may bewitnesses. 

Religious/political belief, interest in the outcome ofthe case, or conviction of a crime unless otherwiseprovided by law, shall not be ground fordisqualification.

B.  Competency versus Credibilityof a Witness

Competency CredibilityA matter of law and ofrules

Has nothing to do withthe law or rules

Refers to the basicqualifications of awitness as his capacityto perceive and hiscapacity to communicatehis perception to others

Refers to the weight andtrustworthiness orreliability of thetestimony

C.  Disqualifications of Witnesses

1. Disqualification by reason ofmental capacity or immaturity

By reason of mental incapacity [Rule 130, sec. 21a]   

Requisites (1)  Person must be incapable of intelligentlymaking known his perception to others 

(2)  His incapability must exist at the time of hisproduction for examination 

A mental retardate is not for this reason alonedisqualified from being a witness. Acceptance of histestimony depends on its nature and credibility or,otherwise put, the quality of his perceptions and themanner he can make them known to the court. [People v. Salomon (1993)]  

By reason of immaturity [Rule 130, sec. 21b]  

  Requisites (1)  Mental maturity of the witness (child) must

render him incapable of perceiving the factsrespecting which he is examined.

(2)  He is incapable of relating his perceptiontruthfully.

Incapacity must occur at the time the witnessperceives the event.

2.  Disqualification by reason ofmarriage

Also known as ―Marital Disqualification Rule‖ or―Spousal Immunity‖ 

Requisites(1)

 

Marriage is valid and existing as of the time ofthe offer of testimony. 

(2) 

Other spouse is a party to the action. 

Exceptions  [Rule 130, sec. 22] : Spouse MAY testifyfor or against the other even without the consent ofthe latter: 

(1) 

In a civil case by one against the other (2)

 

In a criminal case for a crime committed by oneagainst the other or the latter's directdescendants/ascendants. 

Rationale [Alvarez v. Ramirez (2005)]  (1)  There is identity of interests between husband

and wife; (2)

 

If one were to testify for or against the other,there is a consequent danger of perjury; 

(3) 

Policy of the law is to guard the security andconfidence of private life, and to preventdomestic disunion and unhappiness; and 

(4) 

Where there is want of domestic tranquility,there is danger of punishing one spouse through

the hostile testimony of the other. 

3.  Disqualification by reason of deathor insanity of adverse party

Also known as ―Dead Man‘s Statute‖ or ―SurvivorshipRule‖ 

Requisites [Rule 130, Sec. 23]  (1)

 

Defendant is the executor or administrator or arepresentative of the deceased or of the personof unsound mind; 

(2) 

Suit is upon a claim by the plaintiff against theestate of said deceased or person of unsound

mind; (3)  Witness is the plaintiff, or an assignor of that

party, or a person in whose behalf the case isprosecuted; and 

(4)  Subject of the testimony is as to any matter offact occurring before the death of suchdeceased person or before such person becameof unsound mind.

Exceptions(1)

 

The survivor may testify against the estate ofthe deceased where the latter was guilty offraud which fraud was established by evidence

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other than the testimony of the survivor. [OngChua v. Carr (1929)]  

(2)  He may also testify where he was the one suedby the decedent‘s estate since the action then isnot against the estate. [Tongco v. Vianzon(1927)]  

(3)  He may likewise testify where the estate hadfiled a counterclaim against him or where theestate cross-examined him as to mattersoccurring during the lifetime of the deceased.

[Goñi v. CA (1986)]  

Rationale:  To discourage perjury and protect theestate from fictitious claims

4.  Disqualification by reason ofprivileged communications

Husband and wife (Marital privilege) [Sec.24(a), Rule 130]  

Requisites(1)

 

There must be a valid marriage between thehusband and wife;

(2) 

There is a communication received inconfidence by one from the other; and

(3)  The confidential communication was receivedduring the marriage.

NOTE: A widow of a victim allegedly murdered maytestify as to her husband‘s dying declaration as tohow he died the since the same was not intended tobe confidential. [US v. Antipolo (1918)]  

Exceptions (1)

 

In a civil case by one against the other;(2)

 

In a criminal case for a crime committed by oneagainst the other or the latter's direct

descendants/ascendants.

Rationale: To promote marital harmony. 

In Contrast to Marital Disqualification

Marital Disqualification Marital PrivilegeOne spouse should be aparty to the case;

Neither of the spousesneeds to be a party;

Applies only if themarriage is existing atthe time the testimony isoffered; and 

Does not cease evenafter the marriage isdissolved; and 

Constitutes a totalprohibition on any

testimony for or againstthe spouse of thewitness.

Prohibition is limited totestimony on

confidentialcommunicationsbetween spouses.

Attorney and client [Sec. 24(b), Rule 130]  

Requisites(1)

 

There must be a communication made by theclient to the attorney or an advice given by theattorney to his client;

(2)  The communication must have been given inconfidence; and

(3) 

The communication or advice must have beengiven either in the course of the professionalemployment or with a view to professionalemployment.

NOTE: Attorney‘s secretary, stenographer, or clerkare also covered by the rule and cannot be examinedconcerning any fact the knowledge of which hasbeen acquired in such capacity without the consentof the client AND their employer.

General Rule: The attorney-client privilege may notbe invoked to refuse to divulge the identity of theclient. 

Exceptions [Regala v. Sandiganbayan (1996)]: (1)

 

When a strong probability exists that revealingthe name would implicate that person in thevery same activity for which he sought thelawyer‘s advice; 

(2)  When disclosure would open the client toliability;

(3)  When the name would furnish the only link thatwould form the chain of testimony necessary toconvict.

Physician and patient [Sec. 24(c), Rule 130]  

markRequisites(1)

 

Physician is authorized to practice medicine,surgery or obstetrics;

(2)  Information was acquired or the advice ortreatment was given by him in his professionalcapacity for the purpose of treating and curingthe patient;

(3)  Information, advice or treatment, if revealed,would blacken the reputation of the patient;and

(4) 

Privilege is invoked in a civil case, whether or

not the patient is a party thereto.

Privilege does not apply when the doctor ispresented as an expert witness and only hypotheticalproblems were presented to him. [Lim v. CA (1992)]  

Priest and penitent [Sec. 24(d), Rule 130]  

Requisites(1)  Confession was made to, or advice given by him

pursuant to a religious duty enjoined in thecourse of discipline of the sect or denominationof the priest.

(2)  Confession or advice was confidential andpenitential in character. 

Public officers [Sec. 24(e), Rule 130]  

Requisites(1)

 

Communication was made to the public officerin official confidence; and

(2)  Public interest would suffer by the disclosure ofsuch communication.

Elements of ―presidential communicationsprivilege‖

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(1) 

Must relate to a ―quintessential and non-delegable presidential power;‖ 

(2)  Must be authored or ―solicited and received‖ bya close advisor of the President or the Presidenthimself; and

(3)  Privilege may be overcome by a showing ofadequate need such that the information sought―likely contains important evidence‖ and by theunavailability of the information elsewhere.[Neri v. Senate (2008)]  

5.  Parental and filial privilege rule [Sec. 25, Rule 130] 

General Rule:  A person cannot be compelled totestify against his parents, other direct ascendants(parental privilege), children or other directdescendants (filial privilege). 

Exception [Art. 215, Family Code] : Descendant maybe compelled to give his testimony:(1)

 

In a criminal case; and(2)

 

When such testimony is indispensable in a crimecommitted against said descendant; or

(3) 

In a crime committed by one parent against theother.

D.  Examination of a Witness

Rights and obligations of a witness [Sec.3, Rule 132]

Obligation of a witness: To answer questions,although his answer may tend to establish a claimagainst him. 

Rights of a witness(1)  To be protected from irrelevant, improper, or

insulting questions, and from harsh or insulting

demeanor(2)

 

Not to be detained longer than the interests ofjustice require

(3) 

Not to be examined except only as to matterspertinent to the issue

(4) 

Not to give an answer which will tend to subjecthim to a penalty for an offense unless otherwiseprovided by law, e.g., Sec. 8, RA 1379 and otherimmunity statutes which grant the witnessimmunity from criminal prosecution for offensesadmitted

(5)  Not to give an answer which will tend todegrade his reputation, unless it to be the veryfact at issue or to a fact from which the fact in

issue would be presumed. But a witness mustanswer to the fact of his previous finalconviction for an offense.

Order in the examination of an individualwitness [Sec. 4, Rule 132](1) Direct examination(2) Cross examination(3) Re-direct examination(4) Re-cross examination

 

 

 

 

RE-CROSS EXAMINATION [Sec. 8, Rule 132]  

Who conducts: Opponent

When conducted: Upon the conclusion of the re-direct examination

What matters are covered: Those stated in hisre-direct examination, and also on such othermatters as may be allowed by the court in its

discretion.

RE-DIRECT EXAMINATION [Sec. 7, Rule 132]  

Who conducts: Proponent

When conducted: After cross-examination of thewitness

Why conducted: To explain or supplement hisanswers given during the cross-examination

What matters are covered: Those stated in thecross-examination, and matters not dealt with, if

allowed by the Court 

CROSS EXAMINATION [sec. 6, Rule 132]

Who conducts: Opponent

When conducted:  Upon the termination of thedirect examination

Why conducted: To test the witness‘s accuracyand truthfulness, and freedom from interest orbias, or the reverse, and to elicit all importantfacts bearing upon the issue

What matters are covered: Any matters stated inthe direct examination or connected therewith

DIRECT EXAMINATION [Sec. 5, Rule 132]

Who conducts: Proponent

Why conducted: Examination-in-chief of awitness by the party presenting him, on the factsrelevant to the issue. 

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Leading and misleading questions [Sec.10, Rule 132]

Questions not allowed(1)  Misleading Questions [sec. 10, Rule 132]  

  Questions that assume as true a fact not yettestified to by the witness, or contrary to thatwhich he has previously stated.

  NEVER allowed

(2) 

Leading Questions

  Questions that suggest to the witness theanswer, which the examining party desires.

General Rule: Leading questions are not allowed.

Exceptions:(1)

 

On cross examination;(2)  On preliminary matters;(3)  When there is a difficulty is getting direct and

intelligible answers from a witness who isignorant, or a child of tender years, or is offeeble mind, or a deaf-mute;

(4) 

On an unwilling or hostile witness;

A witness may be considered hostile only whendeclared by the court, upon adequate showingof his: [sec. 12, Rule 132](a)

 

Adverse interest;(b)

 

Unjustified reluctance to testify;(c)

 

His having misled the party into calling himto the witness stand.

(5)  On a witness who is an adverse party or anofficer/director or managing agent of apublic/private corporation or of a

partnership/association which is an adverseparty.

Methods of impeachment of adverseparty’s witness [sec. 11, Rule 132]

(1)  By contradictory evidence;(2)  By evidence that his general reputation for

truth, honesty or integrity is bad;(3)  By evidence that he has made at other times

statements inconsistent with his presenttestimony.

How the witness is impeached byevidence of inconsistent statements(laying the predicate)

Elements:(1)

 

The alleged statements must be related to thewitness including the circumstances of the timesand places and the persons present. If the

statements are in writing they must be shown tohim.

(2)  Witness may be asked whether he made suchstatements and also to explain them if headmits making those statements.

Purpose: To allow the witness to admit or deny theprior statement and afford him an opportunity toexplain the same.

Evidence of the good character of awitness [Sec. 14, Rule 132]

Evidence of the witness‘ good character is not

admissible until such character has been impeached.

II. With respect to the testimony

E.  Admissions and Confessions

1.  Admissions of a Party

By Act, Declaration or Omission

Requisites for Admissibility(1)  Made by a party;(2)  Outside of court;(3)

 

Relates to a relevant fact; and

(4) 

Is against admitter‘s interest.  [sec. 26, Rule130]  

Effect(1)

 

May be given in evidence against the admitter[sec. 26, Rule 130]  

(2)  Flight from justice is an admission by conductand circumstantial evidence of consciousness ofguilt. [US v. Sarikala (1918)]  

RationaleNo man would make any declaration against himselfunless it is true. [Republic v. Bautista (2007)]  

As Distinguished from Judicial Admissions

Judicial ExtrajudicialMade in connection witha judicial proceeding inwhich it is offered

Any other admission

Rule 129, sec. 4 Rule 130, secs. 26 and 32

By Silence

Requisites for Admissibility:(1)  An act or declaration is made in the presence

and within the hearing or observation of a party;

RECALLING THE WITNESS [Sec. 9, Rule 132]  

Who conducts: either party

When conducted: After both sides haveconcluded the examination of a witness, andwith leave of court

Why conducted:(1)

 

Particularly identified material points werenot covered in cross-examination

(2) 

Particularly described vital documents werenot presented to the witness

(3) 

Cross-examination was conducted in so inepta manner as to result in a virtual absence

thereof [People vs. Rivera (1991)]  

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(2) 

Party does or says nothing;(3)  Act or declaration is such as naturally to call for

action or comment if not true; and(4)  It was proper and possible for the party to do

so. [sec. 32, Rule 130]  

Silence of a person under investigation for thecommission of an offense should not be construed asan admission by silence for constitutional reasons.[Sec. 2(b), R.A. 7438]  

2.  Confessions

A declaration of an accused acknowledging his guiltof the offense charged, or of any offense necessarilyincluded therein [sec. 33, Rule 130]  

If the accused admits having committed the act inquestion but alleges a justification therefore, thesame is merely an admission. [US v. Tolosa]  

Any confession, including a re-enactment, withoutadmonition of the right to silence and to counsel,and without counsel chosen by the accused is

inadmissible in evidence. [People v. Yip Wai Ming(1996)]  

General Rule: An extra-judicial confession made byan accused is not a sufficient ground for conviction.  [sec. 3, Rule 133]  

Exception: When corroborated by evidence of theactual commission of a particular crime (corpusdelicti). [sec. 3, Rule 133]  

As Distinguished from Admissions of a Party

Admission Confession

Merely a statement offact

Acknowledgment of guiltor liability

Maybe express or tacit Must be express

Maybe made by 3rdparties, and in certaincases, admissible againsta party

Can be made only by theparty himself, andadmissible against hisco-accused in someinstances

3.  Res inter alios acta rule

With Respect to Admissions by a ―Third-Party‖ 

General Rule: INADMISSIBLEThe rights of a party cannot be prejudiced by an act,declaration or omission of another. (1st Branch) [sec.28, Rule 130]  

Exceptions: (1)

 

Partner‘s or Agent‘s Admission [sec. 29, Rule130]  

Requisites:(a)  Act or declaration must be within the scope

of the authority of the partner or agent;

(b) 

Act or declaration must have been madeduring the existence of the partnership oragency; and

(c)  Partnership or agency must be shown byevidence other than the act or declaration.

(2)  Co-Conspirator‘s Admission [sec. 30, Rule 130]  

Requisites(a)

 

Act or declaration must relate to the

conspiracy;(b)

 

It must have been made during theexistence of the conspiracy; and

(c) 

Conspiracy must be shown by evidenceother than such act/declaration.

Existence of the conspiracy may be inferredfrom the acts of the accused. [People v. Belen(1963)]  

Rule 130, sec. 30 applies only to extra-judicialstatements, not to testimony given on thestand. [People v. Serrano (1959)]  

(3)  Admission by Privies [sec. 31, Rule 130]  

Requisites:(a)

 

There must be an act, declaration or anomission by a predecessor-in-interest;

(b) 

Act, declaration or omission must haveoccurred while he was holding (not after)the title to the property; and

(c) 

Act, declaration or omission must be inrelation to the property.

With Respect to Similar Acts 

General Rule: Evidence that one did or did not do acertain thing at one time is NOT ADMISSIBLE to provethat he did or did not do the same or similar thing atanother time. (2nd Branch) [sec. 34, Rule 130]  

Exceptions:  Said evidence may be received toprove:(1)

 

specific intent or knowledge;(2)  identity;(3)  plan, system, or scheme;(4)  habit;(5)  custom, usage and the like.

Admission by a party

Please see discussion in previous section (previous page)

Admission by a third partyAdmission by a co-partner or agentAdmission by a conspiratorAdmission by privies

Please see discussion under the subsection ‘Res inter

alios acta rule’ 

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Admission by silence

Please see discussion in previous section (previous page)

Confessions

Please see discussion in previous section (previous page)

Similar acts as evidence

Please see discussion under the subsection ‘Res inter

alios acta rule’ 

F.  Hearsay Rule

Meaning of hearsay

(1)  Out-of-court statement (2)  Offered by the witness in court to prove the

truth of the matters asserted by the statement 

Any evidence, whether oral or documentary, if itsprobative value is not based on personal knowledgeof witness but on knowledge of some other personnot on witness stand [Regalado 11th ed.]  

Doctrine of Independently Relevant StatementsStatements or writings attributed to a person not onthe witness stand, which are being offered not toprove the truth of the facts stated therein, but onlyto prove that such were actually made.

These are NOT covered by the hearsay rule [Peoplev. Cusi (1965)]  

Reason for exclusion of hearsay evidence

Lack of opportunity to cross-examine the outsidedeclarant

GENERAL RULE ON HEARSAYA witness can testify only as to those facts which heknows of his personal knowledge, or those derivedfrom his own perception. [Rule 130, sec. 36]

The hearsay rule is not limited to oral testimony orstatements; it applies to written, as well as oralstatements. [Consunji vs. CA (2001)]

If a party does not object to hearsay evidence, thesame is admissible, as a party can waive his right to

cross-examine [People vs Ola (1987)]

Repeated failure to cross-examine is an impliedwaiver [Savory Luncheonette vs Lakas ngManggagawang Pilipino (1975)]  

Exceptions to the hearsay rule (Asked7x)

1) Dying declaration

Also known as ―antemortem statement‖ or―statement in articulo mortis‖ [Sec. 37, Rule 130]  

Requisites for Admissibility (1)  Declaration is one made by a dying person;(2)  Declaration was made under the consciousness

of an impending death;(3)  Declaration refers to cause and surrounding

circumstances of such death;(4)  Declaration is offered in any case wherein his

death is the subject of inquiry;(5)

 

Declarant is competent as a witness had he

survived [Geraldo v People (2008)] ; and(6)

 

Declarant should have died.  [People v.Macandog (2001)]  

Rationale for Admissibility: As a general rule, whena person is at the point of death, every motive tofalsehood is silenced. [People v Bacunawa (2001)]  

The foreboding may be gleaned from surroundingcircumstances, such as the nature of the declarant‘sinjury and conduct that would justify a conclusionthat there was consciousness of impending death.[People v. Latayada (2004)]  

2) Declaration against interest

Requisites for Admissibility(1)

 

Declarant is dead or unable to testify;(2)

 

Declaration relates to a fact against the interestof the declarant;

(3) 

At the time he made said declaration, declarantwas aware that the same was contrary to hisinterest; and

(4)  Declarant had no motive to falsify and believedsuch declaration to be true [sec. 38, Rule 130;Ong v. Court of Appeals (1980)]

Inability to testify means that the person is dead,mentally incapacitated or physically incompetent.

Mere absence from the jurisdiction does not makehim ipso facto unavailable. [Fuentes v. CA (1996)]  

As Distinguished from Admissions

AdmissionDeclaration against

InterestAdmitter is a partyhimself, or in privitywith such party;

Declarant is neither aparty nor in privity witha party;

Admissible whether ornot admitter is availableas a witness

Admissible only whendeclarant is unavailableas a witness;

Can be made any time,

even during trial;

Must have been made

ante litem motam;Admissible only againstthe admitter; and

Admissible even against3rd persons; and

Admissible NOT as anexception to any rule

Admissible as anexception to the hearsayrule

3) Act or declaration about pedigree

Requisites for Admissibility (1)

 

Declarant is dead or unable to testify;(2)

 

Declarant must be related by birth or marriageto the person whose pedigree is in issue;

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(2) 

Entrant must have personal knowledge of thefacts stated by him or such facts acquired byhim from reports made by persons under a legalduty to submit the same [Salmon, Dexter & Co.v. Wijangco (1924)] ; and

(3)  Entries were duly entered in a regular manner inthe official records.

Entries in official records, just like entries in thecourse of business, are merely  prima facie evidence

of the facts therein stated. [secs. 43-44, Rule 130]  

Entries in a police blotter are not conclusive proof ofthe truth of such entries. [People v. Cabuang (1993)]  

Baptismal certificates or parochial records ofbaptism are not official records.  [Fortus v. Novero(1968)]  

9) Commercial lists and the like

Requisites for Admissibility [Sec. 45, Rule 130]  (1)  Such statements are contained in a list;(2)  Compilation is published for use by persons

engaged in that occupation; and(3) 

It is generally used and relied upon by them.

10) Learned treaties

Requisites for Admissibility [Sec. 46, Rule 130]  (1)  Published treatise, periodical or pamphlet is on

a subject of history, law, science, or art; and(2)  Court takes judicial notice of it, or(3)  Witness expert in the subject testifies that the

writer of the statement in the treatise,periodical or pamphlet is recognized in hisprofession or calling as expert in the subject

11) Testimony or deposition at a former trial

Requisites for Admissibility  [sec. 47, Rule 130;Manliclic v. Calaunan (2007)]  (1)

 

Witness is dead or unable to testify;(2)

 

His testimony or deposition was given in aformer case or proceeding, judicial oradministrative, between the same parties orthose representing the same interests;

(3)  Former case involved the same subject as thatin the present case although on different causesof action;

(4) 

Issue testified to by the witness in the formertrial is the same issue involved in the presentcase; and

(5) 

Adverse party had the opportunity to cross-examine the witness in the former case.

G. Opinion Rule

GENERAL RULE: The opinion of a witness is notadmissible. [Sec. 48, Rule 130]  

EXCEPTIONS [NOTE: Please refer to succeedingsubsections for discussion]  (1)

 

Expert witness(2)

 

Ordinary witness

Opinion of expert witness [sec. 49, Rule130]  

On a matter(1)

 

Requiring(a)

 

special knowledge,(b)  skill,(c)  experience, or

(d) 

training(2)  Which he is shown to possess

Expert witness is one who belongs to the professionor calling which the subject matter of the inquiryrelates and who possesses special knowledge.

Opinion of ordinary witness [sec. 50, Rule130]  

(1)  If proper basis is given, and(2)  Regarding:

(a)  Identity of a person about whom he hasadequate knowledge;

(b) 

Handwriting with which he has sufficientfamiliarity;(c)

 

Mental sanity of a person with whom he issufficiently acquainted; and

(d) 

Impressions of the(i)

 

emotion,(ii)

 

behavior,(iii) condition, or(iv)  appearance of a person.

H. Character Evidence

GENERAL RULE [sec. 51, Rule 130] : Characterevidence is not admissible. 

EXCEPTIONS(1)

 

Criminal cases [sec. 51(a), Rule 130]  (a)

 

Accused –  May prove his good moralcharacter, which is pertinent to the moraltrait involved in the offense charged.

(b)  Prosecution – May not prove the bad moralcharacter of the accused, except inrebuttal.

(c)  Offended Party – His/her good or bad moralcharacter may be proved if it tends toestablish in any reasonable degree theim/probability of the offense charged.

(2)  Civil cases 

(a) 

Moral character is admissible only whenpertinent to the issue of character involvedin the case. [sec. 51(b), Rule 130]  

(b) 

Evidence of the witness‘ good character isnot admissible until such character hasbeen impeached. [sec. 14, Rule 130]  

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I.  Rule on Examination of a ChildWitness (A.M. No. 004-07-SC)

Applicability of the rule

(1)  Shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses.[Sec. 1]

(2)  The ROC provisions on deposition, conditional

examination of witnesses and evidence shall beapplied suppletorily. [Sec. 32]  

Meaning of ―child witness‖ 

(1)  Any person who at the time of giving testimonyis < 18 years;

(2)  In child abuse cases, a child includes one over18 years but is found by the court as(a)  unable to fully take care of himself, or(b)  protect himself from abuse, neglect,

cruelty, exploitation, or discrimination(c)  because of a physical or mental disability or

condition.;

Competency of a child witness

Every child is presumed qualified to be a witness. Torebut the presumption of competence enjoyed by achild, the burden of proof lies on the partychallenging his competence. [Sec. 6(b)]  

Requisites  of competency of a child as witness[People v. Mendoza (1996)] :(1)

 

Capacity of observation;(2)

 

Capacity of recollection;(3)

 

Capacity of communication.

When the court finds that substantial doubt exists

regarding the ability of the child toperceive/remember/ communicate, distinguish truthfrom falsehood, or appreciate the duty to tell thetruth in court, a competency exam shall beconducted.

The age of the child by itself is not a sufficient basisfor a competency examination. [Sec. 6(a)]  

The court has the duty of continuously assessing thecompetence of the child throughout his testimony.[Sec. 6(f)]  

Examination of a child witness

(1) 

In open court [Sec. 11]  (2)

 

Alternative Modes(a)

 

Live-Link TV Testimony, in Criminal Caseswhere Child is a Victim or a Witness [Sec.25]  (i)  If there is a substantial likelihood that

the child would suffer trauma fromtestifying in the presence of theaccused, his counsel or the prosecutor.

(ii) 

Trauma must be of a kind which wouldimpair the completeness or truthfulnessof the child‘s testimony. 

(b) 

Videotaped Deposition of a Child Witness[Sec. 27]  (i)  If the court finds that the child will not

be able to testify in open court at trial,it shall issue an order that thedeposition of the child be taken andpreserved by videotape.

(ii)  The rights of the accused during trial,especially the right to counsel and toconfront and cross-examine the child,

shall not be violated during thedeposition.

Live-link TV testimony of a child witness[Sec. 25]

Live-link television testimony, in criminal caseswhere the child is a victim or a witnessThe court may order that the testimony of the childbe taken by live-link television if there is asubstantial likelihood that the child would suffertrauma from testifying in the presence of theaccused, his counsel or the prosecutor.

The trauma must be of a kind which would impairthe completeness/truthfulness of the child‘stestimony.

If it is necessary for the child to identify the accusedat trial, the court may allow the child to enter thecourtroom for the limited purpose of identifying theaccused, or the court may allow the child to identifythe accused by observing the image of the latter ona television monitor.

Videotaped deposition of a child witness[Sec. 27]If the court finds that the child will not be able to

testify in open court at trial, it shall issue an orderthat the deposition of the child be taken andpreserved by videotape.

The rights of the accused during trial, especially theright to counsel and to confront and cross-examinethe child, shall not be violated during thedeposition.

Hearsay exception in child abuse cases[Sec. 28]Proponent of hearsay statement shall make known tothe adverse party the intention to offer suchstatement and its particulars.

If the child is available, court shall require the childto be present at the presentation of the hearsaystatement for cross-examination by the adverseparty.

If unavailable, the fact of unavailability must beproved by the proponent and his hearsay testimonymust be corroborated by other admissible evidence.

Sexual abuse shield ruleGeneral Rule [Sec. 30(a)]:  The following areINADMISSIBLE in any criminal proceeding involving

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alleged child sexual abuse:(1)  Evidence offered to prove that the alleged

victim engaged in other sexual behavior;(2)  Evidence offered to prove the sexual

predisposition of the alleged victim.

Exception [Sec. 30(b)]:  Evidence of specificinstances of sexual behavior by the alleged victim toprove that a person other than the accused was thesource of semen, injury or other physical evidence

Protective ordersVideo/audio tapes that are part of the court recordmay be viewed only by parties, their counsel, theirexpert witness and the guardian ad litem.  [Sec.31(b)]  

The court may issue additional orders to protect thechild‘s privacy. [Sec. 31(c)]  

Publication (or causing it) in any format anyidentifying information of a child who is or is allegedto be a victim/accused of a crime or a witnessthereof, or an immediate family of the child, shall

be liable for contempt of court. [Sec. 31(d)]  

A child has a right at any court proceeding not totestify regarding personal identifying informationthat could endanger his physical safety or his family.[Sec. 31(e)]  

VI. OFFER AND OBJECTIONA. Offer of EvidenceB. When to Make an OfferC. ObjectionD. Repetition of an Objection

E. RulingF. Striking Out of an AnswerG. Tender of Excluded Evidence

A.  Offer of Evidence

Concept [Sec. 34, Rule 132]  (1)  Court shall consider no evidence which has not

been formally offered(2)  Purpose for which the evidence is offered must

be specified(3)  As Distinguished from Identification of

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