Evidence
Evidence
Evidence
Examples: a). the witness scheduled to leave abroad with no possibility of returning
b). the witness is so sick and might die
2. Depositions perpetuam rei memoriam: one taken in anticipation of a case not yet
filed in court
2. If the witness is no longer available for personal testimony during the trial, the
testimony as, recorded becomes his testimony in court.
PERPETUATION OF TESTIMONY
I. INTRODUCTION
Weight of Evidence: - The balance of evidence and in whose favor it tilts. This refers
to the indication of the greater evidence between the parties . This depends on the
judicial evaluation within the guidelines provided by the rules and by jurisprudence.
Sufficiency of Evidence- refers to the adequacy of evidence. Such evidence in
character, weight, or amount, as will legally justify the judicial action demanded or
prayed by the parties.
This refers to the question as to whether the evidence amounts or meets the
required quantum needed to arrive at a decision in a civil, criminal, or
administrative case; or to prove matters of defense or mitigation or to overcome a
prima facie case or a presumption
1. That degree of proof, which, excluding the possibility of error, produces moral
certainty. If the inculpatory facts are capable of two or more explanations, one of
which is consistent with the innocence of the accused and the other consistent with
his guilt, then the evidence does not fulfill the test of moral certainty and is not
sufficient to support a conviction.
B. Civil Cases: Preponderance of Evidence. This means that he weight, credit and
value of the aggregate evidenced of one is superior to the other
.
IV. RULES IN THE EVALUATION OF EVIDENCE
1. Courts shall consider and take into consideration : (a) all facts which were
presented during the trial whether testimonial, object, or documentary (b) all facts
which were stipulated or judicially admitted (c) those judicially noticed and (d) all
facts which are presumed
3. In determining the weight and sufficiency of a partys evidence, the court shall
consider :
i). The manner of testifying by a witness which includes his conduct and behavior
on the witness stand, the emphasis, gestures, and inflection of his voice in
answering questions. This is the reason why the rules require the witness to
personally testify in open court.
ii). The intelligence of the witness. This refers o this position to perceive by the sue
of his organs of sense, his opportunity for accurate observation and faithful
recollection of the facts to which he is testifying.
This intelligence must be coupled with integrity, a general reputation for truth,
honesty and integrity. This is because a witness to be believed must be truthful in
his narration of correct facts.
iii). The means and opportunity of knowing the facts which includes his presence
and observation of the facts.
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iv). The nature of the facts to which the witness is testifying such as: whether he did
the act as a participant, whether he saw the occurrence of an accident as he was a
passenger; the identity of a person who is an old acquaintance; thus as to the
circumstances of the birth a person, the mother would be the best witness on this
point mother.
v). The absence or presence of interest or basis for bias or prejudice.
vi). Personal Credibility of the witness, referring to his general reputation for truth,
honesty or integrity as for example: (i) the case of an young girl who makes a
complaint for rape ; as for instance the accused claiming self defense who is well
built, broad shouldered a boxer and expert in martial arts claiming the victim of
assault by an ordinary person
viii). The probability or improbability of the testimony
C. The number of witnesses. However witnesses are to been weighed not numbered
because quantitative superiority does not necessarily mean legal preponderance.
Thus an accused may be convicted based solely on the testimony of one witness.
But where the evidence for both parties is principally testimonial where the
version of each exhibit equal tendency to be true and accurate, and the witnesses
have not betrayed themselves by major contradictions or other indications of
falsehood, there exists every reason to measure preponderance by numerical
advantage.
.
4. The Court has the power to stop the further presentation of evidence on the same
point as when the additional evidence is only corroborative or the point has already
been established, or when it results to unnecessary delay
A). the court must consider everything stated by the witness during the direct,
cross, re-direct and re-cross examinations
B). the testimony of a witness maybe believed in part and disbelieved in other
parts, depending on the corroborative evidence and the probabilities and
improbabilities of the case. It is accepted as a matter of common sense that if
certain parts of the testimony are true, his testimony can not be disregarded
entirely.
Contrast this with the so called Falsus in unos, falsus in omnibus
A). Physical or Object evidence is evidence of the highest order and prevails over
contrary testimonial evidence
C). Positive over negative evidence. E.G. positive identification over alibi; an
assertion of the occurrence of a thing over a plain denial. Denials, if
unsubstantiated by clear and convincing evidence, are deemed negative and selfserving evidence unworthy of credence. ( Wa-acon vs. People, 510 SCRA 429)
F). The Admitted Facts Rule- evidence of whatever description must yield to the
extent that it conflicts with admitted or clearly established facts. Thus courts give
superior credit to witnesses whose testimonies on material points are in accord with
facts already established ( Frondarina vs. Malazarte 510 SCRA 223)
A. For conviction
i). For conviction: the prosecution must adduce proof of guilt beyond reasonable
doubt i.e. moral certainty not absolute certainty
ii). Every doubt is to be resolved in favor of the accused
iii) Accusation is not synonymous with guilt
iv Accused need not present evidence if the evidence against him is weak because
conviction must be on the strength of the evidence of the prosecution and not on
the weakness of the evidence of the accused
A.) That it be credible in itself i.e. such as the common experience and observation
of mankind can approve as probable under the circumstances. Testimony must be
natural, reasonable and probable as to make it easy to believe
B). Must come from a credible source- a credible witness is one who testifies in a
categorical, straightforward spontaneous and frank manner and remains consistent
on cross examination
VI. EVIDENCE ON MOTION When a motion is based on facts not appearing of record
the court may hear the matter on affidavits or depositions presented by the
respective parties, but the court may direct that the matter be wholly or partially on
oral testimony or depositions.
A.
record
Taking
of writ
PRESENTATION OF EVIDENCE
I. INTRODUCTION.
a). A case is won or lost depending upon how effective was the presentation of
evidence, particularly as to what evidence were presented and how they were
presented
b). Parties should be allowed a certain latitude in the presentation of their evidence
otherwise they might be so hampered that the ends of justice may eventually be
defeated or appear to be defeated. The court should not limit the evidence to be
presented.
c). The parties should be allowed to maintain their own way or style of presenting
evidence when these can be done without injury to the speedy disposition of the
case and to the best interest of the administration of justice
d) The court should liberally receive all evidence offered in the trial to be able to
render its decision with all the possibly relevant proof in the record and to assure
the appellate court to have a good judgment and to obviate remanding the case for
re-trial or reception of evidence
a). The witness must appear in person so that the court and the opponent may
observe him and hear his testimony
b). His personal presence cannot be substituted by the submission of written
statements or audio testimony
c) There is also no secret testimony and it must always be in the presence of the
adverse party, except when the presentation is allowed to be ex parte, or testimony
through interrogatories or depositions in advance of trial before a hearing officer but
upon prior approval of the court and with proper notice to the adverse party
d). CHILD WITNESSES: the witness may testify inside a room but the child must be
visible and can be heard through the medium of facilities appropriate for the
purpose such as a mirror
QUESTION: May the witness testify wearing masks to preserve his identity?
a). To answer questions as may be asked by the proponent, the opponent and by
the court
(i). Oath: an outward pledge by the witness that his testimony is made under an
immediate sense of responsibility to a Supreme Being. An appeal is made to the
almighty that he will tell the truth.
(ii.) Affirmation: a solemn and formal declaration that the witness will be truthful
iii). The purpose of an oath or affirmation are : (i) to affect the conscience of the
witness and compel him to speak the truth and (ii) to lay him open to punishment
for perjury. But it is not essential that he knows what or how he will punished.
iv). If the opponent believes the witness is not aware of his obligation and
responsibility to tell the truth and consequences of telling a lie, the party may ask
for leave to conduct a VOIRE DIRE examination ( PP. vs. Alma Bisda, July 17, 2003)
v). Effect of lack of oath: If the opponent fails to object then the testimony may be
given weight as the party would be estopped or, the party may move to disallow the
witness from testifying, or move to strike the testimony after he found the lack of
oath. The proponent however may ask that the witness be placed under oath. . .
Courts of the Philippines are courts of record. Anything not recorded is deemed not
to have transpired or taken-up and will not be considered in the resolution of the
case. The matter to be recorded include:
a). Questions by the proponent, opponent and the court, which are propounded to
the witness
b). The answers of the witness to the questions
c). Manifestations, arguments, and statements of counsel
d). Statements of the court to the counsel
e). Instructions or statements of the court to the court personnel
f). Demonstrable actions, movements, gestures or observations asked to be
described and recorded
g). Observations during the conduct of ocular inspections
The obligation of a witness is to answers all questions which are asked of him. He
cannot choose which questions to answer and to answering others.
The witness however has the right to be protected against tactics from the
opponent which are intended to brow beat, badger, insult, intimidate, or harass
him.
He has the right not to be detained longer that is necessary.
He may refuse to answer the following questions:
a). Those which are not pertinent to the issue
EXAMINATION OF A WITNESS
1. Examination to find out facts from the witness or to test his memory,
truthfulness or credibility by directing him to answer appropriate questions.
2. Proponent - the party who owns or who called the witness to testify in his favor.
Opponent- the party against whom the witness was called.
3. Friendly Witness- one who is expected to give testimony favorable to the party
who called for him. Hostile Witness, one whose testimony is not favorable to the
cause of the party who called him as a witness. Party witness and accused-witness
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refer to the plaintiff, defendant or the accused, testifying as witness for themselves,
as opposed to ordinary witnesses
B. ORDER OF EXAMINATION
A. Procedural Requirement
Offer of Testimony- the proponent shall state the substance of the intended
testimony of the witness ( an outline of the major points) and the purpose of said
testimony ( what the proponent intends to prove by said testimony)
a). Importance of the Offer- (i) The direct examination may be objected to by the
opponent (ii) Matters not included in the offer may not be allowed to be testified on
upon proper objection and (iii) to shorten the proceedings as the opponent may
admit or stipulate on the matters to be testified on.
In cases under the Rules on Summary Procedure, the sworn statement of the
witness must have been submitted to the court before hand
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This is the only opportunity for the proponent to elicit from the witness all the facts
which are important and favorable to him. The witness should be considered as a
sponge heavy with facts. By the time the direct examination is over, all favorable
facts should have been squeezed from the witness. The examination must be clear,
forceful, comprehensive, and must efficiently present the facts of the case.
a). KEEP IT SIMPLE. Avoid these two pitfalls (i) too little time on critical points and (ii)
too much time on unimportant points
b). ORGANIZE LOGICALLY. Determine the key points and organize them in a logical
order. If possible resort to a chronological presentation of testimony.
f). ELICIT GENERAL FLOWING DESCRIPTION. Let the witness paint a picture. Avoid
excessive detail.
g). USE PACE IN DESCRIBING ACTION. Control the speed of the examination by
eliciting testimony in small segments at the most advantageous rate. SLOW DOWN
THE ACTION.
h). USE SIMPLE LANGUAGE. Choose simple words and phrases. Word choice affects
answers. Avoid jargons, idioms and technical words. WHAT MATTERS AND WHAT
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A. Concept: The examination of the witness by the opponent after the direct
examination.
B. Nature:
1. An essential part of the right to procedural due process i.e. the right of a party to
confront witnesses against him face-to-face. The essence however is not actual
cross examination but that a party be given the opportunity to cross examine.
Hence the consequences are as follows:
a). If the opponent was never given the opportunity to cross examine a witness, the
direct testimony may, on motion of the opponent, be stricken off as hearsay.
b). All assertions of facts not based on the personal knowledge of the witness may
also be stricken off as hearsay since the source cannot be subjected to the
opportunity of cross-examination
2. :Limitations:
c). After a witness has been cross-examined and discharged, further crossexamination is no longer a right but must be addressed to the sound discretion of
the court
d). The Court may limit the cross-examination if its needlessly protracted, or is
being conducted in a manner which is unfair to the witness or is inconsistent with
the decorum of the court, as when it degenerates into a shouting match with the
witness
a). If the loss, in whole or in part, was due to the fault of the adverse party, the
testimony of the witness is to be taken into consideration
b). If the cross-examination cannot be done or completed due to causes attributable
to the party offering the witness, the testimony is rendered incompetent
c). If the loss or non-completion was due to the death or unavailability of the
witness then that part of the testimony which was subjected to cross-examination
remains admissible.
It requires the ability to think quickly, read quickly and to know when to quit. The
lawyers antennae must ever be tuned in to the witness: his character, personality;
mannerism, and all traits which will give a favorable clue; to the adverse counsel
and to the Court.
b). Should a party cross examine or not depends on a full understanding of what to
expect. The following must be considered before a party attempts to cross-examine:
i). Whether the witness has hurt the case or the impact of his testimony on the case
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ii). Whether the witness is important, as for example an eye witness, or a party
witness
iii). Whether the testimony is credible
iv). The risks that the party undertakes
1. Under section 6 the witness may be examined: (a) As to any matter stated in the
direct examination (b) or any matter connected therewith (c) as to the accuracy and
truthfulness and freedom of the witness from interest or bias, or the reverse and (d)
upon all important facts bearing upon the issue.
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2. The English Rule is followed in the Philippines: the cross examination is not
confined to matters subject of the direct examination but extends to other maters,
even if not inquired in the direct examination but are material to the issues. This is
distinguished from the American Rule which holds that the scope of the crossexamination is confined to the facts and circumstances brought out, or connected
with, matters stated in the direct examination
1. The Court may ask questions : 1. To clarify itself on certain points 2. To call the
attention of counsel to points at issue that are overlooked and 3.To direct counsel to
questions on matters to elicit facts and clarify ambiguous answers
2. However, the questioning by the court should not be confrontational, probing and
insinuating. It should not be partisan and not over extensive. The court is not to
assume the role of an advocate or prosecutor.
1. PREPARE. Know what the witness has testified on and its relation to the case and
how it affects your own evidence
2. KNOW YOUR OBJECTIVE. What are the points in the testimony of the witness
which are critical and are these points to be brought out and emphasized
3. OBSERVE PACING AND PATIENCE . Do not rush the witness and avoid being over
eager in bringing out an important point.
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4. LEAD THE WITNESS. State the facts and let the witness ratify. Know how to lead.
Use variation in the phraseology of the questions.
5. HAVE A STYLE AND ADAPT IT TO THE OCCASION. Be true to yourself and develop
an approach or style suited to your personality and character. Be able to vary your
style and know when is it effective to use either a booming or soft voice; to move
around or to stay put; to be conversational or confrontational or tough and
confident..
6. KNOW WHEN TO QUIT. Stop when (1) the witness has been discredited or made a
monumental concession. There is no need for an over kill. or when the witness is
killing the case or the counsel.
8. KNOW THE JUDGE. Are you making an impact or are you boring, antagonizing or
confusing the Judge?
2. SHORT QUESTIONS. Use plain words and avoid fancy words or elaborate syntax.
3. NEVER ASK A QUESTION to which you do not already know the answer.
To afford the party calling the witness to explain or amplify the testimony given on
cross-examination; to explain apparent contradictions, or inconsistencies, and to
rehabilitate the testimony.
The scope is confined to matters taken up in the cross-examination, not those
outside, which may be objected to on the ground that it is improper for redirect.
But, new matter may be inquired into provide the prior approval of the court was
obtained and the testimony on the new matter must be subject to crossexamination by the opponent.
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A. On Motion By a party: This is not a right but the recall must be addressed to the
discretion of the court and the recall must be on justifiable grounds.
B. By the Court: If there be matter it wishes to clarify
1. Witnesses are to give data spontaneously from their own memory, according to
their own perception and interpretation. The role of the lawyer is simply to ask
questions which will help the witness recall events. The question should be framed
in such a manner that the lawyer does not in any way suggest or influence the
answer to be given, otherwise the fact or answer becomes merely the product of
the suggestion, and not what the witness personally knows.
2. If the witness is asked simply to confirm or deny, then in effect it is the lawyer
who is supplying the facts through the mouth of the witness who is reduced to being
merely the echo and mouthpiece of the lawyer.
3. Test : The form or phraseology and the contents of the question in that whether it
contains a statement of a fact which the witness is asked to affirm or agree to. In
such case the witness contributes no substantial data. The lawyer is coaxing.
The tone, inflection, mannerism or body language of counsel, may also
indicate if the counsel is leading his witness.
C. General Rule On Direct: The witness being a friendly witness and having been
called by the proponent, he is naturally expected to be sympathetic to the cause of
the proponent. Thus there is great danger that he would just confirm any and all
facts suggested to him by the proponent. Hence leading questions are not allowed.
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The following instances are the exceptions when leading questions are allowed to
be asked during direct:
On preliminary matters
a. those pertaining to the personal circumstances of the witness and which are
asked at the start of the cross-examination
b. those which are intended to bring the witness directly to the point in issue; they
are referred to as orienting, introductory or transitory questions
When there is difficulty in getting direct and intelligible answers from the witness
who by reason of the any of the following: is immature; aged and infirm; in bad
physical condition; ignorant of, or unaccustomed to, court proceedings;
inexperienced; unsophisticated; feebleminded; confused and agitated; terrified;
timid or embarrassed while on the stand; lacking in comprehension of questions or
slow to understand; deaf and dumb; or unable to speak or understand the English
language or only imperfectly familiar therewith ( PP. vs. Dela Cruz, July 11, 2002) is
suffering from some mental deficiency, or where the intelligence of the witnesses is
impaired, thereby making necessary the making of suggestions:
For example: witnesses who are ignorant, feeble minded deaf-mutes, minors or
uneducated
In case of unwilling or hostile witnesses: they are uncooperative and will not readily
supply the facts desired by the examiner. The approach to these witnesses is to
conduct a direct examination as if it were a cross-examination
a. unwilling witnesses include (i) those who have to be compelled to testify by the
coercive processes of the court (ii) or those who, at the time of their presentation at
the witness stand, become evasive, reluctant or unfriendly
b. hostile-may refer to (i) a witness who manifest so much hostility and prejudice
during the direct examination that the party who called him is allowed to crossexamine, i.e to treat him as if he had been called by the opposite party or (ii) one
who surprises the party and unexpectedly turns against him
In either case, the party calling the witness must present proof of either adverse
interest on the part of the witness, his unjustified reluctance, or of his misleading
the party into calling him a witness, and on the basis of which the court shall
declare the witness to be a hostile witness. Thereafter leading questions are asked.
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1. A question which assumes a fact not yet testified to by a witness or still unproven
or by putting words into the mouth of the witness
2. A question premised on a fact which is contrary to that testified to or proven or
those which distort or do not accurately state the true facts. This is akin to twisting
the words of the witness
IMPEACHMENT
A. Concept: The process of showing that a witness is not credible or that his
testimony is not worthy of belief, i.e. casting doubt as to the credibility of the
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witness or credibility of his testimony. Note that credibility of the witness is different
from credibility of testimony
Generally the witness may be impeached during his cross-examination or during the
presentation of evidence by the party. Thus the witness of the plaintiff may be
impeached at the time he is cross-examined by the defendant and/or during the
presentation of evidence in chief by the defendant. On the other hand, the witness
of the defendant may be impeached by the plaintiff during the cross examination of
said witness and/or during the presentation of evidence during the rebuttal stage.
pressure be applied on the trigger for the gun to fire (ii) the claim of four big able
men having been attacked and mauled by one person who is who is much smaller in
height and heft
8. By showing defects in his observation, or that he has a faulty or selective
memory
9. By showing that this actions or conduct is inconsistent with his testimony.
Example: A rape victim was shown to have been partying with the alleged rapist
after the rape
10. By engaging the witness in contradictions and discrepancies as to the material
facts testified by him.
1. General Rule: It is not allowed pursuant to section 12. The reason is that a party
calling a witness is supposed to vouch for the truthfulness of the witness and of his
testimony, which he is assumed to know before hand, and is therefore bound by
whatever the witness testifies to in court. A party is not permitted to let the witness
be believed as to facts favorable to him, but to impeach him as to facts not
favorable.
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b). Build-Up. Let the witness affirm he made the prior statements freely, knowingly
and that he stood by the accuracy and truthfulness of said statements
c). Contrast: Confront the witness by the fact that his prior statement contradicts or
deviates or is materially different from his present statement
d). Demand an explanation why he made a different statement from his previous
statements
A. Concept: The act of excluding a future witness from the court room at the time
another witness is testifying or, of ordering that witnesses be kept separate from
one another to prevent them from conversing with one another.
1. This is upon the courts own motion or on motion of the adverse party.
2. A disobedient witness may be testify but his (a) testimony may be excluded or
(b). his disobedience may be considered to affect his credibility and (c) he maybe
punished for contempt of court
B. Purpose: To ensure the witnesses testify to the truth by preventing them from
being influenced by the testimony of others; to prevent connivance or collusion
among witnesses
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(Note: the practical purpose of this rule is defeated by the reservations for cross
examination or resetting to present another witness, such that the counsel and
other witness have the opportunity to go over the testimony of the witnesses).
2. Expert witnesses as they testify to their opinions based on facts of their own
knowledge, or on hypothetical facts
3. Witnesses on rebuttal
4. Character witnesses
5. Spectators unless they behave in a manner which is against the proper decorum
of the court or when the evidence to be presented are sensitive
B. Modes of reviving
1. By asking leading questions
2. By the Process of Association i.e. calling the attention of a person to a material
connected with a certain event so it would trigger the brain to associate the
material with the event and thereby enable the person to remember the event.
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Examples:
a). Presenting a pictorial representation of a person, thing, place, object or person
b). Playing the record of a conversation
c). Presenting physical objects such as trinkets, or other memorabilia
d). By allowing the witness to refer to a memorandum under section 16
A. Two Methods of Revival under Section 16. (These are useful methods to the
opposing counsel when conducting his cross examination. The proponent is
supposed to have already gone over the testimony of his witness and briefed him
hence, resorting to these methods reflect badly on the proponent).
Thus the evidence is not the memorandum or writing but what the testify
remembers as now testified
Provided
a). The written record/memorandum was written by him or by someone under his
direction ( who wrote it?)
b). It was written at the time the fact/event occurred or immediately thereafter or at
any time when the facts was still fresh in his mind ( when was it written?)
c). The record/memorandum is presented to the adverse party who may crossexamine on it, and it may be read into the evidence.
2. Past Recollection Recorded. The same procedure is followed but the witness is
still unable to recollect the event but he can assert that the facts therein narrated
are true. The evidence therefore is the writing itself.
3. Examples: (a). Filing clerks who record conversations then forget all about it (b)
Diaries (c) Letters
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The other portions is limited to those which tend to qualify or explain the part first
given and which were given at the same time.
B. Examples:
1. As the issue is the nature of the transaction between the parties, where plaintiff
presented his letter, it was proper for defendant to introduce all the other letters
which passed between them
2. Where a letter is presented on direct examination, it is proper on cross to ask if
there be any reply to it
3. Where a witness testified to the occurrence of a fight, it is proper to inquire on
the antecedents and details thereof, past altercations between those involved or
any bad blood between them
4. Where the Prosecution presented only a part of the records of the Preliminary
Investigation, the defense may introduce the whole record
1. The general rule is that verbal accuracy is not required but the substance or
effect of the actual words spoken will be sufficient so that the witness may testify to
the substance as best as he can from his recollection
2. However, in case of oral defamation, there is a need for verbal accuracy
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A. Child Witness- any person who, at the time of giving testimony, is below the
age of 18 years. In child abuse cases, a child includes one over 18 years but is
found by the court as unable to fully take car of himself or protect himself from
abuse, neglect, cruelty, exploitation, or discrimination because of a physical or
mental disability or condition.
SALIENT FEATURES
II. Allows the Court to, motu proprio or on motion, appoint certain persons to help in
the testimony of the child-witness:
A. Guardian Ad Litem- a person to protect the best interest of the child whose
appointment took into consideration his familiarity with the judicial process, social
service programs, and child development. The parent if preferred, if qualified. Has
the right to be present in all proceedings, to obtain copies of documents, interview
witnesses, make recommendations to the court, and to do all to protect the child.
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B. Interpreter- one, other than the regular court interpreter, whom the child can
understands and who understands the child.
C. Facilitator- one who poses the questions to the child who may be a child
psychologist, psychiatrist, social worker, guidance counselor, teacher, religious
leader, parent or relative. Counsels shall pose questions only through the facilitator.
D. Support Person- person chosen by the child to accompany him to testify at or
attend a judicial proceeding or deposition to provide emotional support to the child
III. Contains Child Centered Provisions during the actual testimony such as :
I. INTRODUCTION. Per section 2 of Rule 130, documents are writings or any material
containing letters, words, symbols, numbers, figures, or other modes of written
expressions offered as proof of their contents. They are either paper based or other
solid surfaced based documents. These are what are referred to by Rule 132.
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A.. Section 19 provides that for purposes of their presentation in court they are
either (i) public or (ii) private
a). Written Official acts of sovereign authority, official bodies, tribunals and public
officers: such as decisions or courts or quasi-judicial bodies, legislative enactments,
executive orders, directive from superior officers or memoranda, written
appointments, warrants issued by court, subpoenae, ships log book
b). Record of the official acts of said bodies or officers: e.g: the marriage contract
embodies the act of solemnizing a marriage; records of birth and death; written
oaths; returns and reports, congressional records of the deliberations in congress
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d). Public record (i) kept in the Philippines of private writings (ii) or required by law
to be kept therein. Example of the first would be documents affecting registered
lands which are submitted to the Register of Deeds, Assessors Office, Letters of
acknowledgement submitted to the Local Civil Registrar. Example of the second:
Personal Bio Data or Information Sheets submitted to form part of the 201 File of
government officials
III. AUTHENTICATION.
A.. By direct evidence consisting of the testimony of witness such as (i) the parties
to the document (ii) by an attesting /subscribing witness (iii) by a person who was
present and saw its execution and (iv) by the person before whom it was executed
and acknowledged
1. Direct evidence consisting of the testimony of the maker or party affirming his
own handwriting or signature
2. By the testimony of the attesting/subscribing witnesses or of witnesses to the
execution thereof
3. By the use of Opinion Evidence pursuant to the Section 22 of Rule 131 such as
(a) by one who has obtained sufficient familiarity (b) by an expert (c) based on a
comparison with a genuine handwriting
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A. In case of ancient documents: referring to private document which are more than
30 years old, produced from a custody in which it would naturally be found in
genuine and unblemished by nay alteration or circumstance of suspicion
1. The reason is the possible unavailability of witness due to the passage of time.
Age is to be reckoned from the execution to the date it is offered
(a) Proof of age: to be counted backwards from the time of offer to its date of
execution
(b) Proof that on its face it is free from any circumstance of suspicion, as when it
bears signatures which are not counter-signed, deletions, insertions, a missing
page, a page which is new or recent, use of different inks, or it bears different
handwritings, or suspicious tears
Proof of proper custody: this removes the suspicion of fraud and suggest the
document is genuine. Proper custodian/depository includes one who is entitled to
the possession such as a party and his successors in interest, privies or agents; as
well as one who is connected to the document that he may reasonably be inferred
to be in [possession thereof, such as a common witness.
B. When the due execution and genuiness has been admitted either expressly or by
provision of law, as in failure to deny under oath
32
1. Written Official Acts are conclusive because it is the act which is recorded
2. Documents consisting of entries in public records made in the performance of a
duty by a public officer are prima facie evidence of the facts stated therein
This does not include those made in excess of official duty and they are limited
to those facts which the public.
Examples
(i) Entries in the Records of Birth, Marriage, or Death of a person, as entered by the
Local Civil Registrar
(ii) Data in the Police Blotter
(iii) Return of Search Warrants
(iv). Entries in the time record
(v) Entries in the Community Tax Certificate or Tax Declaration of Property
(vi) The terms, conditions or consideration in a contract
3. The recitals in a public instrument, executed with all the legal formalities are
evidence against the parties thereto and their successors in interest, and a high
degree of proof is necessary to overcome the presumption that such recitals are
true.
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c) All other public documents are evidence of the act which gave rise to their
execution and date of execution. They are proof why they were executed and the
date thereof.
5. Examples: Certifications issued by a public officer. Recommendations and
endorsements by a public official.
of public or sovereign
Thus a Special Power of Attorney executed abroad, must be bear the Red Ribbon
coming from the Phil. Embassy or Consul
34
Ans. If it is written it is proved by: (i) the Official Publication thereof (ii) An official
copy issued by the custodian (iii) certified true copy accompanied by the
certification of the Phil. Foreign official and (iii) By the testimony of an expert .
D). In case of the public record of a private writing
(i) By the original record i.e. the very private document kept in official custody
(ii) By a copy duly certified by the custodian
(i) The Original of public record can not be presented by reason of the Rule on the
Irremovability of Public Records under section 26. Hence secondary evidence is
allowed which consist either of the Official Publication, if so published, or a certified
true copy thereof, unless if is extremely necessary that the original of the public
record be produced in court, but only upon lawful order of the court.
(vi) If the document presented consist of judicial record, such as decisions or orders,
they are conclusive and the only grounds to impeach said records are (a) want of
jurisdiction of the court which issue them (b) there was collusion between the court
and the prevailing party and (c) extrinsic fraud was practiced by the winning party
e). If what is sought to be proven is the lack of records in a certain public office,
there must be a certificate to that effect
35
Examples: 1. Certifications from the National Statistics Office that no marriage ever
took place between two people; or (2) from the POEA in illegal recruitment cases
and the (3) FEU in prosecutions for illegal possession of firearms.
Section 1. Burden of Proof the Duty of a party to present evidence on the facts in
issue necessary to establish his claim by the amount of evidence required by law.
This is also known as the Onus Probandi
I. Introduction.
Relationship between allegation and proof. He who alleges must prove. Allegations
do not prove themselves. Although plaintiffs causes of actions are couched in the
strongest terms and most persuasive language, the allegations are of no
consequence unless they are substantiated. Similarly, in criminal cases, the offense
and the aggravating circumstances charged in an Information remain just
accusations until they are shown to be true by the presentation of evidence.
Defendant is not relieved from liability simply because the raises a defenses.
3. Points of distinction:
a). The former never shifts but remains constant with the party while the latter
shifts from one party to the other as the trial progresses
b). In civil cases where it leis is determined by the pleadings while the latter is
determined by the rules of logic.
1. The general rule is- he who would lose the case if no evidence is presented.
Hence it is the plaintiff as to his causes of action, and the defendant as to his
counterclaim.
2. In criminal cases, the burden of proving guilt is always the plaintiff/prosecution.
But if the accused sets up an affirmative defense, the burden is on him to prove
such by clear, affirmative and strong evidence
The foregoing rests on the maxim: EL INCOMBIT PROBOTION QUI DECIT NON QUI
NEGAT ( He who asserts, not he who denies, must prove}
IV. The Equipoise Rule: where the evidence of the parties is evenly balanced, the
case will be resolved against the plaintiff, thus in criminal cases the accused must
be acquitted and in civil cases, the complaint must be dismissed.
37
A. By the Prosecution:
B. By the Accused
1. Non-Liability
a). His Affirmative Defenses by clear, positive and convincing evidence
b). His negative defenses such as denial alibi, or mistake in identity
2 Lesser liability: the offenses is a lesser offense or lesser stage of commission, or
that his participation is of lesser degree
3. Mitigating circumstances
1. In civil cases- if it constitutes part of the statement of the cause of action of the
plaintiff
a). Actions based on non-payment or non-delivery of money or goods
b) Actions based on non-compliance with a legal obligation, such as giving of
support, or of a contractual obligation or with the terms or conditions of a contract
c). Allegations of lack of due care on the part of the defendant
2. Criminal Cases:
38
a). if the negative allegation is an essential element of the offense charged or when
the charge is predicated on a negative allegation.
i). Lack of permit or license in offenses involving firearms
ii). Lack of permit or authority to recruit
iii). Absence of a Building Permit
iv).Absence of consent of the victim in sex crimes, theft or robbery; Arbitrary
Detention requiring proof of absence of formal charges filed within the required
period
v). Lack of care or failure to obey traffic rules, or to take necessary precautions, in
case of reckless imprudence
b). (i) If the negative of an issue does not permit of direct proof or (ii) the facts are
more immediately within the knowledge of the accused in which case the onus
probandi rest upon the accused ( PP. vs. Macalaban, 395 SCRA 461)
PRESUMPTIONS
39
I. Introduction: The facts in issue are either (i) proved by the presentation of
testimonial, documentary or object evidence or they are (ii) presumed
III. Classification:
Praesumption Legis: these are presumptions which the law directs to be made by
the court
a). Juris tantum- or prima facie, rebuttable or disputable
which may be overcome or disproved
presumption or those
b). Juris et de Jure: conclusive or those which the law does not
contradicted
allow to be
V. Components of a Presumption
2. The basic fact or factual basis because a presumption can not arise or be based
on another presumption. This may either be:
a). A fact within Judicial Knowledge in which case the presumption becomes
operative at the moment the case is filed or at any time thereafter. The basic fact
need not be proven.
For example: The presumption of a child being that of the husband arises only after
it is proven: that the parents were validly married and the child was born thereafter.
The presumption that a public officer was regularly appointed or elected after it is
first shown he was acting as a public officer. Likewise the presumption of
survivorship.
Note: There must be a rational connection between the Ultimate Fact and the Basic
Fact
be true, and to act upon such belief, he cannot in any litigation arising out of such
declaration, act or omission, be permitted to falsify it.
2. Estoppel Against a Tenant: the tenant is not permitted to deny title of his
landlord at the time of the commencement of the relation of landlord and tenant
between them .
1. Requirements:
a). As to the party estopped: (i). a conduct amounting to false representation or
concealment of material facts (ii). an intention that the conduct be acted upon or
that it will influence the other party and (iii) knowledge of the true facts
b). As to the party claiming estoppel: (i) an absolute lack of knowledge or of the
means of knowledge as to the true facts, not lack of diligence (ii) reliance in good
faith upon the conduct of the other party and (iii) the action or inaction resulted to
his damage or injury
2. Illustrations
a). A man who represents himself to be the true owner in a sale will not be
permitted later to deny the sale after he acquire title thereto
b). Estoppel to deny validity of sale as when the wife, in collusion with the husband,
concealed her true status induce her parents to believe she is single and to a
property which in truth is conjugal. The husband cannot deny the validity of the
deed
c). The heirs who represented the minors in a suit for partition cannot impugn the
validity of the judgment for lack of proper authorization
d) Jurisdiction by estoppel
e). Agency/Partnership by estoppel
f) But estoppel does not apply to the government for acts of the public officials
42
3. However the downside of the law is that it does not jibe with the proposition that
the land should be owned by those who actually till and utilize the land over those
whose sole connection to the land is merely a piece of document.
4. However, the lessee may assert ownership if after the lease, he acquires the
property is in his own right, such as when he buys it in an execution sale
I. INTRODUCTION:
A. While Rule 128 declared the two general requirements for admissibility of
evidence, Rule 130 spells out the particular requirements in order that certain kinds
of materials be admitted as evidence.
B. Sources of Knowledge or Evidence
1. Those derived from the testimony of people whether oral or written
2. Those obtained from circumstances
3. Those obtained through the use of the senses
43
a). these are the coverage of Section 1 and are presently referred to as Object
Evidence . Formerly they were referred top as autoptic or demonstrative
evidence
b). The occupy the highest level because nothing is more certain than the evidence
of our sense. Physical evidence is a mute but eloquent manifestation of truth and
rates highly in the hierarchy of trustworthy evidence
OBJECTS AS EVIDENCE
Section1. Object as evidence. Object as evidence are those addressed to the senses
of the court. When an object is relevant to the fact in issue, it may be exhibited to,
examined or viewed by the court.
I. COVERAGE: The definition covers any material that may be seen, heard, smelled,
felt, or touched. They are the sensual evidence and are grouped into:
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1. The process of proving that the object being presented in court is the very object
involved in the event
2. The purpose is two fold: (a) to /ensure preserve the Identity of the Object which is
to prevent the introduction of a different object and (b) to ensure/preserve the
Integrity of the Object which is to ensure that there are no significant changes or
alterations in the condition of the object or that the object has not been
contaminated
3. Important component elements of the process of Authentication:
a). Proof of Identity: Through the testimony of a witness as to objects which are
readily identifiable by sight provided there is a basis for the identification by the
witness which may either be:
(i) the markings placed by the witness upon the object, such as his initials, his
pictures in the digital camera, or
(ii) by the peculiar characteristics of the object i.e. by certain physical features
which sets it apart from others of the same kind or class by which it is readily
45
b). Proof of Identity and Integrity: By proving that there was no break in the Chainof-Custody in the event the object passed into the possession of different persons.
This means proving the chronological sequence through which the object was
handled only by persons who, by reason of their function or office, can reasonably
be expected to have the right or duty to possess or handle the object. This is done
by calling each of these persons to explain how and why he came into the
possession of the object and what he did with the object.
(i) When the object passed into the possession of a stranger, then there is doubt as
to the integrity, if not identity of the object.
c). Proof of Integrity: By proving the Proper Preservation of the object which consist
of showing that the object was kept in a secure place as to make contamination or
alteration difficult, and it has not been brought out until its presentment in court.
4. Effect if there was improper authentication: The object maybe excluded upon
proper objection, or that it may not be given any evidentiary value. Thus in a
criminal case, reliance thereon may be a ground for acquittal. Example: there was
conflicting testimony by the policemen as to the description of the bag allegedly
containing the drug. The conviction was reversed.
FACTS: The accused was convicted of libel. One of the evidence was a tape
recording of the radio broadcast which recording was made by the daughter of the
complainant, but the daughter was not however presented as a witness. Question:
Was the tape recoding properly admitted?
46
HELD: The person who actually recorded should be presented in order to lay the
foundation for the admission of the tape recording. Before a tape recording is
admissible in evidence and given probative value, the following requisites must first
be established:
(i). a showing that the recording devise was capable of taking testimony
(ii). a showing that the operator of the device was competent
(iii). establishment of the authenticity and correctness of the recording
(iv). a showing that changes, alterations, or deletions have not been made
(v). a showing of the manner of the preservation of the recording
(vi). identification of the speakers
(vii). a showing that the testimony elicited was voluntarily made without any kind of
inducement
A. The admission must not cause undue prejudice to the court, such as those
intended
B. The admission is subject to the demands of decency and propriety, unless the
admission is extremely necessary.
1. Exhibition of the private parts in sex cases
2. Presentation of the corpse or body parts
3. Re-enactment of violent or offensive acts
4. Examples:
a) The case of the old man accused of rape who had to show his private parts to
prove he is incapable of committing the crime
b). Case of William Alford charged of shooting a lawyer. He claimed self defense in
that he shot the victim who was beating him with a cane while the accused was
lying down on the ground. Prosecution witness claimed the bullet had driven
downward. Earl Rogers demanded that the intestine of the victim be brought to
court and by the testimony of an expert, showed that the bullet traveled upward
while the victim was bending over, thereby confirming the claim of the accused.
47
C. In crimes the gist of which is the illegal possession of an article, a distinction has
to be made:
48
1. Where the article is common or familiar article such that it can readily be
identified by sight, its presentation is not necessary, its existence may be shown by
testimony of witnesses.
Example: In a Prosecution for Illegal Possession of Firearms, the accused may still
be convicted even without the presentation of the gun in court.
a). PP. vs. Taguba ( 342 SCRA 199): In cases involving illegal possession of firearms
the prosecution has the burden of proving (a) the existence of the subject firearm
and (b) the fact that the accused does not have the corresponding permit to
possess. As to the first requisite, the existence can best be established by the
presentation of the firearm (but) there is no requirement that the actual FA itself
must be presented in court Its existence can be established by testimony thus
the non presentation is not fatal to the prosecution of an illegal possession case.
b). PP. vs. Taan, (506 SCRA 219, Oct. 30, 2006) The non-presentation of the subject
firearm is not fatal for the prosecution as long as the existence of the firearm can be
established by testimony
2. Where the articles however are not common or familiar to ordinary persons and
cannot be identified by sight, they must be presented in court. Example: drugs and
contraband items
1. The Daubert Test: The U.S. Supreme Court, in the case of Daubert vs. Menell Dow
Pharmaceuticals (1993) came up with a test of reliability and directed that trial
49
judges are to consider four factors when determining the admissibility of scientific
evidence, to wit:
a). whether the theory or technique can be tested
b). whether the proffered work has been subjected to peer review
c). whether the rate of error is acceptable
d). whether the method at issue enjoys widespread acceptance.
2. This Daubert Test was adopted by the Philippine Supreme Court when it finally
accepted the result of DNA testing as admissible evidence.
1. Paraffin Tests although they are not conclusive that a person did or did not fire a
gun
2. Lie Detection Test: The result is not admissible as evidence in the Philippines
3. Firearms Identification Evidence or Ballistic Test to determine whether a bullet
was fired from a particular gun
4. Questioned Document Test and Handwriting Analysis
5. Drug Tests on a Person
6. Toxicology or Test of Poison
7. Psychiatric examination
8. Voice Identification Test
8. Finger Printing
9. Identification through Dentures
10. Genetic Science such as DNA or Blood Test
A. Important terms involved in DNA Testing (or protocol) (PP vs. Vallejo, May 9,
2002; PP. vs. Yatar, 428 SCRA 504)
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1. DNA ( Deoxyribonucleic acid) is a molecule found inside all living cells which
carries the genetic information that is responsible for all cellular processes. Except
for identical twins, each persons DNA profile is distinct and unique.
2. DNA TYPING- the process of extracting and analyzing the DNA of a biological
sample taken from an individual or found in a crime scene.
a) Evidence Sample- material collected from the scene of the crime, from the
victims body or that of the suspect/subject
b) Reference Sample- material taken from the victim or subject
3. DNA PROFILE: the result of the process which is unique in every individual except
as to identical twins
4. DNA MATCHING- the process of matching or comparing the DNA profiles of the
Evidence Sample and the Reference Sample. The purpose is to ascertain whether an
association exists between the two samples.
1. PP vs. VALLEJO ( May 2002) and PP vs. YATAR ( 428 SCRA 504), adopting the
Dauber Test settled the admissibility of DNA tests as object evidence this wise:
Applying the Dauber Test the DNA evidence appreciated by the court a quo is
relevant and reliable since it is reasonably based on scientifically valid principles of
human genetics and molecular biology.
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C. Where Used:
VIII. Demonstrative Evidence: Tangible evidence i.e physical objects, which are
illustrate a matter of importance to the case but are not the very objects involved in
the case. They merely illustrate or represent or emphasize, visualize or make more
vivid what a party desires to emphasize. ( visual aids)
52
2. Importance: their use is very helpful as they provide a stronger impact and
lasting effect on the court.
DOCUMENTARY EVIDENCE
53
II. Rules governing the admissibility of documents include the Best Evidence Rule
and the Parole Evidence Rule.
54
A. If the subject of inquiry is the contents of the document. This means the cause
of action or defense is based on what are contained in the document i.e. the terms
and conditions, the entries, data or information written on the document. This
means the plaintiff is either enforcing a right based on, or created, by a document
or a party is seeking non-liability by virtue of the contents of a document. Examples:
B. When the rule does not apply even if an existing and available original document
is involved:
a). when the question refers to the external facts about the document such as
whether it exists or not, whether it was executed, sent, delivered or received
b). when the writing is merely a collateral fact, as when a witness refers to a writing
of a conversation which he heard and then jotted down or when the writing is used
merely as a point of reference
c). when the contents were admitted
d). the writing is treated as an object
2. when there was failure to deny specifically under oath the due execution and
genuiness of the document ( Consolidated Bank vs. Del Monte Motors, July 29,
2005)
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IV. Illustrations
1. The Marriage Contract as to the date, place, the parties and solemnizing officer
2. The Insurance Contract/Policy as to the coverage of the insurance
3. The deed of sale as to the consideration, terms and conditions of the sale
4. The lease contract as to the terms thereof
5. The sworn statement as to perjury
6. In case of libel based on a published article, the newspaper containing the article
7. The certified copy of the original judgment of conviction to prove the prior
conviction to constitute recidivism or habitual delinquency
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II. First Exception: When the original has been lost, destroyed, or cannot be
produced in court without bad faith on the part of the offeror.
(i). Proof of the existence and the due execution of the original through the
testimonies of the persons who executed the document; the instrumental witnesses;
by an eyewitness thereof; who saw it after its execution and recognized the
signatures therein; by the person before whom it was acknowledged, or to whom its
existence was narrated
(ii). Proof of the fact of loss or destruction of the original through the testimonies of
(a) anyone who knew of the fact of the loss as in the case of an eyewitness to the
loss or testimony of the last custodian (b) any who made a diligent search in the
places where the original was expected to be in custody and who failed to locate it
(c) one specially tasked to locate but was unable to find the original, as in the case
of a detective.
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If the original consists of several copies, all must be accounted for and proven to be
lost.
5. If the offeror failed to lay the proper foundation but the opposing party did not
make any objection, the secondary evidence may be treated as if it were on the
same level as the original and given the same weight as an original.
Illustration: PP. vs. Cayabayab (Aug. 03, 2005). In a rape case the prosecution
presented a photocopy of the birth certificate of the victim to prove her age and
which was not objected to. The admissibility and weight were later questioned in the
Supreme Court.
1. The best evidence to prove a persons age is the original birth certificate or
certified copy thereof; in their absence, similar authentic documents maybe
presented such as baptismal certificates and school records. If the original or
certified true copy of the birth certificate is not available credible testimony of the
58
mother or a member of the family maybe sufficient under the circumstances. In the
event that both the birth certificate or authentic documents and the testimonies of
the victims mother or other qualified relatives are unavailable, the testimony of the
victim ( a minor 6 years of age) maybe admitted in evidence provided it is expressly
and clearly admitted by the accused.
2. Having failed to raise a valid and timely objection against the presentation of this
secondary evidence the same became a primary evidence and deemed admitted
and the other party is bound thereby.
III. Second Exception: When the original is in the adverse partys custody and
control.
2. Proof that the original is in the (a) actual physical possession/custody or (b)
control i.e. possession or custody by a third person for and in behalf of the adverse
party, as that of a lawyer, agent or the bank.
Maybe by the testimony of he who delivered the document; registry return receipt
by the Post Office or some other commercial establishments engaged in the delivery
of articles and the receipt thereof, or by one who witnessed the original being in the
possession of the adverse party.
3. Proof that reasonable notice was given to the adverse party to produce the
original: the notice must specify the document to be produced.
a) If the documents are self incriminatory, notice must still be sent as the adverse
party may waive the right
b) The notice may be a formal notice or an-on-the-spot oral demand in court if the
documents are in the actual physical possession of the adverse party.
C. Proof of the contents is by the same secondary evidence as in the case of loss.
IV. Third Exception: When the original consists of numerous accounts or other
documents which cannot be produced in court without great loss of time and the
fact sought to be established there from is only the general result of the whole.
C. How the general result is introduced: (a) by the testimony of an expert who
examined the whole account or records (b) by the introduction of authenticated
abstracts, summaries or schedules
D. Illustrations:
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1. The income of a business entity for a period of time maybe known through the
income tax return field by it, or by the result of the examination of an accountant
2. A general summary of expenses incurred maybe embodied in a summary to
which are attached the necessary supporting receipts witness
3. The state of health of an individual maybe established through the testimony of
the physician
4. The published financial statement of SLU as appearing in the White and Blue
V. Fourth Exception: When the original is a public record in the custody of a public
official or is recorded in a public office
A.. The documents involved: (a) a strictly public document such as the record of
birth, the decision of a court and (b) a private document which was made part of
the public record, such as a document of mortgagee involving a registered land and
submitted of the Office of the Register of Deeds
B. Reason: The Principle of Irremovability of Public Records i.e. public records cannot
be removed or brought out from where they are officially kept. Reasons: (i) the
records should be made accessible to the public at all times (ii) the great in
convenience caused to the official custodian if he were called to present the records
to the court every now and then and (iii) to guard against the possibility of
loss/destruction of the documents while in transit.
C. Exception or when the original has to be presented. Only upon prior Order from
the court as when an actual inspection is necessary for the proper determination of
the case, as in cases of falsification pursuant to the Gregorio Doctrine. In the
absence of a court order, the official may be liable for infidelity in the custody of
documents.
1. A certified copy issued by the official custodian bearing the signature and the
official seal of his office. When presented the document must bear the documentary
and science stamp and the accompanied by the official receipt of payment of the
copy
2. An official publication thereof
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A. One the contents of which, is the subject of inquiry as determined by the issues
involved: Which document is it that the contents of which is in question?
Thus in case of libel and the issue is who be the author of the libel as published?
Then the original is the letter sent to the media. But if the question is whether the
letter is libelous, then the original is the letter.
B. Duplicate Originals. Two or more copies executed at or about the same time with
identical contents.
1. Examples: carbon originals, blue prints, tracing cloths. Copies mass produced
from the printing press or from the printer of computers.
C. Entries repeated in the regular course of business one copied from the other at or
near the time of the transaction to which they relate, all are considered as original.
1. Examples are entries in the Books of Account which are copied from one
book/ledger and transferred to another
2. Entries in receipts for the sales for the day which at night are recorded in a ledger
and which in turn are recorded in the sales for the week and then entered in the
ledger for the sales of the month.
3. Scores in the examination booklets which are recorded in the teachers record
which then are recorded in the official grade sheet submitted to the deans office.
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II. Basis and Reason: The Principle of Integration of Jural Acts. The written
agreement is the final culmination of the negotiation and discussion of the parties
as to their respective proposals and counter-proposals and is the final and sole
repository, memorial and evidence of what was finally agreed upon. Therefore,
whatever is not found in the written agreement is deemed to have been abandoned,
disregarded, or waived by them. Only those contained in the written agreement are
considered the only ones finally agreed upon and no other. Thus oral testimony will
not be permitted to show there were other agreements or terms between the
parties.
III. Purposes: (i) to give stability and permanence to written agreements otherwise
they can be changed anytime by mere testimony, then written agreements would
serve no useful purpose (ii) to remove the temptation and possibility of perjury
which would be rampant if oral/parole evidence were allowed as a party may resort
to such testimony in order to either escape compliance with his obligation, or to
create fictitious terms favorable to him.
IV. Distinguished from the Best Evidence Rule. Both refer to a written document but
they differ in the following aspects:
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a). Void contracts do not create any right and produces no legal effects
b). The contract maybe in any written form whether in the standard form or as
worded by the parties themselves
c). The document may be signed or not as in the case of way bills, tickets
d). The rule does not cover mere receipts of money or property since these are
incomplete and are not considered to be the exclusive memorial of the agreement
and are inconclusive
e). However a Statement of a Fact, as distinguished from statements which
constitute Terms of the Contractual Agreement maybe varied, such as statements
as to the personal qualifications of the parties.
3. That the dispute is between the parties to the contract or their successors or that
the rule is invoked by one who is given a right or imposed an obligation by the
contract. This is because the binding effect of a contract is only upon the parties
thereto or their successors.
1. Those which refer to separate and distinct subject matters and which do not vary
or contradict the written agreement.
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Example: The buyer of a land in a written contract may prove by oral testimony that
the seller agreed to give him the right of first refusal of the sellers adjoining lot.
Similarly the promise of first refusal by the lessor in favor of the lessee may be
proven by oral testimony.
Example: that the contract be first referred to a third person who must give his
approval thereto or that a third person should also sign as a witness thereto.
3. Those which are the moving and inducing cause, or that they form part of the
consideration and the contract was executed on the faith of such oral agreement in
that : (i) the party would not have executed the contract were it not for the oral
agreement and ii) they do not vary or contradict the written agreement.
a). The promise by a vendor to give a road right of way to the vendee over the
latters remaining property
b). An agreement to allow the son of the vendor to occupy a room free of charge in
the apartment sold, for a certain period of time
c). An agreement that the vendor shall harvest the standing crops over the land
sold
d). An agreement that the vendor shall cause the eviction of squatters from the land
sold
e) That the party was to pay off the indebtedness of the other; or to give or deliver
a thing to a third person.
CONCEPT: When oral testimony is allowed even if they pertain to the contents,
terms or agreements of the document, provided they were specifically alleged in the
pleadings by the party concerned.
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a). It is of two kinds: (i) when the description of the person or property is clear but it
turns out the description fits two or more persons or things and (ii) where the
description of the person or object is imperfect or erroneous so as to leave doubt
what person or object is referred to.
b). Examples: (i) the donee is described as My uncle Tom but the donor has
several uncles named Tom (ii) the thing sold is my house and lot in Baguio City
but the vendor has three houses and lots in Baguio City (iii) the money shall be for
the tuition fee of my son who is enrolled in SLU but it is the daughter who is
enrolled in SLU while the son is enrolled in UB (iv) the subject of the sale is the
vendors two storey house in Bakakeng but what he has in Bakakeng is a grocery
store and it is his house in Aurora Hill which is two stories.
c). Reason for the exception: the introduction of oral testimony does not vary or
contradict the document but it aids the court in ascertaining and interpreting the
document thereby enabling it to give effect and life to the document.
a). Aside from being clear and apparent, the ambiguity is permanent and incurable.
It cannot be removed or explained even with the use of extrinsic aids or
construction or interpretation.
b). Examples: (i) A promissory note or memorandum of indebtedness which does
not specify the amount of the obligation (ii) sale of property without the property
being described or (iii) where the description is one of several properties or one
of several persons is mentioned but he is not specifically identified e.g. I leave my
cash to my favorite son.
a). Examples: (i). the use of the word dollar (ii) the use of the term sugar (iii)
where in a deed of mortgage it was uncertain which amount of loan was being
secured
C. The Failure of the Written Agreement to Express the True Intent and Agreement of
the Parties
1. The deed maybe ambiguous or vague either through ignorance, lack of skill or
negligence of the party/person who drafted the deed, or through the use of
imprecise words.
2. Maybe cured through the remedy of reformation of instrument
3. Example: (i) The deed turned out to be a sale when the intention was as a
security or (ii) the deed was a sale and not an SPA
1. One or both parties assert the agreement or document is null and void or
unenforceable for lack of the essential elements of a valid contract.
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TESTIMONIAL EVIDENCE
II. WITNESS: A witness is a natural person who testifies in a case or one who gives
oral evidence under oath before a judicial tribunal. Evidence obtained through the
presentation of animals is treated as object evidence.
B. Duty to Testify is a Legal Duty and not just a matter of civic consciousness. This
may be enforced by the imposition of sanctions by the court, such as a citation for
contempt and consequent payment of a fine or imprisonment.
1.
2.
3.
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4.
5.
6.
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C. COMPETENCY of a witness
A. Who Are Disqualified: General Rule: Only those expressly covered under the
enumerations by law maybe disqualified from testifying
grounds: (i) interest in the outcome of a case (ii) relationship to a party, as both
affect merely credibility (iii). Sex (iv). race (v). creed (vi). property or (vii). prior
conviction of a crime.
C. Kinds of Disqualification
1. Total or absolute - the person is disqualified from being a witness due to a
physical or mental cause
2. Partial or relative- the witness is disqualified from testifying only on certain
matters but not as to others facts
II. Mental Incapacity: those whose mental condition at the time of their production
for examination, is such that they are incapable of intelligently making known their
perception to others.
1. Medically Insane persons unless they are testifying during their lucid intervals.
a). Sanity is presumed, it is the opponent who must prove this ground.
b). However, the party presenting the witness must prove sanity in these two
instances: (i) if the witness has been recently declared as of unsound mind by the
court or by a competent physician (ii. is an inmate in an asylum or mental
institution.
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2. Persons medically sane may be considered as legally insane if at the time they
are to be presented as witness, they are incapable of testifying truthfully or of being
aware of the obligation to testify. Included here are drunks, those under the
influence of drugs or alcohol, or suffering from some temporary mental disability.
4. Deaf mutes are not disqualified so long as they are able to communicate in some
manner which can be understood and, in case of the use of sign-language, the
interpretation thereof can be verified.
III. Mental Immaturity: these refer to children of tender age whose mental maturity
is such as to render them incapable of perceiving the facts respecting which they
are examined and of relating them truthfully.
A. Age is not the criterion but the intelligence and possession of the qualities of a
witness
B. The credibility of Children as witness take into account two possibilities: (i)
children are prone to exaggerate and influenced by suggestions from adults and (ii)
lack of motive to testify falsely
C. Under the Rule On Examination of a Child Witness, it is provided that:
a). Every child is presumed to be qualified to be a witness
b) The court may however conduct a competency examination (voir dire
examination) motu proprio or on motion of a party, when it finds that substantial
doubt exists regarding the ability of the child to perceive, remember, communicate,
distinguish truth from falsehood, or appreciate the duty to tell the truth in court.
I. Statement of the Rule: During the marriage neither spouse ( i.e. the witness
spouse) may testify for or against the other (i.e. the Party spouse) without the
consent of the affected spouse ( i.e. the party spouse).
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A. One Spouse is a party to a case, whether civil or criminal, singly or with other
third persons
B. The spouses are validly married. These include voidable marriages as well as
those where there is a presumption of a valid marriage in the absence of a marriage
contract.
C. The marriage is subsisting at the time one is called to testify against the other in
that it has not been dissolved by death or by law. Thus the prohibition is not
perpetual.
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A. In a civil case filed by one against the other. Examples: cases of annulment, legal
separation, support, declaration of mental incompetency, separation of property.
B. In a criminal case for a crime (i) committed by one against the other such as
those involving physical assault and violence; Violation of RA 9262; economic
abuse or (ii) against the direct ascendant or descendant of the other
C. When the reason for the law has ceased. Where the marital and domestic
relations are so strained that there is no more harmony to be preserved, nor peace
and tranquility which maybe disturbed, the reasons based on such harmony and
tranquility no longer apply. In such cases, the identity of interest disappears and the
consequent danger of perjury based on identity of interest disappears. (The law
ceases when the reason for the law ceases)
II. APPLICABILITY
A. The case must be a civil case where the defendant is the executor, administrator
or representative of the deceased person of person of unsound mind. But the rule
will not apply to a counter-claim against the plaintiff.
B. The subject is a claim or demand i.e. one that affects the real or personal
properties:
1. The case must be a personal action for the enforcement of a debt or demand
involving money judgment, or where the defendant is demanded to deliver personal
property to plaintiff
2. The evidence of this claim is purely testimonial and allegedly incurred prior to the
death or insanity. They are therefore fictitious claims.
C. The subject of the testimony is as to a matter of fact occurring before the death
or insanity. The testimony is the only evidence of the claim or demand.
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1. The death/insanity maybe before or during the pendency of the case so long as it
was before the death/insanity.
2. The matters prohibited are those made in the presence and hearing of the
decedent which he might testify to if alive or sane, i.e. adverse to him, and not to
those which maybe known from other sources.
Disqualification by reason of
privileged communications.
D. Who may claim the privilege: it may be asserted by the person for whose benefit
the privilege was granted personally, or through a representative, or it may be
claimed for him by the court.
1. Those enumerated under Section 24 of Rule 130 of the Revised Rules of Court.
2. Those declared as privileged by specific provision of a law (Statutory Privileged
Communications).
3. Those declared as such by Privilege Communications by Jurisprudence.
I. RULE: The husband or wife, during or after the marriage, cannot be examined
without the consent of the other as to any communication received in confidence by
one from the other during the marriage.
III. REQUISITES:
1. Those which are in the form oral expressions made directly and personally, or
through some mechanical device such as through the phone; or written as in
conventional letters or through the use of secret codes or through the internet or
text messages.
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V. MISCELLANEOUS
his employer, concerning any fact the knowledge of which has been acquired in
such capacity
II. REASON: The rule is grounded on public policy and the proper administration of
justice. It is to encourage clients to make a full disclosure of all facts relative to a
problem for which he sought the professional services of a lawyer, without fear or
reservation that these facts will later be revealed especially if the nature of the facts
are such that they might adversely affect his rights, property or reputation. This is
to inspire confidence and thus it is also to enable the lawyer to give the appropriate
advice or to undertake such action that will best serve the interest of the client.
III. REQUIREMENTS
A. There must be a lawyer-client relationship
2. Government prosecutors are not included but they are prohibited from making
disclosures under penal laws, such as The Revised Penal Code under its provisions
on Revelation of Private Secrets.
4. The relationship maybe created by mutual consent at the initiative of the client,
or is created by Order of the Court as in the case of a counsel de officio.
a). the relationship exists whenever the client consults with a lawyer in relation to a
matter which needs the professional services of the lawyer be it for advice or
representation in a future or present legal action.
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b). it does not matter that no fee was paid, or that the lawyer later refused to
represent the client or that he withdrew from the action.
c). however the rule does not cover situations where the lawyer was consulted
merely as a notary
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(iv). Where it is the identity of the client which is sought to be confidential ( Regala
vs. Sandiganbayan: 262 SCRA 122)
(e). Those covered by the Doctrine of Work Product. The pleadings prepared by
the lawyer or his private files containing either facts and data obtained by him or
resulting from his own investigation or by any investigator hired by him; and/or his
impressions or conclusions whether reduced in writing or not, about the client or
the clients cause.
A lawyer may not therefore testify that his client, charged with theft of silver coins,
paid him with silver coins.
3. The following communications are not covered and the lawyer may reveal them:
A. The duration is perpetual even after the lawyer-client relationship has already
ceased.
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B. The rule maybe waived by the client alone, or by his representatives in case of
his death, expressly or by implication.
1. If he is a party to a case and his lawyer was called as a witness by his opponent:
(a) by failure of the client to object to the questions concerning the privileged
communications or (b) having objected on direct, the client cross-examines on the
privileged communications.
2. When the client presents evidence on the privileged communication, the
opposing party may call on the lawyer to rebut the evidence.
3. When the client calls on the lawyer to testify on the privileged communication
4. In case of a suit by and between the lawyer and the client, the rule does not
apply
5. When the lawyer is accused of a crime in relation to the act of the client which
was the subject of their professional relationship, he may reveal the privileged
communications to prove he had nothing to do with the crime.
C. If the lawyer, as witness to a case which does not involve the client, divulges
confidential communication without the prior consent of the client, he may be liable
criminally, civilly and administratively.
3. PHYSICIAN-PATIENT
II. PURPOSES: (a). To inspire confidence in patients and encourage them to make a
full disclosure of all facts, circumstances or symptoms of their sickness, without fear
of their future disclosure, so that a physician can form an opinion and be enabled to
safely and effectively treat the patient. (b).To protect the patients reputation.
III. REQUIREMENT
1. Public policy looks to the maintenance of peace and order, upholding the law, the
acquittal of the innocent and punishment of the guilty, as more important than the
purposes of the privilege.
2. It is not required that the patient is a party to this case.
1. The communication was made while the witness was acting in his professional
capacity i.e he was attending to a person as a patient and to whom the physicianwitness rendered curative, palliative or preventive treatment.
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c). the nature of the treatment given, his opinion or advice given to the patient,
including oral prescriptions (written prescriptions for medicines are intended to be
read by pharmacist and third persons and are not confidential)
d). the clinical records, x-ray plates, radiographs, and other documents pertaining to
the treatment, diagnosis, illness or process of ascertaining the illness of the patient.
E. If disclosed the information would blacken the reputation of the patient. It causes
disgrace or embarrassment or puts him in a bad light. Example: disclosure that the
patient is a sexual pervert, or suffers from delusions or from a disease.
A. Criminal cases
B. When the person testifying is not the physician. However the patient himself can
not be compelled to testify on the privileged communications.
C. Where the physician is presented merely as an expert and is testifying upon
hypothetical questions.
D. Autopsies conducted to ascertain the cause of death of a person
E. Court ordered examinations
F. When the patient, as party to a case, testifies as to his own illness or condition, he
opens the door for the opposing party to rebut the testimony by calling on the
physician.
G. When the patient, as party to a case, calls on the physician as his own witness.
H. In a malpractice suit against the physician by the patient.
I. Where there is a Contractual Waiver in that the patient agreed to undergo an
examination and make known the result thereof as a condition to the grant or
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4. PRIEST/MINISTER- PENITENT
I. RULE. A minister or priest cannot, without the consent of the person making the
confession, be examined as to any confession made to or any advice given by him
in his professional character in the course of discipline enjoined by the church to
which the minister or priest belongs.
II. CONCEPT and PURPOSE : This is often referred to as the Seal of the
Confessional. A priest or minister or similar religious person cannot be compelled
to testify and divulge matters which were revealed to him by way of a confession.
The purpose is in recognition of religious freedom and to protect the practice of
making confessions.
III. REQUIREMENTS:
A. The witness is a priest or minister or similar religious personality.
1. The term priest or minister should not be given a restrictive meaning but
should include any religious personality of the same or similar stature as a priest or
minister.
2. Question: As worded the rule applies only to religious personalities of the
Christian religion. Should the rule be interpreted to include non-Christians? Thus in
Buddhism, confessing one sins to a superior is part of the Buddhist practice.
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2. The revelation of wrong doings must therefore be penitential in that the purpose
is to seek spiritual absolution, spiritual assistance, or healing of the soul. If the
purpose is otherwise, then it is not privileged, as when all that the person was to
unburden himself from guilty feelings.
4. The court may inquire preliminarily from the priest /minister as to the state of
mind of the confessant i.e whether it is penitential or not.
5. The confession is one given directly and personally to the priest/ minister and in
secrecy. Public avowals are not included.
C. The confession must have been made to the priest/minister in his professional
character in the course of the discipline of the church to which the priest/minister
belongs.
III. Observations:
1. Must the confessant belong to the same church as the priest/minister?
2. If the penitent consents, may his confession be divulged?
5. PUBLIC OFFICER.
II. PURPOSES:
To encourage citizens to reveal their knowledge about the commission of crimes
To protect legitimate police operations against criminals
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III.REQUIREMENTS
1. The public officer refers to those whose duty involves the investigation or
prosecution of public wrongs or violations of laws. They pertain mostly to law
enforcement agents and prosecutors, as well as those in charge of the enforcement
of the law violated.
B. Informants covered ( informers are also called coordinating individuals (or CIs),
citizens, or assets; in American police parlance they are called nose, snitch, or stool
pigeons)
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1.
Walk-in or phone-in informants e.g. those who report crimes in person or by
calling police hot lines or individual police officers
2.
Deep Penetration Agents or those embedded who actually join criminal
organizations/gangs by pretending to be one of them but are secretly gathering
information which they secretly relay to the law enforcement agents
3.
4.
Regular informants or those who regularly report on suspected criminals and
their activities. They may be acquaintances, neighbors or friends of the criminals
themselves. They are known only to their agent handler.
1. Per the American case of Roviero vs. U.S (353 U.S. 53) in 1957 which ruled thus:
when it appears from the evidence that the informer is also a material witness, is
present with the accused at the occurrence of the alleged crime, and might also be
a material witness as to whether the accused knowingly and intentionally delivered
drugs as charged, his identity is relevant and maybe helpful to the defendant, it
may said that disclosure is proper in the following situations:
a). when his identity is known to the accused not necessarily by name but by face
and other physical features, unless he is being also used in another operations
b). when it is relevant and helpful to the defense and is essential to a proper
disposition of the case
c) when it is claimed that there was an entrapment where he participated as a
decoy or agent provocateur and the said entrapment can not be established
without his testimony
2. If the informant disclosed his identity to persons other than the law enforcement
agents, this maybe basis for the accused to demand disclosure.
1.
2.
3.
Minors who are victims of crimes under the Child Abuse Law
4.
The records of cases involving Children in Conflict with the Law under the
Juvenile Justice Law if (i) the case against them has been dismissed (ii) they were
acquitted or (iii) having been convicted and having undergone rehabilitation, they
were eventually discharged
5.
6.
7.
8.
Bank Deposits under the Secrecy of Bank Deposits law except under the
following:
10. DNA Profiles and all the results or other information obtained from DNA testing
which testing was court- approved / ordered, subject to certain exceptions (Sec. 11
of the Rule on DNA Evidence promulgated by the Supreme Court and effective on
October 15, 2007)
-o0o-
1. EXECUTIVE PRIVILEGE.
A. This is of American Origin but was adopted by the Supreme Court when it
decided the case of Senate of the Philippines vs. Eduardo Ermita ( April 20, 2006)
1. State secrets regarding military, diplomatic and other national security matters.
2.Closed Door cabinet meetings; presidential conversations, correspondence and
discussions with the cabinet and presidential advisers under the principle of
Confidentiality of Executive Deliberations
3. Information in the investigation of crimes by law enforcement agencies before
prosecution of the accused.
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TESTIMONIAL PRIVILEGE
I. RULE: Sec. 25. Parental and Filial privilege.- No persons may be compelled to
testify against his parents, other direct descendant, children or other direct
descendants.
A.. The privilege maybe claimed only by the witness in any case whether civil or
criminal but it may be waived as when he volunteers to be a witness. B. However,
by way of an exception, Article 215of the Family Code provides that a descendant
may be compelled to testify against his parents and grandparents, if such testimony
is indispensable In prosecuting a crime against the descendant or by one parent
against the other.
-o0o-
Generally the evidence of a party are those obtained and/or supplied from his own
side. However evidence may be taken from the opposite party especially those
which the latter does not voluntarily present because they are adverse to him. They
are in the form of (i) Admissions (ii) Confessions and (iii) Declarations against
Interest.
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ADMISSIONS
Section 26. The act, declaration, or omission of a party as to a relevant fact maybe
given in evidence against him.
II. Kinds
A. As to where it is made: (i). Judicial ( if made in the proceedings of the case where
it is to be used as evidence) or (ii). extra judicial (if made outside the proceedings
of the case)
B. As to how made: (i) Express or (ii) Implied
C. As who made the admission: (i) By the party to the case either as the offended
party or accused; or as the plaintiff or defendant (ii) Third person due to the
principle of Vicarious Admissions or Adoptive Admissions.
D. As to form: (i) By an act or conduct (ii) Declaration either oral or written or (iii)
through an omission
E. As to their effect: (i) Against Interest or (ii) Self serving admissions
III. Reason for the Rule: Presumption of truth in the admission in that no person
would do an act or declare something which is contrary to his own interest unless
such act or declaration is true.
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VI. How to prove. An admission may be proved by the testimonies of those who
heard the oral statement or to whom it was given, or who saw the act, and by
presenting the written declaration itself.
Unexplained delay is an admission of lack of merit as in: (a) claim of self defense (b)
of a cause of action or defense
Sending/giving an apology (gift-offerings), asking for forgiveness, are admissible as
proof of guilt or fault
But repair of vehicles involved in a collision is an exercise of a right and not an
admission of fault.
The act of a lessor in repairing the leased tenement is an implied admission that he
is the party with the obligation to make repairs and not the lessee.
OFFER OF COMPROMISE
II. RULE IN CIVIL CASES per Section 27. An offer of compromise is not an admission
of liability or that anything is due and is not admissible in evidence.
A. Reason: It is the policy of the law to encourage the parties to settle their
differences peacefully without need of going to the courts and in keeping with the
trend to settle disputes through alternative dispute resolutions, as well as to
unclog the docket of the courts.
arrangement, the agreement becomes the basis for the courts decision on the
case.
Examples:
a). X writes Y demanding payment of a debt. Y answers and offers to pay half and
the other half within an extended period plus an additional interest, if X foregoes
suing him because he also has to pay off his debt to Z. In a suit by Z against Y, such
offer of Y to X may be used in favor of Z if Y denies liability.
b). X sues Y for failure of Y to deliver the jewelry subject of a sale. Y offers during
the Pre-Trial that he will deliver the jewelry in two months after he has redeemed
them from Z and if the case is withdrawn, he will pay additional damages to X. If Y
later files a theft case against Z over the jewelry, his offer in the civil case is
admissible.
2. When the offer contains an admission of liability, such as the existence and
correctness of the amount.
Examples:
a). P demands of D to return money received by D as consideration for goods which
D did not deliver. D offers to deliver within a certain period of time provided P
foregoes with the damages. D claims he has not intention of fooling P as he suffered
temporary business reveres. The offer is admissible against D.
b). P demands P to leave the house for unpaid rentals. P asks he be given 3 months
extension to pay as his money has not yet arrived. He later denies having unpaid
rentals.
A. Offers contemplated: are those which are made out of consciousness of guilt,
where the accused acknowledges doing the act or incurring the omission and
desires to escape punishment by offering to buy off the complainant. Those made to
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b). Prosecutions under the NIRC where payment of the compromise penalty will be a
ground for the non filing of a criminal case.
c). Genuine Offers to Marry by the accused in crimes against chastity.
those who need immediate medical attention and because of the possibility that the
offer to help arose from humanitarian concerns and not from guilty conscience.
4. Those made pursuant to tribal customs and traditions
5. Those which were not authorized by the party or made in his behalf but without
his consent and/or knowledge.
6. Those where the party was induced by fraud or force or intimidation
7. Those which did not arise from a guilty conscience
RULE: Section 28. Admissions by a third party. The rights of a party may not be
prejudiced by the act, declaration or omission of another.
B. Reason: (i) Fairness and (ii) Acts of third persons are irrelevant to the case
involving the act of a party which is the subject of the case.
b). The act or declaration must refer to a matter within the scope of the authority of
the partners, or that it relates to the partnership. Such as:
(i). obtaining a credit or loan or incurring of a liability for the partnership, such as
borrowing money to add to the capital
(ii). execution of a promissory note or execution of a similar contracts
(iii). statements as to the financial condition of the partnership
(iv). declarations as to the ownership of partnership properties
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3. As to Joint Owners, they need not be equal owners. Joint debtors refer to solidary
debtors. The requirements are similar to that among partners, agent-principal.
3. Requirements:
a). The existence of the conspiracy among the accused must first be established.
(i). May be by direct proof or circumstantial evidence showing Unity of Intention or
Purpose and Unity of Action.
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(ii). The act or declaration may be presented first subject to the rule on conditional
admissibility i.e. proof of the conspiracy be presented latter, or the act or
declaration may be admitted to prove the guilt of the declarant and not to prove the
conspiracy.
b). The act or declaration must relate to the conspiracy or common objective, such
as:
(i). the participation of each in the commission of the crime
(ii). The manner of achieving the objective
(iii). Defenses to be made or relating to the escape
(iv). Ensuing the successful execution of the plan.
Ex: The killing of an approaching policeman by the look-out in a robbery, even if not
agreed upon, but was necessary to prevent the discovery, is the liability of all the
robbers.
c). The act or declaration was made while the declarant was engaged in carrying
out the conspiracy in that the conspiracy must still be in existence, and not when
the conspiracy has ceased. A conspiracy ceases: (i) when the crime agreed upon
has already been committed (ii) the accused were apprehended (iii) as to one who
left the conspiracy and did not participate in its execution (iv) when the plan was
abandoned.
Thus: statements by one of the accused while in custody; acts done upon the arrest
of the several accused, do not anymore bind the other. Examples: Statements given
to the media after arrest binds only the declarant. The act of one in killing an
arresting officer in order to escape binds him alone.
4. The rule applies to a Conspiracy By Adoption: When one joins a conspiracy after
its formation and he actively participates in it, he adopts the previous acts and
declarations of his fellow conspirators which are admissible against him.
C. Admission by Privies When one derives property from another, the act
declaration, or omission of the latter, while holding title, in relation to the property is
evidence against the former ( Section 31).
1. Privies are those who have mutual or succession of relationship to a property
either by: (a) law, such as heirship or hereditary succession, or purchase in a public
sale, or (b). by the act of the former owner, such as instituting an heir, legatee, or
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devisee, or naming a donee; or by (c). mutual consent between the former and
present owner, such as by deed of sale.
2. Concept of the Rule: The present owner of a property acquires the property
subject to the same burdens, obligations, liabilities or conditions which could have
been enforced against the previous owner.
3. Illustrations of acts of the prior owner which bind the present owner:
a). The previous acts of the owner alienating a portion of the property, or creating a
lien in favor of a third person
b). Contracts of Lease, mortgages
c). Statements by the prior owner that he obtained the property by fraud, or that he
has only a limited interest in the property
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Example: Estrada vs. Arroyo 356 SCRA 108; 353 SCRA 452: In said case Estradas
lack of objection or comment to the statements, proposals by Sen. Angara
concerning Eraps leaving Malacanang, ( as narrated in the so called Angara
Diaries serialized in the Phil Inquirer) such as the negotiations with the Arroyo camp,
the points/conditions of his leaving the palace, were considered as evidence
admissible against Erap to prove he acquiesced to his removal and that he
voluntarily relinquished the presidency. The court further expounded on admission
by adoption as being:
(a) By conduct manifesting a partys belief in the truthfulness of the statement of a
third person by expressly or implicitly concurring with it; or responding in such a
way that manifests a the adoption of the statement
(b) By a partys refusal to refute an accusatory statement that a reasonable person
would refute under the same or similar circumstances
B. REASON: This is based on the human and natural instinct to resist, rebut, deny or
object to untrue statements about ones life, family, rights, property or interests.
The failure to do so is an implied admission of the truth of the statement. QUI
TACET CONSENTIRE VIDDETUR.
Hence, he who remains silent when he ought to speak can not be heard to speak
when he should be silent.
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when the party was distracted, or his view was obstructed, then the rule will not
apply.
4. The facts are within his knowledge as a person is not expected to comment or
react to matters about which he is ignorant.
5. The fact admitted or the inference drawn from the silence is material to the issue.
a). Thus the silence of a man caught in possession of stolen articles is not
admissible in a prosecution for physical injuries.
CONFESSIONS
B. Evidentiary value:
1. Confessions are admissible against the confessant. They are evidence of a high
order for the reason that no person in his right senses would admit his guilt or
participation in the commission of a crime, knowing that it would subject him to
punishment. He must be prompted by truth.
2. But for purposes of conviction, the confession must be corroborated by evidence
of corpus delicti (body of the crime) pursuant to Section 3 of Rule 133.
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a). Corpus delicti, or the fact that a crime was committed, has two elements: (i) an
injury or harm which was suffered by a person and (ii) the cause or origin thereof
must be criminal in nature
3. As to oral extra-judicial confessions, they afford no conclusive proof of that which
they state but merely present a prima facie case. It may still be proved they were
uttered/made in ignorance, or levity or mistake.
A. Judicial: when the accused pleads guilty during the arraignment, or when the
accused testifies and admits the offense.
a). The person may have been lawfully arrested by virtue of a warrant of arrest
b). The person was arrested lawfully without a warrant
c). The arrest is illegal
d). The person voluntarily surrendered
e). The rule applies whether or not a formal charge has already been filed in court,
or a crime is still being investigated and the person is merely a suspect.
A. That the confession must be voluntary i.e it was given freely, knowingly and
intelligently.
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2. The accused gave the confession of his own free will, with full understanding and
knowledge of its consequences and that he was not coerced, pressured, forced,
intimidated or improperly influenced, or subjected to third degree.
a). The force or intimidation need not be applied personally to the confessant but to
a third person so long as the purpose is to affect the will of the confessant and the
giving of the confession is the condition for the force to stop.
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1. The general rule is that the use of artifice, trickery or fraud in inducing a
confession will not alone render the confession inadmissible as evidence. For
examples: those obtained by detective posing as prisoners or obtained by promise
of secrecy and help to escape or by conversations between suspects and
undercover agents are admissible.
2. The Miranda rule does not apply because when a suspect considers himself in the
company of cell mates and not officers, the coercive atmosphere is lacking. Miranda
forbids coercion, not mere strategic deception by taking advantage of a suspects
misplaced trust in one he supposes to be a fellow prisoner.
3. But the rule is different when the suspect has already been indicted or arraigned.
A. The Massiah rule based in the case of Massiah vs. U.S. states that once
adversary proceedings have been commenced against an individual, he is entitled
to counsel and the government may not deliberately elicit incriminating
statements from him, neither openly by uniformed officers or by secret agents.
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c) Counsel refers to a competent, able and independent counsel; one who is vigilant
and aware of his responsibility as assisting counsel. He was either chosen by the
accused or provided him by friends or relatives, or one appointed by the court upon
Petition by the confessant or by one acting in his behalf
d). If counsel as provided by the investigating officer, the counsel shall be deemed
engaged by the confessant if he never raised any objection against the formers
appointment during the course of the investigation and thereafter subscribed to the
veracity of his statement before the administering officer.
4. It must be signed or thumb marked by him
1. Signed Receipts of Property Seized are in admissible unless the accused was
Mirandized. Under the 2002 Dangerous Drugs Law, the signing of the Inventory of
Seized Articles by the accused is expressly declared to be not admissible as
evidence against him.
2. Evidence based on re-enactments are also inadmissible unless the re-enactment
was with counsel or the right to counsel was properly waived.
3. Facts voluntarily divulged to the media are admissible as admissions unless the
media was in collusion with the police to elicit inculpatory/incriminatory statements,
in which case the constitutional warning should first be given before any interview;
or if the media was instructed to extract information as to the details of the crime.
See as Examples: PP s. Endeno (Feb. 20, 2001) and PP v.s Taboga (Feb. 6, 2002)
involving a taped confession sent to the media.
4. After the accused was properly informed of his rights, facts voluntarily divulged
by him without being asked, are admissible, unless these statements were the
result of some ploy or stratagem by the police, as in the case of the good cop-bad
cop approach.
5. However, even if the confession is inadmissible, still the evidence may be
admitted under other principles, notably: the doctrines of Inevitable Discovery;
Independent Source, and Attentuation.
V. PRESENTATION OF CONFESSION.
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1. Through the officer who took the confession who shall identify the confession, the
signature of the accused therein and his counsel if with the assistance of counsel,
and who shall testify as to the giving of the constitutional warnings, and that the
giving of the confession as voluntary.
a) The presumption of regularity in the performance of duty cannot be availed of to
assume the constitutional warnings were properly given.
2. Through the testimony of the person to whom the confession was handed, if it
was not taken b the police, or to whom the oral confession was made.
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A. As a rule the confession binds only the confessant following the Res Inter Alios
Acta Rule .
Section 34. Similar conduct as evidence- Evidence that one did or did not do a
certain thing at one time is not admissible to prove that he did or did not do the
same thing or similar thing at another time, but it may be received to prove a
specific intent, or knowledge, identity, plan, scheme, system, usage and the like.
I. This is the second part of the Res Inter Alios Acta Rule . The REASONS for the rule
are as follows:
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1. Past acts do not afford a logical guarantee that a person will or will not commit an
act in question due to changes in a mans lifestyle, habit, views, or in the
circumstances or conditions of his life.
2. Past acts are irrelevant as they merely confuse the issue and violate the right of a
person to be informed of what he is being charged of or made liable for.
3. There is the danger that a man may be convicted or declared liable by reason of
his dark or questionable past and not because he committed the present act.
4. There maybe a denial of due process.
II. EXCEPTIONS
2. In a murder case or death by secret mode, the fact that other mysterious deaths
involving previous wives of the accused who were all insured with the husband as
the beneficiary, is admissible, in the death of the present wife, also heavily insured
and where the husband is a suspect, to prove motive and intent to kill.
3. The previous act of feeding the substance to animals is admissible to prove the
accused knew the substance is poison and disprove his pretense of good faith. .
4. In an arson case, the previous acts of trying to burn the place, about which the
accused was sternly reprimanded, shows that this time, when the accused was
found placing, clothes soaked in gasoline near the house, his intent was really to
burn.
5. In a case for estafa for issuing a watered check, the prior acts of the accused in
requesting other persons to who checks against the same account were issued, that
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cases be not filed, show knowledge that the check he issued to the present
complainant was stale.
6. In an action based on negligence, the act of asking for a spare tire previously is
proof of knowledge of mechanical defects of the vehicle.
7. Note: under the Traffic Code, a previous violation for three times is evidence of
negligence.
1. Note: in solving a crime where there are no eye witness, the fact that a person
was found to be the author of previous crimes committed in the same manner as
the present, is admissible to prove he is the author of the present crime. Example:
Serial Killers, Akyat Bahay, the Ativan Gang
1. In estafa cases of illegal recruitment, the prior acts of advertising the opening of
an office to assist in visa applications, and thereafter absconding, is evidence of a
modus operandi or system of deceiving the unwary public.
2. Prior acts of using different names to different people from whom money is
borrowed and then unpaid, is admissible to prove a plan or design to of deception.
3. The prior acts of claiming to be a member of the staff of a certain politician and
asking for donation else the business papers will not be processed, shows a plan of
extortion.
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2. Thus wife battery requires a cycle and previous acts have to be proven.
3. To prove negligence, the fact that a driver almost always tries to beat the red
light is relevant.
4. To prove habituality or recidivism or habitual delinquency, previous acts are
required.
5. The habit of a businessman to always pay in check is proof he did not make a
purchase as no check was drawn or made in favor of the seller-complainant.
6. The custom of the operator of vans for hire to test the brakes before renting the
van is admissible to show the brakes were in facts tested and the van involve in the
accident was not suffering from any mechanical defect.
7. The habit of a passenger of clinging to the back (or top load) of a running jeepney
is admissible to show he was not the passenger/robber seated beside the victim at
the drivers side.
8. The habit of a woman to sit at the lap of customers is admissible to prove the
absence of force in a charge of acts of lasciviousness.
9. However, under the Rape Shield Law, the fact that the victim has had previous
sexual encounters is not admissible in a present charge for rape.
UNACCEPTED OFFER
I. INTRODUCTION
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A. Sources of What a Witness Testifies On. When a person testifies that a certain
event occurred or that a person did or did not do an act, his reasons or basis may
either be:
1. Facts based on his own personal knowledge or direct knowledge, such as when he
testifies to facts or events which he personally saw or in which he participated, or to
statements he personally heard.
2. Opinions, conclusions or estimations which the witness himself arrived at or
formed.
3. Matters relayed to him, or learned by him from third persons or acquired by from
sources outside of his own personal knowledge.
Testimony based on the first source is admissible so long as it is relevant and they
are what the rules desire to be testified upon. Testimony based on the second is
generally not admissible. Testimony based on the third source is generally
inadmissible and considered as hearsay.
A. In general, the term embraces all assertions of facts, whether in the form of oral
or written statements or conduct, the source of which cannot be subjected to the
opportunity for cross-examination by the adverse party at the trial in which the
statements are being offered against him.
1. The essence and test of what is hearsay is the fact that the source i.e. the
person who made the statement, can not be subjected to the opportunity for crossexamination. These two concepts can not be separated from one another.
2. The emphasis is on the opportunity to cross examine and not actual crossexamination because if there was opportunity to cross examine but it was not
actually exercised due to the fault or negligence of the adverse party, the evidence
is admissible.
B. The rule on hearsay is intended to satisfy the requirement of due process which is
that the adverse party has the right to confront the witnesses against him, to test
their credibility, the truth of their statements, their accuracy, or the reliability of the
evidence against him. This is through the process known as cross-examination. This
is why the rule on hearsay evidence can not be separated from the requirement of
due process.
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B. The first kind: Statements the Making of Which is the Very Fact in Issue. The
question before the court is: Was there such an oral or written
declaration/statement which was made? Was there such a conduct which was
done? or What was the statement or conduct made? What were the words uttered
or written?
C. Second Kind: Statements Which Are Circumstantial Evidence of the Facts In Issue
1. To show the state of mind, mental condition, belief, ill will or criminal intent of the
utterer/declarant
a). To prove insanity- I am God
b). Discernment on the part of a minor: he said Takbo na, Tago tayo
c). Evident Premeditation: May araw ka rin
f). Guilty knowledge: Dont tell anyone this money is fake, or it was stolen
g). Bias: I will stand by him no matter what. May pinagsamahan kami kasi
h). Ill-Will: I hope he dies. Ma fail ka sana
i). Anger, excitement, joy, elation, gratitude:
j). That Erap was resigned to giving up the presidency: Masakit, Ayoko na,
k).He was intoxicated
2. To prove the statement of mind of the hearer or third person or of the witness,
such that :
a). He was not attentive
b). He is bias
c). He did not understand or that he was mistaken
d). He was intoxicated
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A. This is what is covered by section 36 : A witness can testify only to those facts
which he knows of his own personal knowledge, that is, which are derived from his
own perception, except as otherwise provided in these rules.
B. Concept: A witness asserts something as true but his reason is the statement,
declaration or conduct of another. The witness merely repeats the declarations of
others, he heard (it) said, or his testimony is to a second hand information.
C. Illustrations:
1. Oral declarations or statements such as relying on news broadcasts, popular
opinions, what people think or believe.
2. Written statements such as Affidavits of third persons, news paper reports,
entries in the police blotter, medical reports, and any written account, report or
statement , which even if true, but the maker/author is not the witness testifying on
it.
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B. BASIS. These statements are essentially hearsay because the makers or authors
of these statements are not presented in court and are not subjected to the
opportunity for cross examination. They are however are admissible because of two
reasons: (1). The guarantee of trustworthiness or that they are presumed more
likely to be true than not and (2. Necessity in that the court has no option but to
accept them due to circumstances which exempt the authors from being personally
presented in court as witnesses.
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C. KINDS: They are those enumerated from section 37 to 47. The enumeration is
exclusive.
The general principle on which this species of evidence is admitted is that they are
declarations made in extremis, when the party is at the point of death and when
every hope of this world is gone, when every motive to falsehood is silenced, and
the mind is induced by the most powerful consideration to speak the truth; a
situation so solemn and so awful is considered by law as creating an obligation
equal to that which is created by a positive oath administered in a court of justice.
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2. Another basis for the presumed truthfulness is the fear if punishment in the after
life which may induce a person to speak the truth during his last moments. But the
fat that the declarant does not believe in an after-life of rewards and punishment
does not make his declarations less true.
1. The declarant is aware that his death is imminent or that his death is certain to
follow by reason of his wound. He knows, is aware and accepts that he may die at
any moment.
2. But it is not required that death should immediately follow for it may happen that
the victim dies after the lapse of hours or days. It may happen that his condition
improved but nevertheless he died after an interval of time. It is enough that when
he made the statement he believed he was about to die.
3. If he entertained some hope of recovering or of surviving his injury, his statement
will not constitute a dying declaration, but if later when his condition worsened, he
ratified his statement and thereafter died, then the statement ill be considered as a
dying declaration.
4. This requirement is present:
a). From the express declarations of the victim
b). Inferred or implied from his utterances or conduct, such as when he begged
forgiveness, asked for a priest to give him the last rites, asked a friend to watch
over his family.
c). Inferred from his conduct or reaction of acquiescence when it was communicated
to him that his condition is hopeless and he cried or his countenance changed.
d). Inferred from the actual character and seriousness of his wounds, which may
justify and acceptance of mortal danger. Example: when the victim pointed out his
assailant, he was in agony due to a mortal wound or was gasping for breath.
AND
SURROUNDING
1. The declaration must relate to the why, who, how, where and what, about his own
mortal wound. If it concerns the wound of another, it might be admissible under the
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2. Thus if before dying, the victim of a shooting incident told these statements to his
friend:. Pedro shot me and (b) he also shot Peter. (c). Tell my children that the son
of Maria is their half brother. Statement (a) is a dying declaration whereas
statement (b) would be admissible as part of the Res Gestae in the prosecution of
Pedro for shooting Peter. Statement (c) would be a declaration against interest in an
action against the estate of the victim by the illegitimate son.
3. There are two kinds of declarations which, even if they refer to the cause and
circumstances, are not admissible as dying declarations: (a) Those which are in the
nature of opinions or conclusions. Example: I believe Pedro was the one who shot
me. He is the only who wanted me killed, and (b) those which contain hearsay
information. Example: People say it was Pedro who shot me.
C. THE DECLARATION IS OFFERED IN A CASE WHERE THE SUBJECT OF INQUIRY IS
THE DEATH OF THE DECLARANT
1. The case may either be criminal or civil so long as the issue involves the death of
the declarant. If a criminal case, it may be for consummated Homicide, Murder or
Parricide, and it may be a simple or complex crime as for example Robbery with
Homicide, Rape with Homicide, Direct Assault with Homicide, or Multiple Homicide.
2. The civil cases include action for damages arising from the death of the
declarant, or claims for insurance.
1. Dying declarations stand in the same footing as testimony given in open court by
a witness. At the time of the dying declaration, the declarant has all the
qualifications as a witness and is not suffering from any physical or mental ground
for disqualification.
2. Thus if the declarant was at that time too drunk, under the influence of drug,
mentally insane, or an infant, his statements would not qualify as a dying
declaration.
E. THAT THE DECLARATION WAS MADE FREELY AND VOLUNTARILY AND WITHOUT
COERCION OR SUGGESTION OF IMPROPER INFLUENCE.
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A. They may be oral which maybe in the form of answers to questions asked, or
voluntary statements or utterances at the instance of the declarant. These may be
introduced through the testimony of the person to whom the oral declarations were
given or by one who heard them
B. They may be written either in a paper or other solid surface with the use of pen,
pencils or conventional writing materials, or with the use of any material by which
letters or written symbols are formed, such as blood, lipstick or sharp instrument.
The written declaration need not be signed by the declarant. These are introduced
by presenting the written declaration if physically possible, else reproductions
thereof may be used in substitution or their existence and contents maybe testified
to by witnesses
D. Where the declarations are in the form of answers to inquiries, there must be
observance of the Rule of Completeness: the declarations /statements or answers,
must be responsive to the question asked, is not vague or equivocal, such that it
provides a complete information to what is asked concerning the injuries of the
declarant.
A. Dying Declarations do not enjoy any advantage nor do they deserve higher
consideration over other evidence. They are not superior evidence. They are in the
same level as all other evidence hence:
1. They are subject to the same tests of credibility applied to all types of evidence.
2. The court has the discretion whether to accept or reject a dying declaration or to
give it value or not, and how much weight it will accord it.
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2. In admissions the admitter may be alive while the declarant must be dead or
unable to testify
3. The admitter is a party to a case while the declarant is not.
4. An admission is evidence only against the admitter save in case of vicarious
admissions and admissions by adoption whereas a declaration may be used as
evidence against strangers
5. An admission may be made at any time even during trial, while a declaration
must be made before the controversy arose.
1. Pecuniary: The declarations may defeat in whole or in part a money claim he has
against a person. Example: the heirs of a deceased sued X to collect from him the
supposed unpaid consideration of a lot sold by the deceased. X presents the best
friend of the deceased who testified that the deceased confided to him that
although no receipt was issued, X actually had already over paid.
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C. Moral:
a). The act of a one man showing he is the natural father of a child, is admissible in
a paternity suit against another man.
2. The declarant must have competent knowledge about the matter subject of his
declaration.
a). A person is presumed to know certain matters about himself such as financial
status, condition of his business affairs, his interest in certain properties, his
participation in an act, or in a crime.
b) Thus, in an action for money for services rendered, plaintiff presented a letter
written by the defendants son to the plaintiff stating that he knew his father owed
plaintiff for services rendered. It was shown that the son did not know the true
nature of the transaction between the plaintiff and his father- the defendant.
PEDIGREE
1. Descent: his paternity, or genealogy or family tree. Example: who were the
ancestors: the circumstances of their birth, marriage, death, who were legitimate
and who were not.
2. The circumstances of a persons own birth, marriage, death, legitimacy.
3. Descendants or issues if he has any including the circumstances of their birth,
marriage, death
4. Sibling, i.e. brothers or sisters, whether by blood or b affinity, whether full or half
blood, legitimate or illegitimate or by informal adoption, as well as circumstances of
their birth, marriage, death, families.
5. All facts concerning family history intimately connected with pedigree e.g. the
story that a brother was lost and presumed dead when in truth he was sent to an
institution due to his abnormality)
B. However if the foregoing are not available, proof consists of the presentation of a
witness who testifies to:
4. The declaration must have been ante litem motam ( before the controversy
arose) in order to ensure the declaration was not the result of bias or improper
motive.
5. The relationship between the declarant and the subject person must be
established by independent evidence independent of the declaration.
C. Examples
1. In the case of FPJ whose citizenship hinged on whether he was acknowledged by
the father, the court admitted an Affidavit of a sister leaving in California the
contents of which declared that FPJ was recognized by their father.
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2. Maria wants to inherit as full heir from Pedro. X testifies that Maria is the sister of
Ellen who is married to Juan, now dead. X presents a letter from Juan stating that
Maria and Ellen are half-sisters because the father of Maria is not Pedro but another
man.
3. AB is charged with parricide for killing X. A witness testifies that X is the
illegitimate child of AB per information coming from the deceased son of AB.
A. Concept: This refers to the knowledge or beliefs of a certain family handed from
one generation to another, or to practices or customs which are consistently
observed or engaged in by said family. A member of said family is the one testifying
to these matters.
B. Examples:
1. The practice of making offerings to a deceased person, burning of incense,
making of libations, visiting the grave, or including the name of a person in the
family prayers, are evidence the dead is related to the family.
2. The family belief by a family in Bontoc, Mt. Province, that their surname ANDAYA
was adopted by their grandfather in honor of a teacher from Tagudin, Ilocos Sur,
who took care of said grandfather.
3. Stories of a grandfather that he was born on the day Bataan fell to the Japanese,
or an uncle who, during the earthquake, went to the mountains and was probably
buried in a landslide.
4. Practice of a family of inviting an individual to clan/family reunions.
5. Belief of a family in Aringay, La Union that the grandfather of Noli de Castro left
that town in a particular year and migrated to Visayas
A. Entries may include the names, and date and place of births, marriages, death,
and other relevant data, about a relative, as well other important family occasions.
B. Other examples: pictures, portraits, baptismal certificates, the name and date
appearing in wedding rings, family tree charts
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1. Matters of public interests more than 30 years old or those affecting the people
as a whole and matters of general interest or those affecting the inhabitants of a
town, province, or barangay. (Localized matters)
a). They must affect the community as a whole and not just certain groups
b). Examples: boundaries of lands, existence of a road, a waterway or irrigation
canals; that a private right exists in a public land, the reputation of a certain area as
the :red district; the birth of a town or barangay, how a town or city got its name,
that a land has long been regarded as a communal land.
c). It can not be used however to establish ownership over private lands.
d). Proof of common reputation:
(i). Through the testimony of persons who are in a position to know the public or
general interest. He may testify thus: The old folks told us the land has always
been regarded as communal
(ii). By monuments, and inscriptions such as old road/streets signs; old maps and
old surveys
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I. RULE: Section 42: Part of the res gestae- Statements made while a startling
occurrence is taking place or immediately thereafter, or subsequent thereto, with
respect to the circumstances thereof, may be given in evidence as part of the res
gestae. So also, statements accompanying an equivocal act and material to the
issue, and giving it legal significance, may be received as part of the res getae.
II. CONCEPT.
1. Res gestae literally means things done. It refers to an event, an occurrence, a
transaction, whether due to the intentional or negligent acts of a person, or an
accident, or due to the action of nature. All these events are set in a frame of
surrounding circumstances which serve to emphasize the event or to make it
standout and appear clear and strong.
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for cross-examination and what they declared, uttered or stated, or exclaimed are
repeated by the witnesses who heard them.
3. They are the events speaking for themselves thought the instinctive and
spontaneous words or acts of the persons involved or present thereat.
III. CLASSIFICATION.
1. The time which elapsed between the occurrence and the making of the
statement. The declaration should not have been made after a period of time where
it is possible for a person to reflect, analyze, and reason out. There is no yardstick to
measure the time which elapsed although the time must not of such length so that
the declarant can be said to be still under nervous excitement.
a). The utterance by a rape victim soon after being rescued is spontaneous
2. The place where the statement was made in that whether it was within the
immediate vicinity or situs of the event or some distance away.
3. The condition of the declarant at the time he made the statement- whether he
was in a cool demeanor so that he could have carefully chosen his words, or he is
still in a state of nervous excitement. If as a victim, his groans are indicative he is
still under the influence of the event.
4. The presence or absence of any intervening circumstance between the event and
the making of the statements such as those which may have diverted a persons
mind and restored his mental balance, or which in any manner might have affected
his statement.
Examples:
a). In a collision, a driver notices that several passengers are mortally injured,
whereupon he exclaims: That bus was too fast.
b). The arrival of the friends of the victim prompted him to shout, he, he is the one
who mauled us for no reason.
c). A person lost consciousness and then recovers whereupon he shouts: Juan, have
mercy
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5. The nature and circumstances of the occurrence itself in that it must really be
serious and capable of producing lasting effect.
1. When a statement does not qualify as a dying declaration for failure to comply
with the requirements the latter, it may however be admitted as part of the res
getae. This is under the principle of multiple admissibility. This occurs: a) when the
victim survives b). there was no consciousness of impending death c). when the
statement relates to the injury of another and not the declarant.
2. Example: The victim said: Pedro shot me. He also shot Juan. The first is a dying
declaration if the victim dies, otherwise as part of the res gestae. The second is
admissible as part of the res gestae in a case involving Pedro for shooting Juan.
D. Illustrations
B. REQUIREMENTS:
1. There must be an act:
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a). which is equivocal or one susceptible to different meanings such as : (i) the act
of handing money to another (ii) the act of chopping down a tree on a piece of land
(iii) the act of building a fence.
b). The act may be a continuing act or that which takes place within a span of time
such as the regular deposit of money in the account of another for a year
c). There are however certain acts which the law considers as self-explanatory (res
ipsa loquitor) such as criminal acts of lasciviousness, injuring or killing another.
2. The oral statement must explain the act. Thus the act of handing over money to
another was accompanied by the statements: here is payment of my debt, go
buy yourself lunch. The man chopping a tree exclaimed; This land is mine,
indicating an assertion of ownership.
3. The act is relevant to the issue. Example: In a prosecution for violation of the Anti
Fencing Law, where the accused was seen receiving the cellphone, this statement of
the giver is admissible: Itago mo yan at huwag na huwag mong ipakita kahit
kanino
4. The statement is contemporaneous with the act in that it was made at the time
and place of the act and not afterwards.
I. RULE: Sec. 43. Entries made at, or near the transaction to which they refer, by a
person deceased, outside of the Philippines, or unable to testify, who was in a
position to know the facts therein stated, may be received as prima facie evidence,
if such person made the entries in his professional capacity or in the performance
of duty and in the regular course of business or duty.
III. REQUIREMENTS
IV. EXAMPLES:
I.
II. TN> nuut
ENTRIES IN OFFICIAL RECORDS.
I. RULE: Sec. 44. Entries in official records made in the performance of his duty by a
public officer of the Philippines or by a person in the performance of a duty specially
enjoined by law are prima facie evidence of the facts therein stated.
The situation concerns facts about which a public officer has to testify on, but in lieu
of his personal testimony, the official document prepared or kept by him are instead
presented to the court.
d). In the publicity of the record, which makes more likely the prior exposure of
errors and their consequent correction
A. The person who made the entry must be a public officer, or by another especially
enjoined by law
B. The making must be in the performance of the officers duty or in the
performance of a duty especially enjoined by law
1. The keeping of the record must be due to any of the following reasons:
b). The nature of his work requires the keeping of records i.e the records are
convenient and very appropriate modes of discharging the officers duty.
Examples: (i).The List of those applying for a Prosecutors Clearance (ii).The Visitors
Log Book of the Jail Warden (iii).Record of Cases heard by the Barangay
Police Blotter
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c). The record is required by a superior. Example: The record of the whereabouts of
employees
C.. The officer must have sufficient knowledge of the facts recorded by him acquired
personally or through official information ( Personal or official knowledge)
1. Official knowledge: the facts were supplied by subordinates who have personal
knowledge of the facts and whose duty involves ascertainment of such facts
2. Examples: (i). Tax Declarations signed by the Assessor (ii) Building Permit by the
City Engineer (iii) Birth/Death Certificate issued by the Local Civil Registrar
IV. Probative Value: The entries are merely prima facie evidence of the facts stated
and may be rebutted or nullified but if the entry is of a fact, but not to those made
in excess of official duty, or those not required to be recorded.
Concept: This refers to journals, list, magazines, and other publications and similar
written or published works carefully researched an investigated and especially
prepared for sue in certain trades, industry or profession, or even by the public,
which rely on them.
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Legal Profession: the SCRA though published by a private entity for profit i.e the
Central Lawbook Publishing Co.
Banks and financial institutions rely on the FOREX
Insurance Companies rely on the Actuarial and Mortality Tables
The public on Business Phone Directories
Result of Stock Transactions/Exchanges
Census Reports
Price Index of minerals, metals
But not tourist guide brochures
9. Calendars
III. Examples:
1. Textbooks in history such as Gibbons The Rise and Fall of the Roman Empire,
books on Philippine History by Agoncillo and Constantino
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II. Requirements
A. The witness is dead or unable to testify. The witness may be suffering from illness
or from a mental disqualification such as having become insane or loss of memory
due to age. His whereabouts is unknown despite diligent efforts to locate him or he
was prevented by a party from appearing as witness, either by force or by deceit or
by persuasion. It does not cover a situation where the witness refuses to come to
court.
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B. Identity of the parties. This may refer to identical parties or the parties are their
successor in interest or representatives
C. Identity of issues. The issue or matter, in which the testimony of the witness is
sought is common to both cases, even if there are other issues involved or that the
form of action is different
Examples of cases where there is a common issue: (i) ejectment and recovery of
right of ownership as both would involve the question of who has physical
possession (ii) an action for damages based on an act or omission which was the
subject of a prior criminal case such as killing, slander or libel or estafa.
1. If the opponent, through his act or negligence, did not cross examine, or lost the
right, the rule still applies. Example: the defendant was declared in default and
plaintiff then presented evidence ex parte
2. Thus if the proceedings in the prior administrative cases was summary and not
adversarial/confrontational but was decided based on affidavits and position papers,
the rule does not apply
III. How to present: Present the Transcript of Testimony which the parties may
stipulate on.
OPINION EVIDENCE
Sec. 48. General Rule. The opinion of a witness is not admissible except as indicated
in the rules.
A. The making of an opinion is the [proper function of the court. The witness is
supply the facts and for the court to form an opinion based on these facts.
B. Opinions are not reliable because they are often influenced by his own personal
bias, ignorance, disregard of truth, socio-cultural background, or religion, and
similar personal factors. Thus there maybe as many diverse opinions as there are
witnesses.
C. The admission of opinions as evidence would open the floodgate to the
presentation of witnesses testifying on their opinion and not on facts.
EXPERT OPINION
Sec. 49. Opinion of an expert- The opinion of a witness on a matter requiring special
knowledge, skill, experience or training, which he is shown to possess, maybe
received in evidence.
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A. The subject of inquiry requires the opinion of an expert, or that the fact in issue
requires the opinion of an expert.
1. The use of an expert is becoming more frequent in order to explain how and why
things happened the way they did or didnt happen the way they were supposed to,
as in the following cases:
a). In personal injury cases where physicians or surgeons are needed to prove the
cause and effect of certain injuries, so also economist as to the amount of income
which was lost
b). Products liability cases where there is need for reconstruction experts to prove
the defects in a certain products. Such as a car accident being due to factory
defects in the wheel, or a mechanical defect attributable to the manufacturer
c). Actions relating to constructions where there is need for engineers and architects
as injury to a bridge which collapsed, or breach of contract in that the building was
constructed poorly
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1. By asking the adverse party to admit and stipulate that the witness is an expert.
This is where the witness regularly appears in court as an expert and is familiar to
the court, or where the witness occupies a position requiring certain knowledge or
skill, as a medico legal officer.
2. Through the process known as Qualifying the Expert- propounding questions to
the witness concerning his background and eliciting answers from the witness
showing he possesses special knowledge or skill on the matter on which he is to
testify
3. If the expertise is not admitted and the witness is not properly qualified, he is to
be regarded as an ordinary witness and may be objected in giving an opinion
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2. Show the specific professional background. Questions asked are directed to bring
out answers to the specific facts or skills such as (a) special trainings undergone (b)
publications authored (c) membership in professional associations (d) as lecturer or
speaker or resource person (e) how often he was called as a witness and (f)
particular work experience which bear directly on the situation about which he is
testifying
1. Facts personally known to the expert or about which he has first hand knowledge.
2. Opinion maybe based on facts about which he has no personal knowledge or first
hand knowledge, but are based either (i) on the report or facts as found by another
expert who had first hand knowledge, provided the report is not hearsay or that the
other expert had testified and subjected to the opportunity for cross-examination or
(ii) on facts already testified to by witnesses and established by the records of the
case
B. Manner of Questioning
1. Where the basis are facts personally known to the expert, these facts must first
be elicited from the witness after he may be asked directly whether he has any
opinion about them and to state what his opinion is.
Example: The medico legal officer who conducted the autopsy will first be asked to
state his findings as to the nature, number, location, description, depth, trajectory,
etc, of the wounds of the victim after which he is asked to state his opinion as to the
cause, weapon used, position of the victim and assailant, cause of the death, etc..
2. By the use of Hypothetical Questions when the opinion is based on facts not
personally known to the witness.
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a). It is a question which, for purposes of the answer, assumes certain facts which
have counter parts in the evidence, and asks the witness to give an opinion as to
certain matters based on these facts. Since the witness has no personal knowledge
of these facts, he is told these facts and then is asked to assume the facts to be
true, and finally to give an opinion.
b). The question must incorporate or refer accurately to all the relevant facts- as
proven- as basis for asking the opinion
c). In case of physicians, the phraseology is usually thus: Assuming all these facts
to be true within a reasonable degree of medical certainty, what might have
caused the injuries?
3. The expert may asked to state that his opinion is supported by learned treaties or
shared by others in his class
a). The qualification of witness : (i) The degree of learning and academic
background (ii) The experience, professional standing and training, or his being
abreast with the latest developments
b). The reliability of the opinion: (i) The relative objectivity of the witness such as
the presence or absence of personal or professional bias or motive and (ii) the
degree of concordance of his opinion with the facts proven or the basis and logic of
his conclusions
A. Qualifications:
Licensed: where and when
Education and training: college/medical school-when-degree-internship-residency
Specialty training-specialty boards-requirements
Hospital staff membership
Teaching positions
Publications and lectures
Medical Society memberships
Other honors
Previously testified as an expert
B. Experience
Description of practice
Number of patients
Examination of similar types
Experience with x-rays, lab test, etc
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C. Examination of Patient
LAY OPINION
Sec. 50. Opinion of ordinary witnesses- The opinion of a witness for which proper
basis is given, may be received in evidence regarding(a) The identity of a person about whom he has adequate knowledge
(b) A handwriting with which he has sufficient familiarity
(c) The mental sanity of a person with whom he is sufficiently acquainted.
The witness may also testify on his impressions of the emotion, behavior,
conditions or appearance of a person.
I. Opinion on the identity of a person. Where the issue is whether a particular person
is involved in an event. As for example: 1). the accused sets up alibi or defense of
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mistaken identity; 2). in claims for insurance, determining whether a body is that of
the insured 3). determining who be the victims
b). The witness degree of attention at that time: to what or who was he focused on,
as well as the presence of distractions
c). The accuracy and consistency of any prior descriptions by the witness
d). The level of certainty demonstrated by the witness at the time of the
identification. Example: the reaction of a victim upon seeing the suspect
e). The length of time between the time of the occurrence and the time of the
identification
f). The suggestiveness of the identification process.
a) By the fact that he has seen writing purporting to be that of the other person
upon which he has acted or been charged. Example: persons in receipt of demand
letters, notices, purchase orders, letters of inquiry, directive, memorandum, letters
of authority
b) Familiarity has been acquired due to close personal, business, social or
professional relations which include the regular receipt, sending and reading of
mutual written hand-written communications between the witness and the other
person. Examples are (i) Personal or social relations such as pen-pals, spouses,
lovers, classmates (ii) Business such as between the employee such as secretary
and employer, teacher and student
Note: Familiarity with signature is not necessarily familiarity with handwriting and
vice-versa. ( The application of section 50 may be lessened due to increasing
frequency of communications by e-mail, or machine prepared communications, and
other modern gadgets.)
Criteria to determine forgery or falsification: per Ladignon vs. CA ( 390 Phil. 1161 as
reiterate din Rivera vs. Turiano ( March 7, 2007)
The process of identification must include not only the material differences between
or among the signatures/handwritings but a showing of the following:
(i) the determination of the extent, kind and significance of the resemblance and
variation ( of the handwriting or signature)
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(ii) that the variation is due to the operation of a different personality and not
merely an expected and inevitable variation found in the genuine writing of the
same writer
(iii) that the resemblance is a result more or less of a skillful imitation and not
merely a habitual and characteristic resemblance which normally appears in
genuine handwriting
There are two instances when an ordinary person may testify on the mental sanity
or state of mind of a person:
1. Under the Civil Code it permits the opinion of a subscribing witness to a writing
the validity of which is in dispute in that the sanity or state of mind of a party
thereto is put in issue. Examples: (a). An attesting witness to a will may give his
opinion on whether the testator was of sound and disposing mind (b) A subscribing
witness to a contract may give his opinion that the party was fully conscious and
aware of the nature of his acts
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As a general rule, the age of person maybe established by: (a) the record of
birth (b) Opinion of an expert (c) Opinion of an ordinary witness who is acquainted
with the person whose age is in question, such as a relative, a contemporary,
persons in the know in the community where he lives, as well as (d) Family tradition,
entries in family records
CHARACTER EVIDENCE
1. Character is the sum total of all the traits of a person which distinguishes the
person from others. They include the physical, mental, emotional and psychological
attributes of a person. These maybe genetically acquired, or inherited or in-born,
such as a persons sex, height, physical appearance. Or they may be acquired and
developed such as personality and behavioral characteristics due to virtues or vices,
such as being bad, immoral, honest, lazy, anti-social or friendly.
Character is what a person truly is.
IV. Coverage of the Rule. Where the rule allows the introduction of character
evidence, it is understood to be limited to MORAL CHARACTER, the possession by a
person of the qualities of mind and morals distinguishing him from others. This is
limited to:
1. Good Moral Character which includes all the elements necessary to make up such
a character as honesty, veracity in all professional, business, commercial
intercourse or dealings of a person; the virtue of chastity, or those character which
measures up as good among people, or that which makes a person look upon as
being up to the standards of good behavior and upright conduct.
2. Bad Moral Character or those which defines a persons tendency to be of loose
morals, evil, to be violent, dishonest, to disregard law and authority and the welfare
of the community
b) The moral character must be one in existence at the time of the commission of
the crime
c). evidentiary value. Evidence of good moral character is not a basis for acquittal.
(i) It serves only as a positive defense because I affords a presumption against the
commission of a crime in that, it is improbable that a person who has uniformly
pursued an honest and upright course of conduct will depart from it. (ii) It is to be
regarded only as circumstantial evidence of innocence as its role is to provide a
basis for the court to doubt his guilt.
d). Where the crime is one of great or atrocious nature or criminality, or the so
called heinous crimes, evidence of good moral character is of little weight, as for
instance in multiple murder
e). The Prosecution may not immediately introduce evidence of the bad moral
character because: (i) it is to avoid undue prejudice on the part of the judge due to
the deep tendency to punish not because the accused is guilty but because of his
bad character and (ii) to avoid confusing the issues
(Ans). 1. Pursuant to section 51, only in rebuttal provided the accused introduced
evidence of his own good moral character during the presentation of his evidencein-chief. This is to prevent the accused from having a free hand and fabricating
evidenced of his good moral character without fear of contradiction.
2. Pursuant to the Rule on Cross-Examination, if the accused testifies in his
own behalf, the prosecution may prove his band character as a witness i.e. his
veracity for truth is bad
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2. The Moral Character of the Victim may be proved if it tends to establish in any
reasonable degree the probability or improbability of the offense charged
a). The Prosecution may immediately introduce evidence of the good moral
character of the victim if:
(i). If it is an element of the offense charged, such as good reputation in case of
seduction, or in libel and oral defamation
(ii) It proves the probability of the offense charged as in sex crimes such that the
victim could not have given consent due to her good moral character
b). The accused may prove the bad moral character of the victim in the following
cases
(i). In assault or homicide cases where he sets self-defense, or in cases of the
Battered Wife Syndrome defense, the accused may prove the victim is of a violent
character, quarrelsome, trouble seeker or pugnacious.
This is to prove it was the victim who was the aggressor. Likewise to show the state
of mind of the accused in that bad character of the victim produced a reasonable
belief of imminent danger on the mind of the accused and a justifiable conviction
that a prompt action was necessary.
(ii) In sex crimes involving unchaste acts of the accused, where the willingness of
the woman is material, her character as to her chastity is admissible to show
whether or not she consented to the mans acts
(iii) In murder an in other heinous crimes, evidence of the bad moral character of
the victim is irrelevant
1. Evidence of the character of the parties is not admissible unless the issue
involved is character i.e. character is of particular importance in the case, or that
the good or bad moral character of a party will affect the outcome of the case.
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a). Action for damages for injury to plaintiffs reputation as in libel cases
b). Actions which impute moral turpitude such as the employment of deceit,
misrepresentation or fraud
c). Actions for damages due to seduction
d). Legal separation or annulment of marriage based on reasons grounded on the
character of the spouses, such as psychological incapacity
e). Action for damages for breach of promise to marry where the bad character of
plaintiff maybe used as a defense
f). As a defense in actions for Alienation of Affection
g). In actions involving custody of children
h). Opposition to the appointment of a guardian, or administrator of the property of
another
1. The witness enjoys the presumption of good moral character hence it is not
necessary to introduce evidence thereof
2. However, evidence thereof is necessary in order to rehabilitate the character of
the witness if the same had been impugned by the adverse party
3. The bad moral character as witness, his tendency to lie or improper motives may
be shown by the adverse party
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A. Each Party Must Prove His Own Allegation. Allegations in pleadings do not prove
themselves. No party wins by having the most allegations, or that the allegation of
causes of actions or defenses are crafted in the strongest and most persuasive
language. All allegations remain but as allegations or propositions. Hence every
party to a case, who desires that a favorable judgment be rendered in his favor,
must present evidence to support his claim, cause of action or defense be it in the
form of object evidence, documents, or testimonies of witnesses.
Likewise, the court limits itself to only such evidence as were properly presented
and admitted during the trial and does not consider matters or facts outside the
court.
B. A Party Can Not Prove What He Did Not Allege (Non Alegata Non Proba). A party
however is not authorized to introduce evidence on matters which he never alleged.
Hence plaintiff will not be permitted to prove a cause of action which is not stated in
his complaint, and the defendant will not be permitted to prove a defense which he
never raised in his Answer. In criminal cases, the Prosecution is not permitted to
prove a crime not described in the Information or to prove any aggravating
circumstance not alleged in the Information.
C. But a party may be relieved from presenting evidence on certain matters, such
as on the following:
JUDICIAL NOTICE.
I. CONCEPT: Refers to the act of the court in taking cognizance of matters as true or
as existing without need of the introduction of evidence, or the authority of the
court to accept certain matters as facts even if no evidence of their existence has
been presented. The action is often expressed thus The court takes judicial notice
of
II. Purpose: To save time, labor and expenses. It is based on expediency and
convenience.
A. Adjudicative Matters- those facts related to the case under consideration and
which may affect the outcome thereof.
1. In a case where the accused set up denial and alibi being then in Manila, court
may take judicial notice that normal travel time by bus from Manila to Baguio City
is between 6 to 7 hours
2. Where the accused set up accidental shooting, the court may take notice that a
revolver does not fire accidentally because pressure must be applied to the trigger
3. Where a witness claimed to have seen a person by the light of day at around 6:00
PM on December some 10 meters away, courts may take notice of the shortened
days in December and that by 6:30 there is no more day light.
B. Legislative Matters- those facts which relate either to: (i) the existence of a law or
legal principle (ii) the reason, purpose or philosophy behind the law or of a legal
principle as formulated by the legislature or the court (iii) the law or principle itself.
1. The need to protect Filipino OFWs as a primary reason behind the Migrant
Workers Act or the increase in the incidence of drug related crimes as reason for the
increase in the penalty for violation of the drug law
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2. That the passage of the Anti Terrorism Law and the Anti-Money Laundering Law
were influenced by the demands of the international community
3. Taking notice of the increase in the age of criminal liability
4. That documents presented in the Register of Deeds are recorded according to the
date and time of their presentation
5. The policy of the law as regards bail in heinous crimes or of the policy of the state
against the use of illegal means to obtain evidence
6. Gun Ban during election period
IV. Limitations. The taking of judicial notice maybe abused and might unfairly favor
a party who is unable to prove a material point. Conversely the non-taking notice of
a fact might unduly burden a party where proof is not readily available or impossible
to obtain and proof thereof is unnecessary, but still the court refuses to take notice
of the fact.
A. As to what may be taken notice of: the matter must be one covered by section 1
or is authorized under Section 2 of Rule 129.
B. As to the procedure: there must be a prior hearing pursuant to Section 3.
INTRODUCTION: If a fact falls under any of the matters enumerated, then the court
may not compel a party to present evidence thereon and necessarily, it may not
decide against the party for the latters failure to present evidence on the matter.
The enumeration is exclusive.
II. The Law of Nations: the body of principles, usages, customs and unwritten
precepts observed by, and which governs, the relations between and among states.
A. Examples: (i). The Principle of Equality of States (ii) Sovereign Immunity of
visiting Heads of States and the protocol observed for said visiting dignitary such as
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the 21
gun salute (iii) The Diplomatic Immunity of foreign
representatives (iv) recognition of piracy as a crime against humanity
diplomatic
III. The Admiralty and Maritime Jurisdiction of the World and their Seals
A. Its constitution and political history: the political set up of the government
1. As a Spanish colony, American colony, as a commonwealth, as a republic; Martial
law years; the political upheavals such as the assassination of B. Aquino, EDSA I and
II
2. The cabinet system in the Office of the President
3. Previous Presidents; the trial and conviction of Erap and his subsequent pardon
4. The administrative division into regions, provinces, municipalities, cities,
barangays and into sitios or puroks
5. Manila as the capital and the capital towns of the provinces; the location of
major rivers, lakes and mountains
6. Contemporary political developments such as the ongoing communist rebellion
and muslin secessionist movement
7. Wars in which the Philippines participated
1. laws relating to science which are so well known such as that the DNA of each
person being distinct, or blood groupings as proof of filiation; or of finger prints and
dententures being distinct and dissimilar from one person to another.
2. The law of gravity, mathematical equations, weights and measurements
3. The solar system, the planets and stars
4. The composition and decay of matter
5. The birth and period of gestation of human beings
6. The occurrence of natural phenomenon provided these are constant, immutable
and certain, otherwise these occurrences are freaks of nature
a). the changing of the season
b). the cycle of day and night
c). the difference in time between places on earth
d). the variation in vegetation
VI. Measures of Time: into seconds, minutes, days, weeks months and years
VII. Geographical Division of the World such as the number and location of the
continents, and the major oceans, the division into hemispheres; longitudes and
latitudes
I. This section authorizes a court to take judicial notice of certain matters in its
discretion. The matters fall into three groups: 1. Those which are of public
knowledge 2. Those which are capable of unquestionable demonstration and 3.
Matters ought to be known to judges because of their judicial functions.
A. These are matters the truth or existence of which are accepted by the public
without qualification, condition or contention.
B. Requirements:
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1. Notoriety of the Facts in that the facts are well and publicly known. The existence
should not be known only to a certain portion of the community
2. The matter must be well and authoritatively settled and not doubtful or uncertain
3. The matter must be within the limits of the territorial jurisdiction of the court
C. Examples:
1. The existence and location of hospitals, public buildings, plazas and markets,
schools and universities, main thoroughfares, parks, rivers and lakes
2. Facts of local history and contemporary developments including political matters.
For example: the creation of the city or town, previous and present political leaders
or officials; the increase in population; traffic congestion in main streets. The
existence and location of the PMA in Baguio City
A. These are matters which, even if not notorious, can be immediately shown to
exist or be true so as to justify dispensing with actual proof.
B. Examples:
1.
2.
3.
Striking the body with a sharp instruments results to rupturing the skin and to
bleeding
4.
5.
6.
Vehicles running at top speed do not immediately stop even when the brakes
are applied and will leave skid marks on the road
IV. Third Group: Matters Ought To Be Known to Judges because of their Judicial
Functions
A. These are matters which pertain to the office of the Judge or known to them
based on their experience as judges
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B. Examples:
1. The behavior of people to being witnesses such as their reluctance to be involved
in cases thus requiring the issuance of subpoenae to them; the varied reaction of
people to similar events
2. Procedures in the reduction of bail bonds
V. Principles Involved
A. The matter need not be personally known to the judge in order to be taken
judicial notice of, as in fact the judge maybe personally ignorant thereof
B. Personal knowledge by the Judge of a fact is not necessarily knowledge by the
Court as to be the basis of a judicial notice
C. As to whether a party can introduce contrary proof: (1). If the matter is one
subject of mandatory judicial notice, contrary proof is not allowed (2). If the matter
is one which the court is allowed to take notice in its discretion, the prohibition
applies to civil cases only, but in criminal cases, the accused may still introduce
contrary proof as part of his right to defend himself.
A. As To Foreign Laws.
1. As a general rule, Philippine Courts cannot take judicial notice of the existence
and provisions/contents of a foreign law, which matters must be alleged and proven
as a fact. If the existence and provisions/contents were not properly pleaded and
proven, the Principle of Processual Presumption applies i.e. the foreign law will be
presumed to be the same as Philippine Laws and it will be Philippine Laws which will
be applied to the case.
c. The foreign law has been previously applied in the Philippines e.g. the Spanish
Codigo Penal
d. The foreign law is the source of the Philippine Law e.g. the California Law on
Insurance, the Spanish Civil Code
e. When the foreign law is a treaty in which the Philippines is a signatory it being
part of the Public International Law
C. Decisions of Courts
a).. As a general rule, courts are not authorized to take judicial notice of the
contents of records of other cases tried or pending in the same court, even when
these cases were heard or actually pending before the same judge.
b). However, this rule admits of exceptions, (i). as when reference to such records is
sufficiently made without objection from the opposing parties Reference is by name
and number or in some other manner by which it is sufficiently designated or (ii)
when the original record of the former case or any part of it, is actually withdrawn
from the archives by the courts direction, at the request or with the consent of the
parties, and admitted as part of the records of the case then pending (Calamba
Steel Center Inc. vs. Commissioner of Internal Revenue. April 28, 2005)
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E. Customs, Habits and Practices of People: Notice may be taken only of those which
are generally known and established and uniformly acted upon. Particular customs,
and those peculiar only to certain people must be established as a fact. Examples:
1. Variations in handwriting
2. The instinct of self preservation
3. Sleeping habits of people in the barrios
4. Rituals digging and cleansing of bones of buried loved ones among certain tribes
and other tribal practices, must be proved as a fact
5. What about the natural shyness of the Filipina woman?
F. As to religious matters: Courts may take notice of the general tenets or beliefs of
a particular group including their organizational structures, but not as to specific
practices, tenets and dogmas. Examples:
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1.Thus notice maybe taken of the belief Catholics consider Jesus as God, whereas
the INC do not but as a man, and the Muslims regard Him merely as a prophet
lesser in stature to Mohammed
2. That the Pope is the titular head of the Catholic Church while the Dalai Llama is
head of the Tibetan Monks; Mecca is the Holiest City of the Muslims; the Muslim
belief in Ramadan; the belief in reincarnation among the Hindus and Buddhists
while the Christians believe in resurrection after death; whereas Christians believe
in heaven the Buddhist have their Nirvana. Notice is proper of the Christian Bible
and the Muslim Koran as their respective Holy Books.
JUDICIAL ADMISSIONS
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A. Judicial- those made in the course of the proceedings of the case in which they
are to be used as evidence. This is governed by section 4.
B. Extra-Judicial- those made elsewhere but not in the course of the proceedings
where they are to be used as evidence.
1.The exception is found only in those rare instances when the trial court, in the
exercise of its discretion and because of strong reasons to support its stand, may
relieve a party from the consequences of his admission
2. All such evidence to the contrary are to be disregarded by the court even in the
absence of an objection by the adverse party.
3. Examples:
a). The rule on judicial admissions found its way into black-letter law only in 1964
but its content is supplied by case law much older and in many instances more
explicit than the present codal provision. In the early case of Irlanda vs. Pitarque
(1918) this court laid down the doctrine that acts or facts admitted does not require
proof and cannot be contradicted unless it can be shown that the admission was
made through palpable mistake. The rule was more forcibly stated in the 1918
decision in Ramirez vs. Orientalist Co. an admission made in a pleading cannot be
controverted by the party making such admission, and all proof submitted by him
contrary thereto or inconsistent therewith should simply be ignored by the court,
whether objection was interposed by the opposite party or not (Heirs of Clemenia
vs. Heirs of Bien, 501 SCRA 405)
The spouses Telesforo and Cecilia Alfelor died leaving behind several heirs. One of
the children was Jose who himself died leaving behind children and a wife named
Teresita . In1998 the heirs filed a complaint for partition of the estate of their
deceased parents. A certain Hosefina Halaan filed a Motion for Intervention claiming
she is the legal wife of Jose. Teresita and the other petitioners filed a Reply in
Intervention where Teresita stated she knew of the previous marriage of Jose; that
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Hosefina left Jose in 1959 and there had been no news of her since then; that Jose
revealed he did not annul his marriage to Hosefina because he believed in good
faith to Hosefina. During the hearing of the Motion for Intervention, Teresita
admitted several times she knew of the previous marriage of Jose to Hosefina. Since
Hosefina did not appear during the hearing to support her claim, of being the first
wife her motion was denied.
Issue: Was there need to prove the existence of the first marriage?
Held: No. The admission in the Reply in Intervention and the testimony of Teresita as
to the previous marriage qualifies as a Judicial Admission.
A party who judicially admits a fact cannot later challenge that fact as judicial
admissions are waiver of proof; production of evidence is dispensed with. A judicial
admission also removes an admitted fact from the field of controversy.
Consequently, an admission made in the pleading cannot be controverted by the
party making such admissions and are conclusive as to that party, and all proof to
the contrary or inconsistent therewith should be ignored, whether objection is
interposed by the party or not. The allegation statements or admissions are
conclusive against the pleader. A party cannot subsequently take a position contrary
to or inconsistent with what was pleaded.
B. Upon the opposite party: He need not introduce any evidence on the matter
which was admitted.
A. Voluntary Admissions
a. In a civil case: The plaintiff is bound by the statement of causes of actions in his
Complaint including the number, nature and circumstances thereof, as well as the
statement of facts in support thereof. The defendant is bound by the facts alleged in
the Complaint which he expressly admits in his Answer; by his own statement of
facts; by the nature, number and circumstances of the defenses contained in his
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Answer. They are similar bound by the allegations of facts in their Reply, Comment
or Rejoinder to each others pleadings.
b. As to amended pleadings: one view holds that the original pleadings ceased to be
part of the records and cease to be judicial admissions. If at all they may constitute
extra-judicial admissions which will have to be formally offered in evidence. Another
view, as that of Justice F. Regallado says amended pleadings are still covered by
section 4.
c. In a criminal case, the narration of facts in the body of the Information are
deemed admissions by the Prosecution
2. Admissions and Stipulations made during the Preliminary Conference and/or PreTrial which are reduced into writing and signed by the party and his counsel.
3. Admissions and stipulations made during the course of the trial itself, which need
not be reduced in writing
4. Compromise agreements, which thus can be the basis of a judgment which is
immediately executory.
5. Admissions by way of responses or answers to requests for admissions or
interrogatories pursuant to Rule 26 (Modes of Discovery)
B. Involuntary Admissions: those where it is the law which declares that a party is
deemed to have admitted a fact.
1. Section 8 of Rule 8 directs that (a) failure to specifically under oath an actionable
document is an admission of its genuiness and due execution (b) failure to deny the
material averments of the Complaint is an admission of the truth thereof
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I. Introduction.
A. Admissibility- the character or quality which any material must necessarily
possess for it to be accepted and allowed to be presented or introduced as
evidence in court. It answers the question: should the court allow the material to be
used as evidence by the party?
A. RELEVANCY (None but facts having rational probative value are admissible). Per
section 4, Evidence must have such a relation to the fact in issue as to induce
belief in its existence or non-existence.
1. The material presented as evidence must affect the issue or question. It must
have a bearing on the outcome of the case. It requires both:
a). rational or logical relevancy in that it has a connection to the issue and therefore
it has a tendency to establish the fact which it is offered to prove. The evidence
must therefore have probative value
b). legal relevancy in that the evidence is offered to prove a matter which has been
properly put in issue as determined by the pleadings in civil cases, or as fixed by the
pre-trial order, or as determined by substantive law. If so the matter has materiality.
Illustration: (i). Criminal case: the fact that the crime was committed at nighttime is
rationally or logically relevant to a killing at 12 midnight but evidence thereon would
be not be legally relevant if nighttime was not alleged in the Information. It would
be immaterial. (ii) Civil Case: In an action for sum of money based on a promissory
note, evidence that the defendant was misled into signing the note would be
rationally relevant but if fraud was never alleged as a defense, then evidence
thereof would be legally irrelevant or immaterial.
a). collateral matters-facts or matters which are not in issue. They are not generally
allowed to be proven except when relevant.
b) In criminal cases, the collateral matters allowed to be proven, being relevant
include:
(i). Antecedent Circumstances, or those in existing even prior to the commission of
the crime. They include such matters as habit, custom, bad moral character when
self defense is invoked; or plan design, conspiracy, or premeditation, agreement to
a price, promise or reward
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c). Example: Motive is generally irrelevant and proof thereof is not allowed except:
when the evidence is purely circumstantial, when there is doubt as to the identity of
the accused, or when it is an element of the crime.
B. COMPETENCY ( All facts having rational probative value are admissible unless
some specific law or rule forbids). In short the evidence is not excluded by law or
rules.
A. The Exclusionary Rule Principle - the principle which mandates that evidence
obtained from an illegal arrest, unreasonable search or coercive investigation, or in
violation of a particular law, must be excluded from the trial and will not be
admitted as evidence.
1. The principle judges the admissibility of evidence based on HOW the evidence is
obtained or acquired and not WHAT the evidence proves.
2. The principle is to be applied only if it is so expressly provided for by the
constitution or by a particular law. Even if the manner of obtaining the evidence is in
violation of a certain law but the law does not declare that the evidence is
inadmissible, then such evidence will be admissible.
Example: The accused claimed that information about his bank accounts i.e. trust
funds, was obtained in violation of the Secrecy of Bank Deposits Law ( R.A. 1405)
and moved to have them be excluded as evidence. HELD: R.A. 1405 nowhere
provides that an unlawful examination of bank accounts shall render the evidence
there from inadmissible in evidence. If Congress has both established a right and
provided exclusive remedies for its violation, the court would encroaching upon the
prerogatives of congress if it authorizes a remedy not provided for by statute.
Absent a specific reference to an exclusionary rule, it is not appropriate for the
courts to read such a provision into the act. ( Ejercito vs. Sandiganbayan, 509 SCRA
190, Nov. 30, 2006).
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3. The phrase is attributed to Justice Felix Frankfurter of the U.S. Supreme and has
its biblical reference to Mathew 7: 17-20.
C Illustrations:
A suspect as forced to make a confession where he revealed he took shabu from the
room of X. Based on this knowledge the police went to the house of X and with the
consent of X, searched his room and found the shabu. The confession is
inadmissible because of the exclusionary. It is the poisoned tree. The shabu is
inadmissible because knowledge of its existence was based on the confession. It is
the fruit.
D. Exceptions to the two principles- when evidence is still admissible despite the
commission of an illegal arrest, search or interrogation, or violation of a particular
exclusionary law.
normal police investigation would have inevitably led to the discovery of the
evidence
a). The time period between the illegal arrest and the ensuing confession or
consented search
b). The presence of intervening factors or events
c). The purpose and flagrancy of the official misconduct
A. Under Article III of the Constitution the following evidence are inadmissible
1. evidence obtained in violation of the right against unreasonable search and
seizure
2. evidence obtained in violation of the privacy of communication and
correspondence, except upon lawful order of the court or when public safety or
order requires otherwise
3. evidence consisting of extra-judicial confessions which are uncounselled, or when
the confessant was not properly informed of his constitutional rights, or when the
confession was coerced
4. evidence obtained in violation of the right against self-incrimination
B. Principles:
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1. The exclusionary rule in all the foregoing provisions is TOTAL in that the
inadmissibility or incompetency applies to all cases, whether civil criminal or
administrative, and for all purposes.
2. The incompetency applies only if the evidence was obtained by law enforcers or
other authorized agencies of the government. It does not apply if the evidence was
obtained by private persons such as private security personnel or private detectives
even if they perform functions similar to the police whenever a crime was
committed.
a). Thus evidence obtained by the following are not covered by the constitutional
provisions: (i) the security personnel or house detectives of hotels or commercial
establishments or schools (ii) private security agencies even if they are guarding
public or government buildings/offices (iii) employers and their agents.
It will be some other appropriate principle on the admissibility of evidence which will
govern.
b). However, by way of exception, the rule of incompetency applies if what are
involved are the private correspondence of an individual. In Zulueta vs. CA ( Feb.
1986) it was held that pictures and love letters proving the infidelity of the husband,
kept by him in his private clinic, taken by the wife without the knowledge of the
husband, are inadmissible as evidence for being obtained in violation of the
husbands privacy of communication and correspondence.
The intimacies between husband and wife do not justify anyone of them breaking
the drawers and cabinet of the other and ransacking them for any telltale evidence
of marital infidelity. A person, by contracting marriage, does not shed his or her
integrity or his right to privacy as an individual and the constitutional protection is
available to him or her
IV. R.A. 4200 ( The Anti Wire Tapping Law) Exclusion as to evidence obtained
through mechanical, electronic or other surveillance or intercepting devises.
(Intercepted communications)
a. The person who obtained the evidence may be a third person or a participant in
the conversation or communication.
FACTS: Ramirez and Garcia had a confrontation in the office of Garcia. Ramirez
secretly taped their verbal confrontation and used it as evidence in her action for
damages against Garcia who in turn filed a criminal case against Ramirez for
violation of R.A. 4200. Ramirez held that the taping by a participant to a
conversation is not covered by the law.
HELD: 1. The law does not make a distinction as to whether the party sought to be
penalized is a party or not to the private conversation. 2. The nature of the
conversation is immaterial What is penalized is the act of secretly overhearing,
intercepting, or recording private communications by the devices enumerate under
Section 1. (Ramirez vs. C.A., September 28, 1995)
b. To be admissible the consent of the person speaking or of all the parties to the
conversation. However consent is not necessary if the words which were taped or
recorded were not intended to be confidential as when the were intended to be
heard by an audience or when uttered under circumstances of time, place, occasion
and similar circumstances
whereby it may reasonably be inferred that the
conversation was without regard to the presence of third persons.
c. Questions:
i). Does this apply if the recording of the words was unintentional or inadvertent,
such as conversations captured by a moving video camera?
ii). Are conversations in a police entrapment included?
iii). Is lip-reading included?
iv). Are conversations captured in surveillance cameras included?
v). Does this apply to secret taping through spy cameras purposely made to be
aired in television programs, such as Bitag, XXX and Cheaters?
vi). Are the gestures, snores, laughs, weeping, included as communication or
spoken words?
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vii). What about satellite discs and similar facilities? Google earth?
1. When Judicial Authorization was granted upon a written petition filed pursuant to
the provisions of R.A. 4200 if the crimes involve (a). treason (b) espionage (c)
provoking war and disloyalty ( d). piracy and mutiny in the high seas (e) sedition,
inciting to sedition (g)kidnapping (h) other offenses against national security.
The list is exclusive and does not include offenses which are equally or more serious
as those enumerated, such as drug trafficking, kidnapping, Trafficking in Persons,
Rape, Murder.
2.When Judicial Authorization is granted upon a written petition under R.A. 9372
( The Human Security Act of 2007) in connection with the crimes of terrorism or
conspiracy to commit terrorism. If granted the authority covers written
communications.
1. The rule excluding secondary evidence when the primary or best evidence is
available
2. The rule excluding hearsay evidence
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certain requirements of the law or rules. If the conditions are not later met, the
evidence will be stricken from the record.
B. Limitations:
2. The court has the power to limit the presentation of additional evidence which
are but cumulative, or to prove points which a party has already well presented
Scope of Evidence
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Sec. 2. Scope- The rules of evidence shall be the same in all courts and in all trials
and hearings, except as otherwise provided by law or these rules.
I. General Rule- Section 2 provides the Rule on Uniformity in the Application of the
Rules. The same rules shall govern the trial in the lower courts and appellate courts,
in civil and in criminal cases. The reason is that the search for truth is subject to the
same rules.
II. Exceptions:
2. Cases covered by the Rules on Summary Procedure- the rules are relaxed and the
procedure is abbreviated
1. As to the quantum of evidence for the plaintiff to win: proof of guilt of the
accused beyond reasonable doubt vs. preponderance of evidence
2. As to the presence of the parties: in civil cases the attendance of the parties is
not required and they attend on their own volition whereas in criminal cases, the
presence of the accused is required unless he waived the same
3 As to the effect of the absence of a party: in civil cases, except during the pretrial, the proceedings may proceed even in the absence of the parties whereas in
criminal cases, trial cannot proceed if the accused was not notified
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1. means sanctioned by these rules. The procedure for determining the truth is as
provided for under Rules 128 to Rule 133, including the amendments there to and
their interpretation given by the Courts
2. of ascertaining in a judicial proceeding- the rules or procedure is applicable only
to controversies tried by the regular courts of law; the procedure or rules of
evidence doe not apply in quasi-judicial or administrative tribunals or to courts
martial. The latter may adopt the rules in their discretion
3. The truth:
a). The ultimate objective of the rules of evidence is to render justice by arriving at
the truth of a matter in dispute i.e by knowing the facts and the meaning of these
facts .
b). Factual or moral truth- the truth which the court seeks to know
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c). Judicial truth- the truth as found by the courts based on the evidence presented
to it
d) Ideal or perfect justice- when the judicial truth is likewise the factual truth.
Where the two differ, still there is justice so long as the court observed both
substantive and procedural due process
in
of
or
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III. Related Concepts: In the following instances the term evidence is understood
in the sense of being the materials presented in court and not a methodology or
proof.
1. Evidence from Proof-Strictly evidence is the medium of proof whereas proof is the
result of evidence. Thus the materials consisting of the weapon used, the confession
of the accused, the testimony of the complainant and witnesses, the result of the
paraffin test, will constitute the evidence of guilt. Their combined effect will be Proof
of guilt Beyond Reasonable Doubt.
The two terms are often used interchangeably.
a) This applies only in criminal cases and is governed under Rule 133(4) which for
purposes of supporting a finding of guilt, requires:
i). that there be more than one circumstance
ii).that the facts from which the inference are derived are proven
iii). the combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt
b) Per the Supreme Court: it is essential that the circumstantial evidence presented
must constitute an unbroken chain which leads one to a fair and reasonable
conclusion pointing to the accused, to the exclusion of all others, as the guilty
person.
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a).conclusive may either be (i) that which the law does not allow to be
contradicted as in judicial admissions or (b) that the effect of which overwhelms any
evidence to the contrary as the DNA profile of a person as the natural father over a
denial
b). prima facie- that which, standing alone and uncontradicted, is sufficient to
maintain the proposition affirmed. In the eyes of the law it is sufficient to establish a
fact until it has been disproved, rebutted or contradicted or overcome by contrary
proof.
a). cumulative- additional evidence of the same kind bearing on the same point.
E.g.: testimonies of several eyewitnesses to the same incident
b). corroborative-additional evidence of a different kind or character but tending to
prove the same point. It is evidence which confirms or supports. Thus: (i) the
medico legal certificate describing the injuries to have been caused by a sharp
pointed instrument corroborates the statement that the accused used a knife to
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stab the victim (ii) the positive results of a paraffin test corroborates the allegation
that the person fired a gun and (iii) the ballistics examination on the gun of the
suspect corroborates the statement that he fired his gun at the victim
F. As to form:
a). documentaryb). object- those consisting of evidence which are addressed to the senses of the
court
c). Testimonial- evidence consisting the narration made under oath by a witness
1. The Principal Source: Rules 128 to Rule 133 of the Revised Rules of Court
a). Origin: The rules are patterned and based on the rules of evidence as developed,
applied and interpreted in the English and American Courts. Thus the rules on the
disqualification of witnesses are pattered from the rules applied in the State of
California. Our rules concerning confessions are patterned after American rules
b). Decisions of the English and American Courts, as well as opinions and works of
English and American jurists, such as Wigmore, Clark, Jones, and others, are given
great weight
2. The Philippine constitution particularly, its provisions on the Bill of Rights and the
Article on the Supreme Court
1. The power is essentially legislative in that it is Congress which can enact laws
concerning the presentation, admissibility, and weight of evidence. However the
Supreme Court is not precluded from issuing adopting circulars and rules concerning
the rules of evidence
2. New laws maybe issued under the Principle that No person has a vested right in
the rules of evidence. Parties to a pending case can not demand that a new rule of
evidence should not apply to them because it will be adverse to their cause. Rules
of evidence may be altered or repelled at anytime and will apply to pending cases
even if the effect is adverse to a party therein. The exceptions are rules which
partake of the nature of Ex post facto laws or Bills of Attainder.
2. As to waiver:
a). Rules intended for the protection of the parties maybe waived Examples: Rules
on the Disqualification of Witnesses, the Privileged Communication Rule, The Best
Evidence Rule
b). Rules grounded on public policy can not be waived. Examples: The Rule on the
Identity of State Secrets; the rule on the inadmissibility of Coerced Confessions and
evidence resulting from illegal searches and seizures; the 2 witness rule on treason
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1. Rules of Probative Policy. These are rules the purposes of which is to improve the
probative value of the evidence offered
a). Exclusionary Rules- those that exclude certain kinds of evidence on the grounds
of policy and relevancy. Example: the rule that character evidence is not admissible
in civil cases; the rule disqualifying certain persons from being witnesses.
b). Preferential Rules- those which require one kind of evidence in preference to any
other in that they are more trustworthy. Example: the rule which require that the
original of a document is preferred over any other as proof of the contents of a
document
c). Analytical rules- those that subject certain kinds of evidence to rigid scrutiny, so
as to expose their possible weaknesses and shortcomings. Examples: the rules
which require that testimonial evidence be subjected to the opportunity for crossexamination
d). Prophylactic rules- those that apply beforehand certain measures to prevent risk,
falsity or mistake. Examples: the rules which require that witnesses be placed under
oath; the rules on the separation and exclusion of witnesses
e). Quantitative Rules- the rules that require certain kinds of evidence to be
produced in specific quantity, or that certain evidence be required to be associated
with other evidence when presented. Examples: the 2-witness rule in the crime of
treason; the rule which require that an extra judicial confession be corroborated by
evidence of corpus delicti; that the testimony of a state witness be corroborated in
its material points.
2. Rules of Extrinsic Policy- these are rules which seek to exclude useful evidence for
the sake of up holding other policies considered more paramount. They may either
be absolute or conditional.
Examples: The Exclusionary Provisions of the Constitution; the Anti Wire Tapping
Law.
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