Evidence

I. PRELIMINARY CONSIDERATION:
A. Importance of the study of Evidence in Law Enforcement:
As an element of our Criminal Justice System, it is the duty of every law enforcement agencies to
provide the prosecution with the materials and information (Evidence) necessary in order to support
conviction.
Every person is entitled to be presumed innocent of a crime or wrong, unless proven otherwise. This
is a prima facie presumption which must be overcome by proof beyond reasonable doubt. Prima
facie also refers to specific evidence that, if believed, supports a case or an element that needs to be
proved in the case. The term prima facie evidence is used in both civil and Criminal Law. For
example, if the prosecution in a murder case presents a videotape showing the defendant screaming
death threats at the victim, such evidence may be prima facie evidence of intent to kill, an element
that must be proved by the prosecution before the defendant may be convicted of murder. On its
face, the evidence indicates that the defendant intended to kill the victim.
B. Connecting the chain of events through Evidence during Trial:
Trial refers to the examination before a competent tribunal, according to the laws of the land, of the
facts in issue in a cause, for the purposes of determining such issue (U.S. v. Raymundo, 14 Phil
416).
Evidence helps in the determination of Questions of Facts by helping the judge reconstruct the chain
of events from the conception up to the consummation of a criminal design.
C. Factum Probandum and Factum Probans
Factum Probandum The ultimate facts to be proven. These are the proposition of law.
Examples:
murder was committed thru treachery
robbery was made through force upon things
Factum Probans The evidentiary Facts. These address questions of fact.
Examples:
exit wounds were in front indicating that victim was shot at the back
destroyed locks indicative of force upon things
Thus, the outcome of every trial is determined by:
Propositions of law, and
Questions of fact.
D. Proof and Evidence
Evidence the means to arrive at a conclusion. Under the Revised Rules of Court, evidence is
defined as the means, sanctioned by the rules, for ascertainment in a judicial proceeding, the truth,
respecting a matter of fact.
Proof the result of introducing evidence. The establishment of a requisite degree of belief in the
mind of the judge as to the facts in issue. It refers to the accumulation of evidence sufficient to
persuade the trial court.
Quantum of evidence the totality of evidence presented for consideration
Quantum of proof refers to the degree of proof required in order to arrive at a conclusion.

Burden of evidence the duty of a party of going forward with evidence.

Burden of proof the duty of the affirmative to prove that which it alleges.
Variations on degrees of proof based on type of action:
1. Criminal Action proof beyond reasonable doubt [that degree of proof which produces
conviction in an unprejudiced mind]
2. Civil Action preponderance of evidence [evidence of greater weight or more convincing than
that which is offered to refute it]
3. Administrative Action sufficiency of evidence [that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a conclusion]
E. Exclusionary Rule. (Fruit of the poisonous tree doctrine)
Evidence ILLEGALLY OBTAINED are inadmissible for reasons of public policy. This is so because
of the constitutional requirement of due process. Due process has been defined as the law that hears
before it condemns, which proceeds upon inquiry, and renders judgment only after fair trial.
As a result, jurisprudence has evolved a rule that renders inadmissible any evidence obtained in an
illegal search from being introduced in trial.
F. Principle of Chain of Custody of Evidence
If the evidence is of a type which cannot be easily recognized or can readily be confused or tampered
with, the proponent of the object must present evidence of its chain of custody. The proponent need
not negate all possibilities of substitution or tampering in the chain of custody, but must show that:
The evidence is identified as the same object which was taken from the scene;
It was not tampered with, or that any alteration can be sufficiently explained (i.e. discoloration due to
the application of ninhydrine solution, etc.); and
The persons who have handled the evidence are known and may be examined in court with regard to
the object.
II. GENERAL PROVISIONS:
A. Concepts of evidence:
1. It is a means of ascertainment used to arrive at a legal conclusion
2. It is sanctioned by the rules of court meaning, not excluded by the rules on relevancy and
admissibility
3. It is used in a judicial proceeding there is a jural conflict involving different rights asserted by
different parties
4. It pertains to the truth respecting a matter of fact evidence represents a claim either for the
prosecution or for the defense where issues (clashes of view) are present.
Admissibility of Evidence:
For evidence to be admissible, it must be:
1) relevant to the issue [relevancy test], and
2) not excluded by the law or rules of court [competency test].
Note: To determine the relevancy of any item of proof, the purpose for which it is sought to be
introduced must first be known (There must be a formal offer).
Test of relevancy of evidence:
Whether or not the factual information tendered for evaluation of the trial court would be helpful in
the determination of the factual issue that is disputed.

When is evidence relevant?

When it has a relation to the fact in issue as to induce belief in its:
1) existence, or
2) non-existence
In other words, evidence is relevant when it is:
1) material, and
2) has probative value
What is meant by probative value?
It is the tendency of the evidence to establish the proposition that it is offered to prove.
Collateral Matters not admissible except when it tend in any reasonable degree to establish
probability or improbability of the fact in issue.
Collateral matters matters other than the fact in issue and which are offered as a basis for inference
as to the existence or non-existence of the facts in issue.
Collateral matters are classified into:
1. Antecedent circumstances facts existing before the commission of the crime [i.e. hatred, bad
moral character of the offender, previous plan, conspiracy, etc.]
2. Concomitant circumstances facts existing during the commission of the crime [i.e.
opportunity, presence of the accused at the scene of the crime, etc.]
3. Subsequent circumstances facts existing after the commission of the crime [i.e. flight,
extrajudicial admission to third party, attempt to conceal effects of the crime, possession of stolen
property, etc.]
Query: Is modus operandi an antecedent, concomitant or subsequent circumstance?
B. Judicial Notice, basis of:
Judicial notice is based on necessity and expediency. This is so because what is known need not be
proved.
Different kinds of judicial notices:
1.
2.
3.

mandatory
discretionary
hearing required

C. Confession and Admission, distinguished:

Confession an acknowledgement of guilt.
Admission an acknowledgment of facts.
Different kinds of confession/admission:
1. Judicial
2. Extrajudicial
3. Oral
4. Written
5. Voluntary
6. Forced
Different kinds of evidence:
1. Relevant evidence evidence having any value in reason as tending
to prove any matter provable in an action.
2. Material evidence evidence is material when it is directed to prove a
fact in issue as determined by the rules of substantive law and

pleadings.
Competent evidence not excluded by law.
Direct evidence proves the fact in issue without aid of inference
or presumptions.
5. Circumstantial evidence - the proof of fact or facts from which, taken
collectively, the existence of a particular fact in dispute
may be inferred as necessary or probable consequence.
6. Positive evidence evidence which affirms a fact in issue.
7. Negative evidence - evidence which denies the existence of a fact
in issue.
8. Rebutting evidence given to repel, counter act or disprove facts
given in evidence by the other party.
9. Primary/Best evidence that which the law regards as affording
the greatest certainty.
10. Secondary evidence that which indicates the existence of a
more original source of information.
11. Expert evidence the testimony of one possessing knowledge
not usually acquired by other persons.
12. Prima facie evidence evidence which can stand alone to support
a conviction unless rebutted.
13. Conclusive evidence incontrovertible evidence
14. Cumulative evidence additional evidence of the same kind bearing
on the same point.
15. Corroborative evidence additional evidence of a different kind
and character tending to prove the same point as that of previously
offered evidence.
16. Character evidence evidence of a persons moral standing or
personality traits in a community based on reputation or opinion.
17. Demeanor evidence the behavior of a witness on the witness stand
during trial to be considered by the judge on the issue of credibility.
18. Demonstrative evidence evidence that has tangible and
exemplifying purpose.
19. Hearsay evidence oral testimony or documentary evidence which
does not derive its value solely from the credit to be attached to the
witness himself.
20.Testimonial evidence oral averments given in open court by
the witness.
21. Object/Auotoptic proferrence/Real evidence those addressed to
the senses of the court (sight, hearing, smell, touch, taste).
22. Documentary evidence those consisting of writing or any material
3.
4.

either singly or

of written expression offered as proof of its contents.

containing letters, words, numbers, figures, symbols or other modes

Best Evidence Rule:
When the subject of the inquiry is the contents of a document, no evidence shall be admissible other
than the original of the document.
For exceptions, see Sec. 3, Rule 130, Revised Rules of Court.
A document is legally considered Original when:
1. It is the subject of an inquiry
2. When in two or more copies executed at or about the same time, with identical contents.
3. When an entry is repeated in ordinary course of business, one being copied from another at or
near the time of the transaction.
Question: May a fake document be considered as original or authentic?
Yes. A forged or spurious document when presented in court for examination is considered as the
original fake/forged document. Thus, a mere photocopy of the allegedly forged or spurious
document is only secondary to the original questioned document.

Secondary Evidence
When the original document has been:
1. lost,
2. destroyed, or
3. cannot be produced in court.
The offeror without bad faith must:
1. prove its execution or existence, and
2. prove the cause of its unavailability.
Secondary evidence may consist of:
1. a copy,
2. recital of its contents in some authentic document, or
3. by testimony of witnesses.
When original document is in the custody of:
1. adverse party adverse party must have reasonable notice to produce it. After such notice and
satisfactory proof of its existence, he fails to produce it, secondary evidence may be presented.
2. public officer contents may be proved by certified copy issued by the public officer in custody
thereof.
III. TESTIMONIAL EVIDENCE:
Qualifications of witnesses:
1. can perceive
2. can make known their perception to others
3. not disqualified by reason of mental incapacity, immaturity, marriage, privileged
communications, or dead mans statute.
Res Inter Alios Acta Rule
General Rule: The rights of a party cannot be prejudiced by an act, declaration, or omission of
another.
Exception:
1. admission by a co-partner or agent
2. admission by a conspirator
3. admission by privies
4. admission by silence
In the above cases, the admission of one person is admissible as evidence against another.
Testimonial Knowledge:
General Rule: A witness can testify only to those facts which he knows of his personal knowledge;
that is, which are derived from his own perception. Any statement which derives its strength from
anothers personal knowledge is hearsay, and is therefore inadmissible.
Exceptions:
1. Dying declarations (ante-mortem statements)
2. Declaration against interest
3. Act or declaration about pedigree
4. Family reputation or tradition regarding pedigree
5. Common reputation
6. Part of the res gestae
7. Entries in the course of business
8. Entries in official records
9. Commercial lists and the like
10. Learned treatises
11. Testimony or deposition at a former proceeding

12.

Examination of child victim/witness in cases of child abuse

IV. BURDEN OF PROOF AND PRESUMPTIONS:

Burden of proof the duty of a party to present evidence on the facts in issue necessary to establish
his claim or defense by the amount of evidence required by law.
Presumption an inference as to the existence of a fact not actually known, arising from its usual
connection with another which is known or a conjecture based on past experience as to what course
human affairs ordinarily take.
2 kinds of presumptions:
1. Conclusive presumptions [jure et de jure] based on rules of substantive law which cannot be
overcome by evidence to the contrary.
2. Disputable presumptions [prima facie presumptions, rebuttable presumptions] based on
procedural rules and may be overcome by evidence to the contrary.
Kinds of Conclusive Presumptions:
1. Estoppel by record or judgment the preclusion to deny the truth of matters set forth in a record,
whether judicial or legislative, and also deny the facts adjudicated by a court of competent
jurisdiction (Salud v. CA, 233 SCRA 387).
2. Estoppel by deed a bar which precludes a party to a deed and his privies from asserting as
against the other and his privies any right or title in derogation of the deed or denying the truth of
any material fact asserted in it (Iriola v. Felices, 30 SCRA 202).
3. Estoppel in pais based upon express representation or statements or upon positive acts or
conduct. A party cannot, in the course of litigation or in dealings in pais, be permitted to repudiate
his representation or occupy inconsistent positions.
4. Estoppel against Tenant the tenant is not permitted to deny the title of his landlord at the time
of the commencement of the relation of landlord and tenant between them.
Note: For Kinds of disputable presumptions, see Sec. 3, Rule 131 of the Revised Rules of Court.
Presentation of Evidence:
The examination of witnesses presented in a trial or hearing shall be done is open court, and under
oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for a different
mode of answer, the answer of the witness shall be given orally.
Rights and Obligations of witnesses:
1. To be protected from irrelevant, improper, or insulting questions,
and from harsh or insulting demeanor.
2. Not to be detained longer than the interest of justice requires.
3. Not to be examined except only as to matters pertinent to the
issue.
4. Not to give an answer which will tend to subject him to a penalty
for an offense unless otherwise provided by law.
5. Not to give an answer which will tend to degrade his reputation,
unless it be to the very fact at issue or to the fact from which the fact in issue would be
presumed,but a witness must answer to the
facts of his previous final conviction for an offense.
Order of Examination of individual witnesses:
Direct examination by the proponent
Cross examination by the opponent
Re-direct examination by the proponent
Re-cross examination by the opponent
Direct examination the examination in chief of a witness by the party presenting him on the facts
relevant to the issue.
Cross examination the examination by the adverse party of the witness as to any matter stated in
the direct examination, or connected therewith, with sufficient fullness and freedom from interest or

bias, or the reverse, and to elicit all important facts bearing upon the issue.
Re-direct examination second questioning by the proponent to explain or supplement answers
given in the cross examination.
Re-cross examination second questioning by the adverse party on matters stated on the re-direct
and also on such matters as may be allowed by court.
Different Types of Questions:
Leading questions It is one where the answer is already supplied by the examiner into the mouth of
the witness. [Ex. You saw Jose killed Juan because you were present when it happened, didnt you?]
Misleading question a question which cannot be answered without making an unintended
admission. [Ex. Do you still beat your wife?]
Compound question a question which calls for a single answer to more than one question. [Ex.
Have you seen and heard him?]
Argumentative question a type of leading question which reflects the examiners interpretation of
the facts. [Ex. Why were you driving carelessly?]
Speculative question a question which assumes a disputed fact not stated by the witness as true.
[Ex. The victim cried in pain, didnt he?]
Conclusionary question a question which asks for an opinion which the witness is not qualified or
permitted to answer. [Ex. Asking a high school drop-out whether the gun used is a Cal. 45 pistol or
9mm pistol]
Cumulative question a question which has already been asked and answered.
Harassing/Embarrassing question [Ex. Are you a homosexual?]
Classes of Documents:
Documents are either public or private.
Public documents are:
1. The written official acts, or records of the official acts of sovereign authority, official bodies and
tribunals, and public officers, whether of the Philippines, or a foreign country.
2. Documents acknowledged before a notary public except last wills and testaments.
3. Public records (1) kept in the Philippines, or private documents (2) required by law to be
entered therein.
All other writings are private.
SOME USEFUL LATIN TERMS AND LEGAL MAXIMS:
Verba legis non est decendendum from the words of the law there can be no departure.
Dura lex sed lex the law may be harsh but it is the law.
Ignorantia legis neminem excusat ignorance of the law excuses no one.
Ignorantia facti excusat mistake of fact excuses.
Praeter intentionem different from that which was intended.
Error in personae mistake in identity.
Abberatio Ictus mistake in the blow
Nulum crimen, nulla poena sine lege there is no crime when there is no law punishing the same.
Actus non facit reum, nisi mens sit rea the act cannot be criminal where the mind is not criminal.
Actus mi invictu reus, nisi mens facit reum an act done by me against my will is not my act.

Mens rea guilty mind.

Actus reus guilty act.
Res ipsa loquitor the thing speaks for itself.
Causa Proxima proximate cause which produced the immediate
effect.
Prima facie at first glance.
Locus Criminis scene of the crime or crime scene.
Pro Reo principle in Criminal Law which states that where the statute admits of several
interpretations, the one most favorable to the accused shall be adopted.
Res Gestae the thing itself.
Falsus in unum, falsus in omnibus false in one part of the statement would render the entire
statement false (note: this maxim is not recognized in our jurisdiction).
Evidence - Definition of Terms: Next Page

Evidence - Definition of Terms

Admissible evidence - Evidence that is both relevant and
competent.
Admissions - Any statement of fact made by a party against his
interest or unfavorable to the conclusion for which he contends
or is inconsistent with the facts alleged by him.
Best Evidence Rule - When the subject of inquiry is the contents
of a document, no evidence shall be admissible other than the
original document itself.
Burden of Proof - Duty of a party to present evidence on the
facts in issue necessary to establish his claim/defense by the
amount required by law.
Child Witness - Any person who at the time of giving testimony
is less than 18 years old.
Circumstantial Evidence - Proof of fact/s from which, taken
singly/collectively, the existence of the particular fact in
dispute may be inferred as a necessary/probable consequence.
It is evidence of relevant collateral facts.
Collateral Matters - Matters other than the fact in issue and which
are offered as a basis for inference as to the existence or
non-existence of the facts in issue.
Competence - Evidence is not excluded by law or Rules of Court.
Conclusive Evidence - That class of evidence which the law does
not allow to be contradicted.
Confession - A categorical acknowledgment of guilt made by an
accused in a criminal case without any exculpatory statement
or explanation.
Corroborative Evidence - Additional evidence of a different

character to the same point.

Cumulative Evidence - Evidence of the same kind and to the
same state of facts.
Direct Evidence - Proves the fact in dispute without aid of any
inference or presumption.
Documentary Evidence : Writings or any material containing
letters, words, numbers, figures, symbols or other modes of
written expression offered as proof of their content.
Electronic Data Message - Information generated, sent, received
or stored by electronic, optical or similar means
Electronic Document - Information or the representation of
information/data/figures/symbols or other modes of written
expression described or however represented, by which a right
is established or an obligation extinguished, or by which a fact
may be proved and affirmed, which is received/recorded/
transmitted/stored/processed/retrieved/produced electronically.
It includes digitally signed documents and any print out or output,
readable by sight or other means, which accurately reflects the
electronic data message or electronic document.
Electronic Signature - Any distinctive mark, characteristic and/or
sound in electronic form, representing the identity of a person
and attached to or logically associated with the electronic data
message or electronic document or any methodology/
procedure employed/adopted by a person and executed/adopted
by such person with the intention of authenticating, signing or
approving an electronic data message or electronic document.
Ephemeral Electronic Communication - Refers to telephone
conversations, text messages, chatroom sessions, streaming
audio, streaming video and other electronic forms of
communication the evidence of which is not recorded/retained.
Extra Judicial Admission - Any admission other than judicial.
Factum probandum ultimate fact or the fact sought to be
established.
Factum probans evidentiary fact or the fact by which the factum probandum is
to be established.
Judicial Admissions - Admissions, verbal or written, made by
the party in the course of the proceedings in the same case.
It requires no proof.
Negative Evidence - When witness states that he did not see or
know of the occurrence of a fact (total disclaimer of personal
knowledge).
Object Evidence - Directly addressed to the senses of the court.
Also called real evidence.
Parol Evidence Rule - Any evidence aliunde, whether oral or
written, which is intended or tends to vary or contradict a
complete and enforceable agreement embodied in a

document.
Pedigree - Relationship, family genealogy, birth, marriage,
death, the dates when and the places where these fast
occurred, and the names of the relatives. It also embraces facts
of family history intimately connected with pedigree.
Positive Evidence - When a witness affirms that a fact did or did
not occur (there is personal knowledge).
Preponderance of Evidence - The evidence adduced by one
side is, as a whole, superior to or has greater weight than that
of the other. Where the evidence presented by one side is
insufficient to ascertain the claim, there is no
preponderance of evidence.
Prima Facie Evidence - That which, standing alone, is sufficient
to maintain the proposition affirmed.
Primary Evidence - (Best Evidence) - That which the law regards
as affording greatest certainty of the fact in question.
Proof Beyond Reasonable Doubt - That degree of proof which
produces conviction in an unprejudiced mind. It does not mean
such a degree of proof as, excluding the possibility of error,
produces absolute certainty. Only moral certainty is required
that degree of proof which produces conviction in an
unprejudiced mind.
Relevance - Evidence has such a relation to the fact in issue as
to induce belief of its existence or non-existence.
Res Gestae - It literally means Things done.
1) Statements made by a person while a starting
occurrence is taking place or immediately prior
or subsequent thereto, with respect to the
circumstances thereof.
2) Statements accompanying an equivocal act
material to the issue, and giving it a legal
significance.
Res Inter Alios Acta - The rights of a party cannot be prejudiced
by an act/declaration/omission of another.
Secondary Evidence - (Substitutionary) - That which is inferior to
the primary evidence and is permitted by law only when the best
evidence is not available.
Substantial Evidence - The amount of relevant evidence which
a reasonable mind might accept as adequate to support a
conclusion.
Testimonial Evidence - Submitted to the court through the
testimony or deposition of a witness.

EVIDENCE

1. Definitions
a. Factum probandum ultimate fact or the fact sought to beestablished
b. Factum probans evidentiary fact or the fact by which the factumprobandum is
to be established
2. Classification of evidence
a. Object (Real)
( That which is directly addressed to the senses of the court andconsists of tangible
things exhibited or demonstrated in open court, inan ocular inspection, or at a place
designated by the court for itsview or observation of an exhibition, experiment or
demonstration;always relevant regardless of contents
Documentary
( Evidence supplied by written instruments or derived fromconventional symbols,
such as letter, by which ideas are represented onmaterial substances
Testimonial
( That which is submitted to the court through the testimony ordeposition of a
witness
b. Relevant
( Evidence having any value in reason as tending to prove anymatter provable in an
action( Relevancy logical relation of evidentiary fact to fact in issue
Material
( Evidence directed to prove a fact in issue
Competent
( One that is not excluded by law in particular case
c. Direct
( That which proves the fact in dispute without the aid of anyinference or
presumption
Circumstantial
( The proof of the facts other than the fact in issue from which,taken either singly or
collectively, the existence of the particularfact in dispute may be inferred as a
necessary or probable consequence
d. Cumulative
( Evidence of the same kind and to the same state of facts
Corroborative
( Additional evidence of a different character to the same pointfor higher probative
value
e. Prima facie
( That which standing alone, unexplained or uncontradicted issufficient to maintain
a proposition
Conclusive
( Class of evidence which the law does not allow to be contradicted
f. Primary or Best
( That which the law regards as affording greatest certainty of thefact in question
Secondary or Substitutionary
( That which is inferior to the primary evidence and is permittedby law only when
the best evidence is not available

g. Positive
( The witness affirms that a fact did or did not occur
Negative
( The witness states that he did not see or know of the occurrenceof a fact
RULE 129 WHAT NEED NOT BE PROVED
1. What do not need to be proved: [NAPITAS]
Matters of judicial notice
Judicial admissions
Facts presumed
Allegations in complaint or answer which are immaterial to the issue
Facts admitted or not denied in the answer, provided they have beensufficiently
alleged
Those which are the subject of an agreed stipulation of facts betweenthe parties, as
well as judicial admissions made in the course of theproceedings
Technical admission when defendant fails to specifically deny theallegations of
plaintiff
2. Doctrine of processual presumption absent any evidence oradmission, the
foreign law in question is presumed to be the same asthat in the Philippines
3. Mandatory judicial notice [SLAPTONG]
States existence, territory, political history, government, symbolsof nationality
Law of nations
Admiralty and maritime courts and seals
Philippine political constitution and history
Official acts
( Court cannot take judicial notice of a law or regulation that isnot yet effective
( Decisions of SC are proper subjects of mandatory judicial notice
Laws of nature
Measure of time
Geographical division
4. Discretionary judicial notice
Matters which are of public knowledge
( Common and general knowledge
( Indisputable
Matters capable of unquestionable demonstration
Ought to be known by judges because of their judicial functions
( Newspaper reports not subject to judicial notice

( Courts cannot take judicial notice of custom. Custom must beproved as a matter of
fact.
Pardon is granted by the Chief Executive and as such is a private actwhich must be
pleaded and proved by the person pardoned.
5. Judicial Admissions:
( Verbal or written; made by a party in course of the proceedingsin the same case
( May only be contradicted by showing that:
Made through palpable mistake; or
No such admission was made.
( Admissions made in a pleading later amended: lose their status asjudicial
admissions; become merely extra-judicial admissions which mustbe offered.
( A stipulation made during a criminal proceeding is tantamount toa judicial
admission and need not be signed as required by R118, 4 tobe binding on the
accused.
( A court cannot take judicial notice of an admission made by aparty in another case
even if the latter case is pending before thesame sala or judge, except:
In the absence of objection;
With knowledge or upon request of the parties;
It is part of the records.
RULE 130 RULES OF ADMISSIBILITY
1. Admissibility of object evidence
Relevant to fact in evidence
Object must be authenticated before it is admitted
Production of documents under this rule and Under Rule 27 (modes ofdiscovery),
distinguished
Rule 130 Rule 27 Production is procured by mere notice to adverseparty, and
requirements for such notice must be complied with as acondition precedent for the
subsequent evidence by the proponent
Production is by proper motion in the trial court, and is permittedonly upon good
cause shown (mode of discovery) Presupposes that the document to be produced is
intended as evidencefor the proponent who is presumed to have knowledge of its
contents,secondary evidence thereof being available in case of its
nonproductionContemplates situation wherein document is either assumedto be
favorable to the party in possession thereof OR that the partyseeking its production
is not sufficiently informed of the contents ofthe same
Best Evidence Rule
1. General Rule: When the subject of an inquiry is the contents of adocument, no
evidence shall be admissible other than the originaldocument itself. (If only the fact
of execution/existence/surroundingcircumstances only is involved, or when the
event is memorialized andthe writing is only incidental, the Rule does not apply)
2. Exceptions to Best Evidence Rule:

a. Original is lost or destroyed, or cannot be produced in courtwithout bad faith on

the part of the offeror;
When the original is in the custody of the party against whom theevidence is
offered, and the latter fails to produce it afterreasonable notice;
When the original consists of numerous accounts or other documentswhich cannot
be examined in court without great loss of time and theonly fact sought to be
established is the general result of the whole;and
When the original is a public record in the custody of a public officeror is recorded in
a public office.
3. Meaning of original document
The one the contents of which are the subject of an inquiryIf in 2 or more copies
executed:
At or about the same time; AND
With identical contents
( Then all copies are originalsIf entry isRepeated in regular course of business,
withOne being copied from another;
At or near the time of the transaction,
( Then all entries are originals
4. If original is unavailable:
( Order of proof (but can be changed at courts discretion):
Existence
Execution:
Established byPerson who executed it;
The person before whom its execution was acknowledged
Any person who was present and saw it executed, and recognized thesignature;
Any person to whom the parties to the instrument had previouslyconfessed the
execution thereof
c. Loss or Destruction
( If there are several original copies, all copies must beaccounted for before
secondary evidence may be received.
d. Contents
Proof of Contents of Lost Original or Original in custody/control of
adverse party (Secondary Evidence) in order stated:
A copy
A recital of its contents in an authentic document
Testimony of witnesses
6. What must be proven if original in possession of adverse party
Opponents possession of original

Reasonable notice to opponent to produce the original

Satisfactory proof of its existence
Failure or refusal of opponent to produce original in court
( By opponents failure to produce the document on demand, he isnow forbidden to
produce the document in order to contradict the otherpartys copy/evidence of its
contents
Parol Evidence Rule
1. General Rule: When the terms of an agreement have been reducedinto writing, it
is considered as containing all the terms agreed upon,and there can be, between
the parties and their successors in interest,no evidence of such terms other than the
contents of the writtenagreement
Exceptions to the Parol Evidence Rule:
when a party puts in issue in his pleadings: [FIVE]
Intrinsic ambiguity, mistake or imperfection in the written agreement
Failure of the written agreement to express the true intent of theparties;
Validity of the written agreement; OR
Existence of other terms agreed upon subsequent to the execution of thewritten
agreement
NOTE: Parol = evidence aliunde whether oral or written which tends todeny or
contradict documented agreement.
( A Receipt or a Deed is not an exclusive memorial and factscontained therein
may be shown irrespective of the terms of thedocument.
( Distinction must be made between statements of fact expressedin an instrument
and the terms of the contractual act. The formermay be varied by parol evidence.
( Parol Evidence Rule not applicable to strangers to the contractot third parties
Parol Evidence Rule and Best Evidence Rule Distinguished
Parol Evidence Rule Best Evidence Rule Presupposes that the originaldocument is
available in court The original writing is not availableand/or there is a dispute as to
whether said writing is the originalProhibits the varying of the terms of a written
agreement Prohibits theintroduction of substitutionary evidence in lieu of the
originaldocuments, regardless of whether or not it varies the contents of theoriginal
With the exception of wills, applies only to documents whichare contractual in
nature (written agreements) Applies to all kinds ofwritings Can be involved only
when the controversy is between theparties to the written agreements, their privies
or any party affectedthereby (does not apply to complete strangers) Can be invoked
by anyparty to an action, regardless of whether such party participated inthe writing
involved
Qualification of Witnesses
1. Persons Disqualified from becoming witnesses due to mentalincapacity or
immaturity:
a. Those whose mental condition, at the time of their production forexamination, is
such that they are incapable of intelligently makingknown their perceptions to
others; or

( A mental retardate is not, for this reason alone, disqualifiedfrom being a witness.
b. Children whose mental maturity is such as to render themincapable of perceiving
the facts respecting which they are examinedand of relating them truthfully.But a
child, regardless of age, may be considered as a competentwitness, if he is capable
of [ORC]:
Observation
Recollection; and
Communication
Marital Disqualification Rule
*During their marriage, neither the husband nor the wife may testifyfor or against
the other without the consent of the affected spouse,except in a civil case by one
against the other, or in a criminal casefor a crime committed by one against the
other or the latters directdescendants or ascendants.
1. Exemptions to Marital Disqualification
( Wife may testify against the husband in a criminal case forfalsification, where the
husband made it appear that the wife gave herconsent to the sale of a conjugal
house (considered as a crimecommitted against the wife)
( If husband-accused defends himself by imputing the crime to the wife,he is
deemed to have waived all objections to the wifes testimonyagainst him.
Dead Mans Statute
*Parties or assignors of parties to a case, or persons in whose behalfa case is
prosecuted, against an executor or administrator or otherrepresentative of a
deceased person, or against a person of unsoundmind, upon a claim or demand
against the estate of such deceased personor against such person of unsound mind,
cannot testify as to any matterof fact occurring before the death of such deceased
person or beforesuch person became of unsound mind.
1. Requisites for Application of Dead Mans Statute [PACO]
a. The witness is a Party or assignor of a party to a case, or of aperson on whose
behalf a case is prosecuted;( Dead Man Statute not applicable to a corporations
officers andstockholders in a suit instituted by the corporation. Thus, theofficers and
stockholders may testify.
b. The action is Against an executor, administrator or otherrepresentative of a
deceased person, or against a person of unsoundmind;
( Heirs of deceased person are considered representatives of adeceased person.
c. The subject matter of the action is a Claim or demand against theestate of such
deceased person, or against such person of unsound mind;
d. The testimony refers to any matter of Fact occurring before thedeath of such
deceased person, or before such person became of unsoundmind.
( Not covered by the Rule:
Counterclaim by defendant (plaintiff may testify in his defense)
Deceased contracted with plaintiff thru an agent of the deceased/insane(in the
contract which is the subject of the action) who is still aliveand can testify (but the
testimony is limited to the acts performed bythe agent)

If adverse party is called as a witness by the representative of

thedeceased/incompetent or if representative introduced evidence as to
thetransactions or communications with the deceased/incompetentTo cadastral
proceedings, where there is no defendant or plaintiff
Privileged Communications:
1. Kinds of Privileged Communications:
Marital privilege
Attorney-client
Doctor-patient
Priest-Penitent
Public Officers Privilege
2. Requisites for Marital Privilege
Valid marital relation must have existed
Privilege is claimed with respect to a communication made by one spouseto another
during the marriage;
Communication was made in confidence
3. Marital disqualification and marital privilege distinguished
Marital Disqualification Marital Privilege Can be invoked only if oneof the spouses is
a part to the action Can be claimed whether or notthe spouse is a party to the
action Right to invoke belongs to thespouse who is a party to the action Right to
invoke belongs to thespouse making the communication Applies only if the
marriage isexisting at the time the testimony is offered Can be claimed even
afterthe marriage has been dissolved Constitutes a total prohibitionagainst any
testimony for or against the spouse of the witness (withcertain exceptions) Applies
only to confidential communications betweenspouses made during the marriage
4. Attorney-Client Privilege
There is an attorney-client relationship
There is a communication made by the client to the attorney
Such communication was made in the course of, or with a view to,professional
employment
( Extends to attorneys secretary, stenographer or clerk; requiresconsent of both
employer and the client to testify as to matterslearned in their professional capacity
( Exceptions:
Actions brought by client against his attorneyCommunications made in presence of
third persons
Communications regarding an intended crime
( General Rule: Lawyer may not invoke the privilege and refuse todivulge the name
of his client
Exception:
If there is a probability that the revealing the clients name wouldimplicate the
client to the activity for which he sought the lawyersadvice;

The disclosure would open the client to civil liability;

Where the identity is intended to be confidential( Privilege not confined to verbal or
written communications, butextends to all information communicated by the client
to the attorneyby other means, such as when the attorney is called to witness
thepreparation of a document.
5. Requisites for Physician-Patient privilege [CRANB]
The action is a Civil case
The Relation of physician-patient existed
The information was Acquired by the physician while attending to thepatient in his
professional capacity
The information was Necessary for the performance of his professional
dutyThe disclosure of the information would Blacken the reputation of thepatient
( A patients husband is not prohibited from testifying on a reportprepared by his
wifes psychiatrist since he is not the treatingphysician (although it would be
hearsay)
( A physician is not prohibited from giving expert testimony inresponse to a strictly
hypothetical question in a lawsuit involving thephysical or mental condition of a
patient he has treatedprofessionally.
6. Requisites for Priest-Penitent Privilege
Confession was made or advice given by the priest in his professionalcharacter in
the course of the discipline enjoined by the church towhich the priest or minister
belongs;The confession must be confidential and penitent in character
7. Requisites for Public Officers Privilege
Communication made to a public officer in official confidencePublic interest would
suffer by the disclosure
8. Newsmans privilege a publisher, editor, columnist or dulyaccredited reporter
cannot be compelled to disclose the source of newsreport or information appearing
in the publication which is related inconfidence, the disclosure of which is not
demanded by the security ofthe state.
Admissions and Confessions
1. Admission and Confession distinguished
Admission Confession Statement of fact which does not involve anacknowledgment
of guilt or liability Involves acknowledgment of guiltor liability May be express or
tacit Must be express May be made bythird persons, and in certain cases, are
admissible against a party Canbe made only by the party himself, and in some
cases, are admissibleagainst his co-accused NOTE: If a justification is alleged, it
ismerely an admission.
( Right against self-incrimination applies to the re-enactment ofthe crime by the
accused
2. Requisites for admissibility of an admission
Involves a matter of fact, not of law
Categorical and definite

Knowingly and voluntarily made

Adverse to the admitter's interest, otherwise, self-serving andinadmissible as
hearsay
3. Admissions and Declarations against self-interest distinguished
Admissions Declaration against Interest Need not be, though willgreatly enhance
probative weight if made against the interest of thedeclarant Must have been made
against the proprietary or pecuniaryinterest of the parties Made by the party himself
and is a primaryevidence and competent though he be present in court and ready
totestify Must have been made by a person who is either deceased orunable to
testify Can be made at any time Must have been made antelitem motam
4. Compromises
( Civil Cases: not admission of liability
( Criminal Cases: implied admission of guilt.
Except: quasi-offenses or those allowed by law to be compromised, orwhen made to
avoid risks of criminal actions against him.
( Also, offer to pay expenses occasioned by injury not admissibleas proof of civil or
criminal liability for the injury.
( A plea of forgiveness made with the knowledge, consent oracquiescence of the
accused is tantamount to an offer to compromise bythe accused.
( If the purpose of the offer is to buy peace and avoid litigation,then the offer is
inadmissible.
( As held in the case of Daggett v. Atchinson, etc. (48 Cal.2d655), it is the general
rule that evidence of precautions taken andrepairs made after the happening of the
accident is not admissible toshow a negligent condition at the time of the accident.
5. Requisites for Admission by Silence (Adaptive Admissions)
The party heard the declaration or observed the act of the other personHe must
have understood the statement or act
He was at liberty to interpose a denial
Statement was with respect to some matter affecting his rights or inwhich he was
then interested, and calling, naturally, for an answer
Facts were within his knowledge
Facts admitted or inference to be drawn from his silence is material tothe issue
The party has no right to remain silent (as held in Commonwealth v.Dravecz, 424
Pa. 582 or 227 A-2d 904)
( If private complainant in a rape case fails to rebut testimoniesof defense witnesses
that she and accused were sweethearts and thatthey had previous sexual
encounters, she is deemed to have impliedlyadmitted the truth of the facts asserted
by said witnesses.
6. Res inter alios acta alteri nocero non debet
a. First branch
( Section 20, the rights of a party cannot be prejudiced by an act,declaration or
omission of another

( EXCEPTIONS: where the third person is a partner, agent, jointowner, joint debtor or
has a joint interest with the party, or is a coconspiratoror a privy of the party, during
the existence of thepartnership, conspiracy, etc. as established by evidence other
thansuch act or declaration, or while holding title to property in relationto such
b. Second branch
( Sec. 34, evidence that one did or did not do a certain thing atone time not
admissible to prove that he did or did not do thesame/similar thing at another
time( Exceptions: [KISSHICUP] it may be received to prove a specificintent or
knowledge, identity, plan, system, scheme, habit, custom, orusage
7. Admission by a Co-Partner or Agent
Partnership, agency or joint interest is established by evidence otherthan the act or
declaration
Act or declaration is within the scope of the partnership, agency orjoint interest
Act or declaration must have been made during the existence of thepartnership,
agency or joint interest
8. Admission by Co-conspirator
( Requisites apply only to extrajudicial acts or statements, andnot to testimony
during trial
Conspiracy is shown by evidence other than the act or declaration
Admission was made during existence of the conspiracy
Admission relates to the conspiracy itself
( An extra-judicial confession of an accused is not admissible inevidence against his
co-accused when the latter had not been given theopportunity to hear him testify
and cross-examine him. Such confessionis not admissible as an Admission by coconspirator because it was madeafter the conspiracy had ended and after the
commission of the crime.
9. Admissions by Privies
Must be a relation of privity between the party and the declarant
Admission was made while declarant as predecessor in interest, whileholding title to
the property
Admission is in relation to said property
( HOWEVER, such evidence is still not admissible to contradict theterms of the
written instrument
10. Opinion of a witness
Expert special knowledge, skill experience or training
The matter to be testified to is one that requires expertise
The witness has been qualified as an expert
*It is not enough that a witness who is being presented as an expertbelongs to the
profession or calling to which the subject matter of theinquiry relates. He must
further show that he possesses specialknowledge to the question on which he
proposes to express an opinion.

Ordinary
Identity of person about whom he has adequate knowledge
Handwriting, if with sufficient familiarity
Mental sanity, if sufficiently acquainted
Impressions on emotion, behavior, condition or appearance which he hasobserved
Ordinary matters common to all men of common perception
Hearsay Rule
1. Exceptions to hearsay rule
Dying declaration ante mortem or in articulo mortis
Declaration against interest
Act or declaration against pedigree
Family reputation or traditions regarding pedigree
Common reputation
Res gestae
Entries in course of business
Entries in official records
Commercial lists and the like
Learned treatises
Court takes judicial notice; or
Testified to by an expert
Testimony or deposition at a former proceeding
( Newspaper clippings are hearsay and have no evidentiary value unless
substantiated by persons with personal knowledge of the facts.
2. Doctrine of independently relevant statements
( Independent of whether the facts stated are true, they arerelevant since they are
the facts in issue or are circumstantialevidence of the facts in issue( Not covered by
the hearsay rule
( Example: The statements or writings attributed to a person whois not on the
witness stand are being offered, not to prove the truthof the facts stated therein,
but only to prove that such statementswere actually made or such writings were
executed, or to prove thetenor thereof.
3. Requisites of Declaration Against Interest
a. Declarant dead or unable to testify
( Mere absence from jurisdiction does not make declarant unable totestify.
Exception contemplates that the declarant is dead, mentallyincompetent or
physically incapacitated
b. Declaration was against his own interest

c. Reasonable man in declarants position would not have made thedeclaration

unless he believed it to be true( Declarations by accused against his interest are
inadmissible ifdone in violation of his constitutional rights
4. Requisites of Act or Declaration about Pedigree
Declarant dead or unable to testify
Declarant is related to the person whose pedigree is in question
Made ante litem motam
Relationship between declarant and person whose pedigree is in questionshowed by
evidence other than the declaration EXCEPT if claiming fromthe declarant, where
the declaration itself is sufficient
5. Requisites of Family Reputation/Tradition regarding Pedigree
Reputation or tradition exists in family of person whose pedigree is inquestion
Reputation or tradition existed previous to the controversy
Witness testifying thereon is a surviving member of that family, byeither affinity or
consanguinity
( A persons statement as to the date of his birth and age, as helearned of these
from his parents or relatives, is an ante litem motamdeclaration of family
reputation.
6. Requisites of Common Reputation
Facts to which the reputation refers are of public or general interest
Reputation is ancient (or more than 30 years old)
Reputation must have been formed among a class of persons who were in aposition
to have some sources of information and to contributeintelligently to the formation
of the opinion
Reputation must exist ante litem motam
( HOWEVER, if the reputation concerns marriage or moral character,the requisite
that the reputation must be ancient does NOT apply
7. Requisites of Dying Declarations
a. Declaration is conscious of impending death
b. Declaration relates to the facts or circumstances pertaining tothe fatal injury or
death
Statements referring to the antecedents of the fatal encounter oropinion,
impressions, or conclusions of the declarant are notadmissible. (Professor Bautista
believes that the opinion rule isstill applicable in dying declarations.
c. Declarant would have been comptent to testify had he survived
d. Declaration is offered in a case wherein the declarants death isthe subject of the
inquiry.
Dying declarations are admissible in ANY case not only in criminal
prosecutions for homicide which was the former rule.
8. Res gestae

( 2 kinds/classes:
a. Spontaneous statements;
( Requisites:
There is a startling occurrence
Statement must relate to the circumstances of the occurrence
Statement is unconscious and unpremeditated
( Factors to be considered in determining spontaneity of statement:
Time that elapsed between occurrence and the making of the statement
Place where statement was made
Condition of the declarant when he made the statement
Presence or absence of intervening occurrences between the occurrenceand the
statement
Nature and circumstances of the statement itself
b. Verbal acts:
( Requisites:
Res gestae or principal act must be equivocal
Act material to issue
Statements must accompany equivocal act
Statements must give legal significance to equivocal act
9. Res gestae and Dying Declarations distinguished
Res Gestae Dying Declarations Statement of the killer himself after orduring the
killing, or that of a third person (e.g., victim, bystander)
Can be made only by the victim Statement may precede, accompany or bemade
after the homicidal act was committed Made only after thehomicidal attack has
been committed Justified by the spontaneity ofthe statement Trustworthiness is
based upon its being given underawareness of impending death
10. Requisites of Entries in the course of business
Entrant is deceased or unable to testify
Entries made at or near the time of the transaction to which they relate
Entries made by entrant in his professional capacity or in theperformance of a duty
Entries were made in the ordinary or regular course of business
Entrant must have been in a position to know the facts therein stated
( Heirs of Conti vs. CA - baptismal certificates are admissible as
entries in the ordinary course of business, even absent the testimony
of the officiating priest or official recorder
11. Requisites of Entries in official records

Entry was made by public officer of the Philippines or by a personespecially enjoined

by law to make such entry
Entry was made in the performance of entrants duty
Entrant must have been in a position to know the facts therein stated
( Baptismal certificates or parochial records are not public orofficial records and are
not proof of relationship or filiation of thechild baptized.
12. Entries in the course of business and Entries in official recordsdistinguished
Entries in the course of business Entries in official records
Sufficient that entrant made the entries pursuant to a duty eitherlegal, contractual,
moral or religious, or in the regular course ofbusiness or duty entrant is a public
officer in performance of duty, orif a private individual, must have acted pursuant to
a specific legalduty (specially enjoined by law) The person who made such entries
mustbe dead or unable to testify there is no such requirement foradmissibility,
precisely because the officer is excused
13. Requisites of Testimony or Deposition in former proceeding
Witness whose testimony is offered is dead or unable to testify
Party against whom the evidence is offered, or his privy, was a partyto the former
case or proceeding, judicial or administrative
Testimony or deposition relates to the same subject matter (identity ofissue)
The requirement of identity
Adverse party had opportunity to cross-examine
Testimony given during preliminary investigation where the defense hadthe
opportunity to cross-examine the unavailable witness is admissiblein the criminal
case
14. Modes of Extra-judicial Identification of Accused
Show-ups where accused alone is brought face-to-face with the witnessfor
identification
Mug shots where photographs are shown to the witness foridentification
Line-ups where a witness identifies the suspect from a group ofpersons lined up
for the purpose
( Identification will be admissible if it passes the totality ofcircumstances test which
considers the following factors:
The witness opportunity to view the criminal at the time of the crime
Witness degree of attention at that time
Accuracy of any prior description by the witness
The level of certainty demonstrated by the witness at the identification
Length of time between the crime and identification
Suggestiveness of the identification procedure
15. The SC approved an additional exception to the hearsay rule inits A.M. no. 00-407-SC approving the Proposed Rule on Examination of aChild Witness.*

( A statement made by a child describing any act or attempted actof child abuse
NOT otherwise admissible under the hearsay rule, may beadmitted in evidence in
any criminal or non-criminal proceeding subjectto the following rules:
Before such statement may be admitted, its proponent shall make knownto the
adverse party the intention to offer such statement and itsparticulars to allow him
an opportunity to object.
If the child is available
( The court shall require the child to be present at thepresentation of the hearsay
statement for cross-examination by theadverse party.
If the child is unavailable
( The fact of such circumstance must be proved by the proponent.
In ruling on the admissibility of such hearsay statement, the courtshall consider the
time, content and circumstances thereof whichprovide sufficient indicia of reliability.
It shall consider thefollowing factors:
Whether there is a motive to lie
The general character of the declarant child
Whether more than one person heard the statement
Whether the statement was spontaneous
The timing of the statement and the relationship between the declarantchild and
witness.
Cross-examination could not show the lack of knowledge of the declarantchild.
The possibility of faulty recollection of the declarant child;
The circumstances surrounding the statement are such that there is noreason to
suppose the declarant child misrepresented the involvement ofthe accused.
The child witness shall be considered unavailable in the followingsituations:
i. Is deceased, suffers from physical infirmity, lack of memory,mental illness or will
be exposed to severe psychological injury;
Is absent from the hearing and the proponent of his statement has beenunable to
procure his attendance by process or other reasonable means.
d. When the child witness is unavailable, his hearsay testimonyshall be admitted
only if corroborated by other admissible evidence.
Rule 131 Burden of Proof and Presumptions
1. Presumptions of law
May be conclusive or absolute, or disputable or rebuttable
A certain inference must be made whenever the facts appear whichfurnish the basis
of the inference
Reduced to fix rules and form a part of the system of jurisprudence
2. Presumptions of fact
A discretion is vested in the tribunal as to drawing the inference

Derived wholly and directly from the circs of the particular case bymeans of the
common experience of mankind
3. Burden of proof
( Onus probandi
( Obligation imposed upon a party who alleges the existence offacts necessary for
the prosecution of his action or defense toestablish the same by the requisite
presentation of evidence
( In civil cases, it is on the party who would be defeated if noevidence is given on
either side; in criminal cases, the prosecutionhas the burden of proof.
( Does not shift; remains on party upon whom it is imposed
( Determined by pleadings filed by party
( Effect of a legal presumption on Burden of Proof: The effect isto create the
necessity of presenting evidence to meet the prima faciecase created by the
presumption; and if no proof to the contrary isoffered, the presumption will prevail.
The legal presumption does notshoft the burden of proof. The burden of proof
remains where it is, butby the presumption, the one who has the burden is relieved,
for thetimebeing, from producing evidence in suuport of his averment, becausethe
presumption stands in place of evidence.
4. Burden of evidence
( Lies with party asserting affirmative allegations
( Shifts during trial, depending on exigencies of the case
( Determined by developments at trial or by provisions of law
(presumptions, judicial notice, admissions)
( In criminal cases, a negative fact must be proven if it is anessential element of the
crime.
( People vs. Macagaling in a charge of illegal possession offirearms, the burden is
on the prosecution to prove that the accusedhad no license to possess the same.
( People vs. Manalo in a charge for selling regulated drugs withoutauthority, it was
held that although the prosecution has the burden ofproving a negative averment
which is an essential element of the crime
(i.e. lack of license to sell), the prosecution, in view of thedifficulty of proving a
negative allegation, need only establish aprima facie case from the best evidence
obtainable. In this case, thelack of license was held to have been established by the
circumstancesthat the sale of the drug was consummated not in a drug store
orhospital, and that it was made at 10:00 PM.
Rule 132 Presentation of Evidence
1. Use immunity
( Prohibits use of the witness' compelled testimony and its fruitsin any manner in
connection with the criminal prosecution of the witness
( Where the statute grants only use immunity, merely testifyingand/or producing
evidence does not render the witness immune fromprosecution despite his
invocation of the right against selfincrimination
2. Transactional immunity

( Grants immunity to the witness from prosecution for an offense towhich his
compelled testimony related
3. When leading questions allowed
On cross
On preliminary matters
Difficulty in getting direct and intelligible answers
Unwilling or hostile witness
Adverse party or an officer, director or a corporation or partnershipwhich is an
adverse party
( A misleading question, though not objected to, will not beevidence of the fact
assumed by the improper question.
( NOTE: One who voluntarily offers a witness testimony is boundby such (i.e. cannot
impeach or contradict), except:
Hostile witness
Adverse party or rep. of adverse party
Not voluntarily offered but required by law (e.g., subscribingwitnesses to a will)
4. Impeaching witness of adverse party
Contradictory evidence from testimony in same case
Evidence of prior inconsistent statement
Evidence of bad character/general reputation for truth, honesty,integrity
Evidence of bias, interest, prejudice or incompetence
Evidence of mental, sensory derangement or defect
Evidence of conviction of an offense which affects credibility ofwitness
5. Impeaching own witness
( General Rule: Party not allowed to impeach own witness
Exceptions:
Unwilling or adverse witness so declared by the court
Witness who is also an adverse party
Witnesses required by law (e.g., subscribing witnesses to a will)
( May be impeached in all respects as if called by other party, EXCEPTby evidence of
bad moral character
( When a witness who is partly cross-examined dies, his directexamination cannot
be expunged. In People v. Seeris (99 SCRA 92), thedirect testimony of a witness
who dies before conclusion of the crosscan be stricken only insofar as not covered
by the cross. However,
Professor Bautista does not like this decision because although thecross was
substantially complete, still, the court ordered the directexamination to be stricken
out.

6. Requisites of revival of present memory

Memorandum has been written by him or under his direction; and
Written by him:
When the fact occurred or immediately thereafter; or
At any other time when the fact was fresh in his memory and he knewthat the same
was correctly recorded
7. Requisites of Revival of Past Recollection
Witness retains no recollection of the particular facts;
But he his able to swear that the record or writing correctly statedthe transaction
when made
8. Revival of present memory and Revival of past recollectiondistinguished
Present Recollection Revived Past Recollection Recorded Applies if thewitness
remembers the facts regarding his entries Applies where thewitness does not recall
the facts involved Entitled to greater weight
Entitled to lesser weight Evidence is the testimony Evidence is thewriting or record
Rule of evidence affected is competency of witness,examination of witness (laying
the predicate) Rule of evidence affectedis the best evidence rule
9. Additional modes of authenticating a private writing
Doctrine of self-authentication
( Where the facts in the writing could only have been known by thewriter
Rule of authentication by the adverse party
( Where reply of the adverse party refers to and affirms thesending and his receipt
of the letter in question, a copy of which theproponent is offering as evidence
10. Authentication not required:
Ancient document
More than 30 years old
Contains no alterations or circumstances of suspicion
Produced from a custody in which it would naturally be found if genuine
Public document or record
Notarial document acknowledged, proved or certified
Authenticity and due execution has been expressly or impliedly admitted
(e.g., actionable documents, failure to deny under oath)
( Computer printouts are inadmissible unless properly authenticatedby a witness
attesting that they came from the computer system or thatthe data stored in the
system were not and could not have been tamperedwith before the same were
printed out.
11. Handwriting: evidence of genuineness
Witness actually saw person writing the instrument

Familiar with handwriting and witness can give opinion

Comparison of questioned handwriting and admitted genuine specimens
Expert evidence
Offer and Objection
The court shall consider no evidence which has not been formallyoffered. The
purpose for which the evidence is offered must bespecified.
Exception: If there was repeated reference thereto in the course ofthe trial by
adverse partys counsel and of the court, indicating thatthe documents were part of
the prosecutions evidence.
( Two requisites must concur (People vs. Napta)
a. The document must have been duly identified by testimony dulyrecorded.
b. The document must have been incorporated to the records of thecase.
A party who has introduced evidence is not entitled as matter of rightto withdraw it
in finding that it does not answer his purpose; BUT hemay withdraw an offer of an
exhibit any time before the court haspassed on its admissibility.
Evidence offered is presumed to be admissible or competent until thecontrary has
been established.
( Thus, the opposing party must OBJECT to its introduction.
When to object
Offer Time to Object Offered orally Made immediately after the offeris made
Question propounded in the course of the oral examination of awitness Shall be
made as soon as the grounds thereof shall becomereasonably apparent Offer of
evidence in writing Shall be objected towithin 3 days after notice of the offer unless
a different period isallowed by the court.
When is a motion to strike out answer proper?
a. When the witness answered the question before the counsel has achance to
object
Where a question which is not objectionable may be followed by anobjectionable
unresponsive answer
Where a witness has volunteered statements in such a way that the partyhas not
been able to object thereto
Where a witness testifies without a question being addressed to him
Where a witness testifies beyond the ruling of the court prescribingthe limits within
which he may answer
When a witness dies or becomes incapacitated to testify and the otherparty has not
been given the opportunity to cross-examine the witness.
There must be an objection first before a motion to strike. If theparty slept on his
right to object, he cannot later on avail a motionto strike to exclude the evidence.
When is a motion to strike out improper?
A party cannot insist that competent and relevant evidence be strickenout for
reasons going to his weight, sufficiency or credibility

One cannot move to strike it out because it proves unfavorable to him

7. If court improperly excludes an otherwise admissible evidence,remedy is to
tender the excluded evidence, also known as OFFER OF PROOF:
Documentary by attaching the document or making it part of the record
Testimonial by stating the personal circumstances of witness and thesubstance of
proposed testimony
Rule 133 Weight and Sufficiency of Evidence
1. Proof beyond reasonable doubt
( Does not mean such degree of proof as, excluding possibility oferror, produces
absolute certainty
( Moral certainty only is required, or that degree of proof whichproduces conviction
in an unprejudiced mind
2. Circumstantial evidence to sustain conviction must:
More than one circumstance
Facts from which inferences are derived are proven
Combination of all circumstances such as to produce conviction beyondreasonable
doubt
3. Substantial evidence
( That amount of relevant evidence which a reasonable mind mightaccept as
adequate to justify a conclusion.
Pertinent Provisions of the Implementing Rules of the E-Commerce Act:
Chapter II Legal Recognition of Electronic Data Messages And
Electronic Documents
Section 7. Legal Recognition of Electronic Data Messages and Electronic
Documents. - Information shall not be denied validity or enforceabilitysolely on the
ground that it is in the form of an electronic datamessage or electronic document,
purporting to give rise to such legaleffect. Electronic data messages or electronic
documents shall have thelegal effect, validity or enforceability as any other
document or legalwriting. In particular, subject to the provisions of the Act and
these
Rules:
A requirement under law that information is in writing is satisfied ifthe information is
in the form of an electronic data message orelectronic document.
A requirement under law for a person to provide information in writingto another
person is satisfied by the provision of the information inan electronic data message
or electronic document.
A requirement under law for a person to provide information to anotherperson in a
specified non-electronic form is satisfied by the provisionof the information in an
electronic data message or electronic documentif the information is provided in the
same or substantially the sameform.

Nothing limits the operation of any requirement under law forinformation to be

posted or displayed in specified manner, time orlocation; or for any information or
document to be communicated by aspecified method unless and until a functional
equivalent shall havebeen developed, installed, and implemented.
Section 8. Incorporation by Reference. - Information shall not bedenied validity or
enforceability solely on the ground that it is notcontained in an electronic data
message or electronic document but ismerely incorporated by reference therein.
Section 9. Use Not Mandatory. - Without prejudice to the application of
Section 27 of the Act and Section 37 of these Rules, nothing in the Actor these Rules
requires a person to use or accept information containedin electronic data
messages, electronic documents, or electronicsignatures, but a person's consent to
do so may be inferred from theperson's conduct.
Section 10. Writing. - Where the law requires a document to be inwriting, or obliges
the parties to conform to a writing, or providesconsequences in the event
information is not presented or retained inits original form, an electronic document
or electronic data messagewill be sufficient if the latter:
Maintains its integrity and reliability; and
Can be authenticated so as to be usable for subsequent reference, inthat:
It has remained complete and unaltered, apart from the addition of
anyendorsement and any authorized change, or any change which arises inthe
normal course of communication, storage and display; and
It is reliable in the light of the purpose for which it was generatedand in the light of
all relevant circumstances.
Section 11. Original. - Where the law requires that a document bepresented or
retained in its original form, that requirement is met byan electronic document or
electronic data message if
There exists a reliable assurance as to the integrity of the electronicdocument or
electronic data message from the time when it was firstgenerated in its final form
and such integrity is shown by evidencealiunde (that is, evidence other than the
electronic data message
itself) or otherwise; and
The electronic document or electronic data message is capable of beingdisplayed to
the person to whom it is to be presented.
For the purposes of paragraph (a) above:
The criteria for assessing integrity shall be whether the informationhas remained
complete and unaltered, apart from the addition of anyendorsement and any
change which arises in the normal course ofcommunication, storage and display;
and
The standard of reliability required shall be assessed in the light ofthe purpose for
which the information was generated and in the light ofall relevant circumstances.
An electronic data message or electronic document meeting and complyingwith the
requirements of Sections 6 or 7 of the Act shall be the bestevidence of the
agreement and transaction contained therein.

Section 12. Solemn Contracts. - No provision of the Act shall apply tovary any and
all requirements of existing laws and relevant judicialpronouncements respecting
formalities required in the execution of
documents for their validity. Hence, when the law requires that acontract be in some
form in order that it may be valid or enforceable,or that a contract is proved in a
certain way, that requirement isabsolute and indispensable.
Legal Recognition of Electronic Signatures
Section 13. Legal Recognition of Electronic Signatures. An electronicsignature
relating to an electronic document or electronic data messageshall be equivalent to
the signature of a person on a written document
if the signature:
Is an electronic signature as defined in Section 6(g) of these Rules;and
Is proved by showing that a prescribed procedure, not alterable by theparties
interested in the electronic document or electronic datamessage, existed under
which:
A method is used to identify the party sought to be bound and toindicate said
partys access to the electronic document or electronicdata message necessary for
his consent or approval through theelectronic signature;
Said method is reliable and appropriate for the purpose for which theelectronic
document or electronic data message was generated orcommunicated, in the light
of all circumstances, including any relevantagreement;
It is necessary for the party sought to be bound, in order to proceedfurther with the
transaction, to have executed or provided theelectronic signature; and,
The other party is authorized and enabled to verify the electronicsignature and to
make the decision to proceed with the transactionauthenticated by the same.
The parties may agree to adopt supplementary or alternative proceduresprovided
that the requirements of paragraph (b) are complied with.
For purposes of subparagraphs (i) and (ii) of paragraph (b), thefactors referred to in
Annex 2 may be taken into account.
Section 14. Presumption Relating to Electronic Signatures. - In anyproceeding
involving an electronic signature, the proof of theelectronic signature shall give rise
to the rebuttable presumptionthat:
The electronic signature is the signature of the person to whom itcorrelates; and
The electronic signature was affixed by that person with the intentionof signing or
approving the electronic data message or electronicdocument unless the person
relying on the electronically signedelectronic data message or electronic document
knows or has notice ofdefects in or unreliability of the signature or reliance on
theelectronic signature is not reasonable under the circumstances.
Modes of Authentication
Section 15. Method of Authenticating Electronic Documents, Electronic
Data Messages, and Electronic Signatures. - Electronic documents,electronic data
messages and electronic signatures, shall beauthenticated by demonstrating,
substantiating and validating a claimedidentity of a user, device, or another entity
in an information orcommunication system.

Until the Supreme Court, by appropriate rules, shall have so provided,electronic

documents, electronic data messages and electronicsignatures, shall be
authenticated, among other ways, in the followingmanner:
The electronic signature shall be authenticated by proof that a letter,character,
number or other symbol methodology or security procedures, when applicable, were
employed or
adopted by a person and executed or adopted by such person, with theintention of
authenticating or approving an electronic data message orelectronic document;
The electronic data message or electronic document shall beauthenticated by proof
that an appropriate security procedure, whenapplicable was adopted and employed
for the purpose of verifying theoriginator of an electronic data message or
electronic document, ordetecting error or alteration in the communication, content
or storageof an electronic document or electronic data message from a
specificpoint, which, using algorithm or codes, identifying words or
numbers,encryptions, answers back or acknowledgement procedures, or
similarsecurity devices.
Section 16. Burden of Authenticating Electronic Documents or Electronic
Data Messages. - The person seeking to introduce an electronic documentor
electronic data message in any legal proceeding has the burden ofproving its
authenticity by evidence capable of supporting a findingthat the electronic data
message or electronic document is what theperson claims it to be.
Modes for Establishing Integrity
Section 17. Method of Establishing the Integrity of an Electronic
Document or Electronic Data Message. In the absence of evidence to thecontrary,
the integrity of the information and communication system inwhich an electronic
data message or electronic document is recorded orstored may be established in
any legal proceeding, among other methods
By evidence that at all material times the information andcommunication system or
other similar device was operating in a mannerthat did not affect the integrity of the
electronic document orelectronic data message, and there are no other reasonable
grounds todoubt the integrity of the information and communication system;
By showing that the electronic document or electronic data message wasrecorded
or stored by a party to the proceedings who is adverse ininterest to the party using
it; or
By showing that the electronic document or electronic data message wasrecorded
or stored in the usual and ordinary course of business by aperson who is not a party
to the proceedings and who did not act underthe control of the party using the
record.
Admissibility and Evidential Weight
Section 18. Admissibility and Evidential Weight of Electronic Data
Messages and Electronic Documents. - For evidentiary purposes, anelectronic
document or electronic data message shall be the functionalequivalent of a written
document under existing laws. In any legalproceeding, nothing in the application of
the rules on evidence shalldeny the admissibility of an electronic data message or
electronicdocument in evidence:
On the sole ground that it is in electronic form; or

On the ground that it is not in the standard written form.

The Act does not modify any statutory rule relating to theadmissibility of electronic
data messages or electronic documents,except the rules relating to authentication
and best evidence.
In assessing the evidential weight of an electronic data message orelectronic
document, the reliability of the manner in which it wasgenerated, stored or
communicated, the reliability of the manner inwhich its originator was identified,
and other relevant factors shallbe given due regard.
Section 19. Proof by Affidavit and Cross-Examination. - The mattersreferred to in
Section 12 of the Act on admissibility and evidentiaryweight, and Section 9 of the
Act on the presumption of integrity ofelectronic signatures, may be presumed to
have been established by anaffidavit given to the best of the deponents or affiants
personalknowledge subject to the rights of parties in interest to cross-examinesuch
deponent or affiant as a matter of right. Such right of crossexaminationmay likewise
be enjoyed by a party to the proceedings whois adverse in interest to the party who
has introduced the affidavit orhas caused the affidavit to be introduced.
Any party to the proceedings has the right to cross-examine a personreferred to in
Section 11, paragraph 4, and sub-paragraph (c) of theAct.
Retention of Electronic Data Message and Electronic Document
Section 20. Retention of Electronic Data Message and Electronic
Document. - Notwithstanding any provision of law, rule or regulation tothe contrary:
a. The requirement in any provision of law that certain documents beretained in
their original form is satisfied by retaining them in theform of an electronic data
message or electronic document which:
Remains accessible so as to be usable for subsequent reference;
Is retained in the format in which it was generated, sent or received,or in a format
which can be demonstrated to accurately represent theelectronic data message or
electronic document generated, sent orreceived; and,
Where applicable, enables the identification of its originator andaddressee, as well
as the determination of the date and the time it wassent or received.
The requirement referred to in paragraph (a) is satisfied by using theservices of a
third party, provided that the conditions set forth insubparagraphs (i), (ii) and (iii) of
paragraph (a) are met.
Relevant government agencies tasked with enforcing or implementingapplicable
laws relating to the retention of certain documents may, byappropriate issuances,
impose regulations to ensure the integrity,reliability of such documents and the
proper implementation of Section13 of the Act.
* The resolution came out last November 21, 2000. The rule took effect
last December 15, 2000.
REMEDIAL LAW (EVIDENCE)
MEMORY AID
Ateneo Central Bar Operations 2002