Evidence Finals

EVIDENCE
7. BURDEN OF PROOF AND BURDEN OF EVIDENCE

Q: What is burden of proof?
A: It is the duty of a party to present evidence to
establish his claim or defense by the amount of
evidence required by law (Sec. 1, Rule 131). It is also
called onus probandi.
Q: What are the two concepts of burden of proof?
A:
1.
2.
Burden of going forward Partys obligation of

producing evidence.
Burden of persuasion The burden of
persuading the trier of fact that the burdened
party is entitled to prevail.
Q: Distinguish burden of proof from burden of

evidence. (2004 Bar Question)
A:
BURDEN OF PROOF
BURDEN OF EVIDENCE
Definition
It is the duty of a party to
provide evidence at any
stage of the trial until he
has established a prima
It is the duty of a party
facie case, or the like duty
to present evidence on
of the adverse party to
the facts in issue
meet and overthrow that
necessary to establish
prima facie case thus
his claim or defense by
established. In both civil
the amount of evidence
and criminal cases, the
required by law (Sec. 1,
burden of evidence lies on
Rule 131)
the party who asserts an
affirmative allegation.
(Regalado, Vol. II, p. 817,
2008 ed.)
Whether it shifts throughout the proceedings
Does not shift as it
Shifts to the other party
remains throughout the
when one party has
entire case exactly
produced sufficient
where the pleadings
evidence to be entitled to a
originally placed it
ruling in his favor
What determines it
Generally determined by
Generally determined by
the developments at the
the pleadings filed by
trial, or by the provisions of
the party; and whoever
the substantive law or
asserts the affirmative of procedural rules which may
the issue has the burden
relieve the party from
of proof
presenting evidence on the
fact alleged
Effect of a legal presumption
It does not shift the
It creates a prima facie
burden of proof.
case and thereby sustains
However, the one who
the said burden of
has the burden of proof
evidence on the point
is relieved from the time
which it covers, shifting it
being, from introducing

evidence in support of
his averment because
the presumption stands
in the place of evidence.
(Francisco, p. 356, 1992
ed.)
to the other party. It

relieves those favored
thereby of the burden of
proving the fact presumed.
Note: The burden of proof is on the party who asserts

the affirmative of the issue at the beginning of the
case and continues on him throughout the case. Ei
incumbit probatio qui dicit, no qui negat - he who
asserts, not he who denies, must prove (Homeowners
Savings & Loan Bank v. Dailo, G.R. No. 153802, Mar.
11, 2005).
Where insanity is alleged, the burden of proof rests
upon him who alleges insanity to establish that fact
but where insanity is once proved to exist, the burden
of evidence is shifted to him who asserts that the act
was done while the person was sane (Engle v. Doe,
G.R. No. L-23317, Aug. 7, 1925).
Q: What is the test to determine where the burden

of proof lies?
A: The test is to ask which party to an action or suit
will fail if he offers no evidence competent to show
the facts averred as the basis for the relief he seeks
to obtain. If the defendant has affirmative defenses,
he bears the burden of proof as to those defenses
which he sets up in answer to the plaintiffs cause
of action (Bank of the Philippine Islands v. Spouses
Royeca, G.R. No. 176664, July 21, 2008).
Q: Who has the burden of proof?
A:
CIVIL CASE
Plaintiff
Defendant
To show the truth of his
allegations if the
If he raises an affirmative
defendant raises a
defense.
negative defense.
CRIMINAL CASE
Prosecution
Accused
When he admits the
Because of presumption
offense/crime charged
of innocence
but raises justifying,
exempting circumstances,
or absolutory causes.
Q: Who has the burden of evidence?

A:
CIVIL CASE
Plaintiff
Has to prove his
affirmative allegations in
the complaint
Defendant
Has to prove the
his counterclaim and his
affirmative defenses
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
297
UST GOLDEN NOTES 2011

CRIMINAL CASE
Prosecution
Accused
Has to prove its
Has to prove his
affirmative allegations
the Information
regarding the existence
regarding the elements
of justifying, exempting,
of the crime as well as
absolutory, or mitigating
the attendant
circumstances
circumstances
admitted the killing. (Cabuslay v. People and

Sandiganbayan, G.R. No. 129875, Sept. 30, 2005).
Q: What is the Principle of Negative Averments?
A:
GR: Negative allegations need not be proved,
whether in civil or criminal cases.
XPN: Where such negative allegations are
essential parts of the cause of action or defense
in a civil case, or are essential ingredients of the
offense in a criminal case or the defenses
thereto, negative allegations should be proved.
(Industrial Finance Corp., v.Tobias, G.R. No. L41555, July 27, 1977)
Q: What are the degrees of proof necessary to

satisfy the burden of proof?
A:
1.
2.
3.
Civil case Preponderance of evidence

Administrative case Substantial
evidence
Criminal case:
a. During preliminary investigation
Well founded belief of the fact of
commission of a crime
b. Issuance of warrant of arrest
Probable cause
c. To convict an accused Evidence of
guilt beyond reasonable doubt
d. Accused claims justifying/exempting
circumstances Clear and convincing
evidence
Q: Who has the burden of proof if the accused

seeks dismissal under the Speedy Trial Act?
A: If the accused is not brought to trial within the
time required, the Information shall be dismissed
upon motion of the accused. In such a case, the
burden of proof of supporting his motion is with the
accused (Sec. 13, R.A. 8493).
Q: Who has the burden of proof in self-defense?
A: One who invokes self-defense admits
responsibility for the killing. Accordingly, the
burden of proof shifts to the accused who must
then prove the justifying circumstance. He must
show by clear and convincing evidence that he
indeed acted in self-defense, or in defense of a
relative or a stranger. Self-defense, like alibi, is a
defense which can easily be concocted.
It is well-settled in this jurisdiction that once an
accused has admitted that he inflicted the fatal
injuries on the deceased, it is incumbent upon him
in order to avoid criminal liability, to prove the
justifying circumstance claimed by him with clear,
satisfactory and convincing evidence. He cannot
rely on the weakness of the prosecution but on the
strength of his own evidence, for even if the
evidence of the prosecution were weak it could not
be disbelieved after the accused himself had
298
XPN to the XPN: In civil cases, even if the

negative allegation is an essential part of the
cause of action or defense, it does not have to
be proved if it is only for the purpose of denying
the existence of a document which should
properly be in the custody of the adverse party.
(Regalado, Vol. II, p. 818, 2008 ed.)
8. PRESUMPTIONS
Q: What are matters which need not be proved?
A:
1.
2.
3.
4.
Facts admitted or not denied provided they

have been sufficiently alleged (Sec. 11,
Rule 8);
Agreed and admitted facts (Sec. 4, Rule
129);
Facts subject to judicial notice (Sec. 3,
Rule 129); and
Facts legally presumed (Secs. 2 & 3, Rule
131).
Q: What is presumption?
A: It is an assumption of fact resulting from a rule of
law, which requires such fact to be assumed from
another fact or group of facts found or otherwise
established in the action (Blacks, 5thEd., 1067 citing
Uniform Rule 12; NJ evidence Rule 13). It is an
inference of the existence or non-existence of a fact
which courts are permitted to draw from the proof
of other facts. (In the matter of the Intestate Estates
of Delgado and Rustia, G.R. No. 175733, Jan. 27,
2006)
Note: A presumption shifts
forward with the evidence. It
against whom it is directed
forward with evidence to
presumption.
the burden of going

imposes on the party
the burden of going
meet or rebut the
REMEDIAL LAW TEAM:

ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
EVIDENCE
Q: Distinguish the classes of presumptions.
in derogation of the deed, or from denying

the truth of any material fact asserted in the
deed e.g. 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 [Sec. 2
(par. b)]
A:
PRESUMPTION OF FACT
(Praesumptiones
Hominis)
It is a deduction which
reason draws from the
facts proved without an
express direction from
law to that effect.
A certain inference must

be made whenever the
facts appear which
furnish the basis of the
inference
Note: Estoppel may attach even though the landlord

does not have title at the commencement of the
relations. It may inure in favor of the successor.
Discretion is vested in the

tribunal as to drawing the
inference
If the title asserted is one that is alleged to have been

acquired subsequent to the commencement of that
relation, the presumption will not apply.
Reduced to fixed rules

and form a part of the
system of jurisprudence
Derived wholly and

directly from the
circumstances of the
particular case by means
of the common
experience of mankind
Q: What are the requisites for a party to be

estopped?
PRESUMPTION OF LAW
(Praesumptiones Juris)
It is a deduction which
the law expressly directs
to be made from
particular facts.
Need not be pleaded or

proved if the facts on
which they are based are
duly averred and
established
A:
1.
Has to be pleaded and

proved
2.
Q: What are the kinds of presumptions of law?
3.
A:
1.
2.
Conclusive presumptions (presumptions juris

et de jure)
Disputable presumptions (presumptions juris
tantum)
a. CONCLUSIVE PRESUMPTIONS
Q: What are the requisites before estoppel can be

claimed?
A:
Q: What is a conclusive presumption?
1.
A: Conclusive presumptions are those which are not

permitted to be overcome by any proof to the
contrary.
2.
Q: What are
presumptions?
the
classes
of
conclusive
A:
1.
2.
Estoppel in pais Whenever a party has, by

his own declaration, act or omission,
intentionally and deliberately led another to
believe a particular thing to 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 [Sec. 2,
(par. a)].
Conduct amounting to false representation

or concealment of material facts; or at least
calculated to convey the impression that the
facts are otherwise than, and inconsistent
with, those which the party subsequently
attempts to assert;
Intent, or at least, expectation, that this
conduct shall be acted upon by, or at least
influence, the other party; and
Knowledge, actual or constructive, of the
real facts. (Riano, Evidence: A Restatement
for the Bar, p. 431, 2009 ed.)
3.
Lack of knowledge and of the means of

knowledge of the truth as to the facts in
question;
Reliance, in good faith, upon the conduct or
statements of the party to be estopped; and
Action or inaction based thereon of such
character as to change the position or status
of the party claiming the estoppel, to his
injury, detriment or prejudice. (Kalalo v. Luz,
G.R. No. L-27782, July 31, 1970)
b. DISPUTABLE PRESUMPTIONS
Q: What are disputable presumptions?

A: Those which are satisfactory if uncontradicted,
but may be contradicted and overcome by other
evidence. (Sec. 3, Rule 131)
Estoppel by deed A party to a property

deed is precluded from asserting, as against
another party to the deed, any right or title

299

Q: What are the disputable presumptions under
Section 3 of Rule 130?
A:
1.
2.
Unlawful act is done with an unlawful intent.
3.
Person intends the ordinary consequences of

his voluntary act.
4.
Person takes ordinary care of his concerns.

Note: All people are sane and normal and moved
by substantially the same motives. When of age
and sane, they must take care of themselves.
Courts operate not because one person has been
defeated or overcome by another but because
that person has been defeated or overcome
illegally. There must be a violation of the law
(Vales v. Villa, G.R. No. 10028, Dec. 16, 1916).
Evidence willfully suppressed would be adverse

if produced.
The requisites for the presumption to apply
are:
a. The evidence is material;
b. The party had the opportunity to produce
it; and
c. The evidence is available only to the said
party.
The presumption will not be applicable when:
a. Suppression of evidence is not willful;
b. Evidence suppressed or withheld is
merely corroborative or cumulative;
c. Evidence is at the disposal of both parties;
and
d. Suppression is by virtue of an exercise of
privilege.
Note: Failure of the prosecution to present a
certain witness and to proffer a plausible
explanation does not amount to willful
suppression of evidence since the prosecutor has
the discretion/prerogative to determine the
witnesses he is going to present (People v.
Jalbuena, G.R. No. 171163, July 4, 2007).
6.
7.
300
8.
Obligation delivered up to the debtor has been

paid.
9.
Prior rents or installments had been paid when

a receipt for the later ones is produced.
A person is innocent of a crime or wrong.

Note: It applies to both civil and criminal cases.
Presumption of innocence of the accused
accompanies him until the rendition of
judgement and disappears after conviction, such
that upon appeal, the appellate court will then
presume the guilt of the accused.
5.
the latter.
Money paid by one to another was due to the

latter.
Thing delivered by one to another belonged to
10. A person found in possession of a thing taken

in the doing of a recent wrongful act is the
taker and doer of the whole act; otherwise,
that things which a person possesses or
exercises acts of ownership over, are owned
by him.
Note: Presumption of possession of stolen goods
arises once the prosecution is able to prove that a
certain object has been unlawfully taken, and
that the accused is in possession of the object
unlawfully taken. Presumption of innocence
disappears and presumption of guilt takes place.
11. Person in possession of an order on himself for

the payment of the money or the delivery of
anything has paid the money or delivered the
thing accordingly.
12. Person acting in public office was regularly
appointed or elected to it.
Ratio: It would cause great inconvenience if in
the first instance strict proof were required of
appointment or election to office in all cases
where it might be collaterally in issue.
13. Official duty has been regularly performed.

Note: All things are presumed to have been done
regularly and with due formality until the
contrary is proved (Omnia praesumuntur rite et
solemniter esse acta donec probetur in
contrarium). An adverse presumption may arise
where the official act in question appears
irregular on its face. This presumption extends to
persons who have been appointed pursuant to a
local or special statute to act in quasi-public or
quasi-official capacities and to professionals like
lawyers and surgeons.
Ratio:
a. Innocence and not wrongdoing is to be
presumed;
b. An official oath will not be violated; and
c. A republican form of government cannot
survive long unless a limit is placed upon
controversies and certain trust and
confidence reposed in each governmental
department or agent at least to the extent
of such presumption.
GR: Presumption applies to both civil as well as

criminal cases.
REMEDIAL LAW TEAM:

EVIDENCE
XPN: Petition for writ of amparo

presumption may not be invoked by the
respondent public officer or employee (Rule on
the Writ of Amparo, A.M. No. 17-9-12-SC).
14. A court or judge acting as such, whether in the
Philippines or elsewhere, was acting in the
lawful exercise of jurisdiction.
Note: Lawful exercise of jurisdiction is presumed
in all cases, be it superior or inferior courts,
whether in the Philippines or elsewhere, unless
the record itself shows that jurisdiction has not
been acquired or the record itself shows the
absence of jurisdiction, in which case jurisdiction
to render a judgment may not be presumed.
15. All the matters within an issue raised in a case

were laid before the court and passed upon by
it; all matters within an issue raised in a
dispute submitted for arbitration were laid
before arbitrators and passed upon by them.
16. Private transactions have been fair and
regular.
Note: Presumption that all men act fairly,
honestly and in good faith, and that an individual
intends to do right rather than wrong and intends
to do only what he has the right to do.
17. Ordinary course of business has been followed.

Note: Persons engaged in a given trade or
business are presumed to be acquainted with the
general customs, usages and other facts
necessarily incident to the proper conduct of the
business.
absence of 10 years is required; and if he

disappeared after the age of 75, absence of
only 5 years is sufficient. The following shall be
considered dead for all purposes including the
division of estate among the heirs:
a.
b.
c.
d.
Person on board a vessel lost during a sea

voyage, or an aircraft which is missing,
who has not been heard of for 4 years
since the loss of the vessel or aircraft;
Member of the armed forces who has
taken part in armed hostilities, and has
been missing for 4 years;
Person who has been in danger of death
under other circumstances and whose
existence has not been known for 4 years;
If a married person has been absent for 4
consecutive years, the spouse present
may contract a subsequent marriage if he
or she has well-founded belief that the
absent spouse is already dead; 2 years in
case of disappearance where there is
danger of death under the circumstances
hereinabove provided. Before marrying
again, the spouse present must institute a
summary proceeding as provided in the
Family Code and in the rules for
declaration of presumptive death of the
absentee, without prejudice to the effect
of re-appearance of the absent spouse.
24. Acquiescence resulted from a belief that the

thing acquiesced in was conformable to the
law or fact.
18. There was a sufficient consideration for a

contract.
25. Things have happened according to the

ordinary course of nature and ordinary habits
of life.
19. Negotiable instrument was given or indorsed

for a sufficient consideration.
26. Persons acting as co-partners have entered

into a contract of co-partnership.
20. An endorsement of negotiable instrument was

made before the instrument was overdue and
at the place where the instrument is dated.
27. A man and woman deporting themselves as

husband and wife have entered into a lawful
contract of marriage.
21. A writing is truly dated.
28. Property acquired by a man and a woman who

are capacitated to marry each other and who
live exclusively with each other as husband
and wife without the benefit of marriage or
under void marriage, has been obtained by
their joint efforts, work or industry.
22. Letter duly directed and mailed was received in

the regular course of the mail.
Note: For this presumption to arise, it must be
proved that the letter was properly addressed
with postage pre-paid and that it was actually
mailed.
23. Absentee of 7 years, it being not known

whether or not he is still alive, is considered
dead for all purposes except for succession.
For the purpose of opening his succession, an
29. In cases of cohabitation by a man and a

woman who are not capacitated to marry each
other and who have acquired properly through
their actual joint contribution of money,
property or industry, such contributions and

301

their corresponding shares including joint
deposits of money and evidences of credit are
equal.
30. If the marriage is terminated and the mother
contracted another marriage within 300
hundred days after such termination of the
former marriage, these rules shall govern in
the absence of proof to the contrary:
a.
Presumptions of paternity:
A child born before 180 days after the
subsequent marriage is conceived during the
former marriage, provided it is born within 300
days after the termination of the former
b.
marriage.
A child born after 180 days following the
subsequent marriage is considered to have
been conceived during the subsequent
marriage, even though it be born within the
300 days after the termination of the former
marriage.
Note: There is no presumption of legitimacy or
illegitimacy when a child is born after 300 days
following dissolution of marriage or the
separation of the spouses. Whoever alleges the
legitimacy or illegitimacy of such child must prove
his allegation (Sec. 4).
no presumption
subsequent marriage
termination of
1st marriage
300 days after

termination of 1st
marriage
180 days after the

subsequent marriage
no presumption of
legitimacy or illigitimacy
conceived during the
subsequent marriage
conceived during the
former marriage
termination of
1st marriage
subsequent marriage
180 days after the

subsequent marriage
31. A thing once proved to exist continues as long

as is usual with things of that nature.
32. The law has been obeyed.
33. A printed or published book, purporting to be
printed or published by public authority, was so
printed or published.
34. A printed or published book, purporting to
contain reports of cases adjudged in tribunals
of the country where the book is published,
contains correct reports of such cases.
35. A trustee or other person whose duty it was to
convey real property to a particular person has
actually conveyed it to him when such
presumption is necessary to perfect the title of
302
300 days after termination of 1st

marriage
such person or his successor in interest.

36. Except for purposes of succession, when 2
persons perish in the same calamity, and it is
not shown who died first, and there are no
particular circumstances from which it can be
inferred, the survivorship is determined from
the probabilities resulting from the strength
and age of the sexes, according to the
following rules:
First Person
Second Person
Presumed To
Have Survived
< 15 yrs old
< 15 yrs old
older
> 60 yrs old
> 60 yrs old
younger
< 15
> 60 yrs old
< 15
REMEDIAL LAW TEAM:

EVIDENCE
>15 and < 60
male
>15 and < 60

female
The male
>15 and < 60

female
>15 and < 60

female
The older
< 15 or > 60
15-60
The one
between those
ages
37. That if there is a doubt, as between two or

more persons who are called to succeed each
other, as to which of them died first, whoever
alleges the death of one prior to the other,
shall prove the same; in the absence of proof,
they shall be considered to have died at the
same time. (Sec. 3).
9. LIBERAL CONSTRUCTION OF THE RULES OF
EVIDENCE
Q: How are the rules on evidence construed?
A: The rules of evidence must be liberally
construed. (Section 6, Rule 1) The Rules of
Procedure are mere tools intended to facilitate
rather than to frustrate the attainment of justice. A
strict and rigid application of the rules must always
be eschewed if it would subvert their primary
objective of enhancing substantial justice.
A: The doctrine refers to a situation where the

evidence of the parties are evenly balanced or there
is doubt on which side the evidence preponderates.
In such case the decision should be against the
party with the burden of proof (Marubeni Corp. v.
Lirag, G.R. No. 130998, Aug. 10, 2001).
Burden of proof is 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 (Sec. 1, Rule 131).
The Constitution provides that no person shall be
deprived of life, liberty or property without due
process of law, nor shall any person be denied the
equal protection of the law (Sec. 1, Art. Ill). In a
criminal case, its constitutional basis is the presumption of innocence and the requirement of
proof beyond reasonable doubt for conviction.
(1995 Bar Question)
In criminal cases, the equipoise rule provides that
where the evidence is evenly balanced, the
constitutional presumption of innocence tilts the
scales in favor of the accused. (Malana v. People,
G.R. No. 173612, Mar. 26, 2008)
Q: What is the hierarchy of quantum of evidence?
A:
Procedural rules myst be liberally interpreted and

applied so as not to frustrate substantial justice
(Quiambao vs. Court of Appeals, 454 SCRA 17,
March 28, 2005). However, to justify relaxation of
the rules, a satisfactory explanation and a
subsequent fulfillment of the requirements have
always been required (Barcenas vs Tomas, 454
SCRA 593, March 31, 2005).
10. QUANTUM OF EVIDENCE (WEIGHT AND
SUFFICIENCY OF EVIDENCE) (RULE 133)
Q: Define weight of evidence.
A: It is the probative value given by the court to
particular evidence admitted to prove a fact in
issue.
Q: When is evidence credible?
A: It is credible if it is admissible and believable and
worthy of belief, such that it can be used by the
courts in deciding a case.
Q: Explain the Equipoise Doctrine in the law of evidence and cite its constitutional and procedural
bases.
Note: Evidence, to be worthy of credit, must not only

proceed from a credible source but must also be

303

credible in itself. It must be natural, reasonable and
probable as to make it easy to believe (People v.
Peruelo, G.R. No. 50631, June 29, 1981).
Q: Distinguish positive testimony from negative

testimony.
A:
POSITIVE TESTIMONY
1.
2.
3.
4.
5.
Affirms that a fact did or

did not occur.
1.
Entitled to greater weight
since
the
witness
represents his personal
2.
knowledge
of
the
3.
presence or absence of a
fact.
When a witness declares
of his own knowledge
that a fact did not take
place, it is an affirmation
of a positive testimony.
NEGATIVE TESTIMONY
When a witness states

that he did not see or
know the occurrence of a
fact.
There is a total disclaimer
of personal knowledge,
hence
without
any
representation
or
disavowal that the fact in
question could or could
not have existed or
happened.
A:
1. Where the identity of the assailant is in
question;
2. To determine the voluntariness of the
criminal act or the sanity of the accused;
3. To determine from which side the unlawful
aggression commenced, as where the
accused invoked self-defense wherein
unlawful aggression on the part of his
opponent is an essential element;
4. To determine the specific nature of the
crime committed;
5. To determine whether a shooting was
intentional or accidental, the fact that the
accused had personal motives to shoot the
victim being weighty; and
6. Where the accused contends that he acted
in defense of a stranger, since it is essential,
for such defense to prosper, that the
accused was not induced by revenge,
resentment or other evil motive. (Regalado,
Vol. II, pp. 893-894, 2008 ed.)
Q: What is alibi?
Note: Mere denial, if unsubstantiated by clear and

convincing evidence, has no weight in law and cannot
be given greater evidentiary value than the positive
testimony of the complaining witness. Denial is
intrinsically weak, being a negative and self-serving
assertion (People v. Rodas, G.R. No. 175881, Aug. 28,
2007).
Q: What are the guidelines in the assessment of

credibility of a witness?
A:
1.
2.
A witness who testified in clear, positive

and convincing manner and remained
consistent in cross-examination is
a
credible witness (People v. Comanda, G.R.
No. 175880, July 6, 2007); and
Findings of fact and assessment of
credibility of a witness are matters best
left to the trial court that had the frontline opportunity to personally evaluate
the demeanor, conduct, and behavior of
the witness while testifying (Sps. Paragas
v. Heirs of Balacano, G.R. No. 168220,
Aug. 31, 2005).
Q: What is motive?
A: It is the moving power which impels one to
action for a definite result (The Revised Penal Code
[Book One] by L. Reyes, p.57, 2001 ed.).
Q: When is evidence of motive relevant?
304
A: It is a defense where an accused claims that he

was somewhere else at the time of the commission
of the offense. It is one of the weakest defenses an
accused may avail because of the facility with which
it can be fabricated, just like a mere denial (People
v. Esperanza, G.R. Nos. 139217-24, June 27, 2003).
A categorical and positive identification of an
accused, without any showing of ill-motive on the
part of the eyewitness testifying on the matter,
prevails over an alibi (People v. Gingos and
Margote, G.R. No. 176632, Sept. 11, 2007). When
this is the defense of the accused, it must be
established by positive, clear and satisfactory
evidence.
Note: For the defense of alibi to prosper, the accused
must show that:
1. He was somewhere else; and
2. It was physically impossible for him to be at
the scene of the crime at the time of its
commission. (People v. Gerones, et.al., G.R.
No. L-6595, Oct. 29, 1954)
Q: What is Out-of-Court Identification?

A: It is a means of identifying a suspect of a crime
and is done thru:
1. Show-ups: where the suspect alone is
brought face to face with the witness for
identification;
2. Mug shots: where photographs are shown
to the witness to identify the suspect; or
REMEDIAL LAW TEAM:

EVIDENCE
3.
Line-ups: where a witness identifies the

suspect from a group of persons lined up for
the purpose. (People v. Claudio Teehankee,
Jr., G.R. Nos. 111206-08, Oct. 6, 1995)
Q: What is the relevance of an eyewitness

identification?
matters is not the number of witnesses but the

credibility and the nature and quality of their
testimonies. The testimony of a lone witness is
sufficient to support a conviction if found positive
and credible (Ceniza-Manantan v. People, G.R. No.
156248, Aug. 28, 2007).
Q: Define res ipsa loquitur.
A: It is often decisive of the conviction or acquittal

of an accused. Identification of an accused through
mug shots is one of the established procedures in
pinning down criminals. However, to avoid charges
of impermissible suggestion, there should be
nothing in the photograph that would focus
attention on a single person (People v. Villena, G.R.
No. 140066, Oct. 14, 2002).
Q: Is a police line-up mandatory to prove the
identity of an offender?
A: A police line-up is merely a part of the
investigation process by police investigators to
ascertain the identity of offenders or confirm their
identification by a witness to the crime. Police
officers are not obliged to assemble a police line-up
as a condition sine qua non to prove the identity of
an offender. If on the basis of the evidence on
hand, police officers are certain of the identity of
the offender, they need not require any police lineup anymore (Tapdasan, Jr. v. People, G.R. No.
141344, Nov. 21, 2002).
Q: When is out-of-court identification admissible
and reliable?
A: It is admissible and reliable when it satisfies the
totality of circumstances test. Under the totality
of circumstances test, the following factors are
considered:
1. Witness opportunity to view the criminal
at the time of the crime;
2. Witness degree of attention at that time;
3. Accuracy of any prior description given by
the witness;
4. Level of certainty demonstrated by the
witness at the identification;
5. Length of time between the crime and the
identification; and
6. Suggestiveness of the identification
procedure. (People v. Claudio Teehankee,
Jr., G.R. Nos. 111206-08, Oct. 6, 1995)
Q: Is the testimony of only one witness sufficient
to convict the accused?
A: It literally means the thing speaks for itself. This

doctrine provides that the fact of the occurrence of
an injury, taken with the surrounding
circumstances, may permit an inference or raise a
presumption of negligence, or make out a plaintiff's
prima facie case, and present a question of fact for
defendant to meet with an explanation. Where the
thing which caused the injury complained of is
shown to be under the management of the
defendant or his servants and the accident is such
as in ordinary course of things does not happen if
those who have its management or control use
proper care, it affords reasonable evidence, in the
absence of explanation by the defendant, that the
accident arose from or was caused by the
defendant's want of care (Ramos v. CA, G.R. No.
124354, Dec. 29, 1999).
Q: What are the requisites in applying the doctrine
of res ipsa loquitur?
A:
1.
2.
3.
4.
The occurrence of an injury;

The thing which caused the injury was under
the control and management of the
defendant;
The occurrence was such that in the
ordinary course of things, would not have
happened if those who had control or
management used proper care; and
The absence of explanation by the
defendant (Professional Services, Inc. v.
Agana, G.R. No. 126297, Jan. 31, 2007).
Q: Does the application of the doctrine dispense

with the requirement of proof of negligence?
A: No. It is considered merely as evidentiary or in
the nature of procedural rule. It is simply in the
process of such proof, permitting the plaintiff to
present enough of the attending circumstances to
invoke the doctrine, creating an inference or
presumption of negligence and thereby place on
the defendant the burden of going forward with the
proof to the contrary. (Ramos, et. al. v. CA, G.R. No.
124354, Dec. 29, 1999)
A: Yes. Truth is established not by the number of

witnesses but by the quality of their testimonies. In
determining the sufficiency of evidence, what
305
Q: What is the Rule on Partial Credibility of a

witness?
A: The testimony of a witness may be believed in
part and disbelieved in another part, depending on
the probabilities and improbabilities of the case
(People v. Tan, G.R. No. 176526, Aug. 8, 2007).
Note: If the testimony of the witness on a material
issue is willfully false and given with an intention to
deceive, the court may disregard all the witness
testimony. Falsus in uno, falsus in omnibus (False in
one thing, false in everything).
Note: This is not a mandatory rule of evidence but is
applied by the courts in its discretion. It deals only with
the weight of evidence and not a positive rule of law.
The witnesses false or exaggerated statements on
other matters shall not preclude the acceptance of
such evidence as is relieved from any sign of
falsehood. The court may accept and reject portions of
the witness testimony depending on the inherent
credibility thereof. (Regalado, Vol. II, p. 883, 2008 ed.)
Q: May the trial courts findings as to the

credibility of witnesses be disturbed on appeal?
A: The trial courts findings of fact will not be
disturbed on appeal, unless there is a clear showing
that it plainly overlooked matters of substance
which, if considered, might affect the results of the
review. The credibility of witnesses is best
determined by the trial judge, who has the direct
opportunity to observe and evaluate their
demeanor on the witness stand.
(People v.
Pacuancuan, G.R. No. 144589, June 16, 2003).
Q: May the uncorroborated testimony of an
accused who turned into a State witness suffice to
convict his co-accused?
A: Yes. It may suffice to convict his co-accused if it is
given unhesitatingly and in a straightforward
manner and is full of details which by their nature
could not have been the result of deliberate
afterthought, otherwise, it needs corroboration, the
presence or lack of which may ultimately decide the
case of the prosecution and the fate of the accused
(People v. Sunga, G.R. No. 126029, Mar. 27, 2003).
Q: May the testimony alone of the complaining
party in a rape case sufficient to convict the
accused?
A: Yes. In rape cases, the lone testimony of the
offended party, if free from serious and material
contradictions, is sufficient to sustain a verdict of
conviction. No woman would openly admit that she
306
was raped and consequently subject herself to an

examination of her private parts, undergo the
trauma and humiliation of a public trial, and
embarrass herself with the need to narrate in detail
how she was raped, if she was not raped at all. This
ruling especially holds true where the complainant
is a minor, whose testimony deserves full credence.
(People v. Esperanza, G.R. Nos. 139217-24, June 27,
2003).
Q: What is the Sweetheart Theory?
A: It is an admission by the accused of sexual
intercourse with the victim but argues that they
were lovers and the act is consensual and
consequently places on the accused the burden of
proving the supposed relationship by substantial
evidence. To be worthy of judicial acceptance, such
defense should be supported by documentary,
testimonial, or other evidence. Corroborative proof
like notes, pictures or tokens that such a
relationship had really existed must be presented
(People v. Hapin, G.R. No.175782, Aug. 24, 2007).
Q: Is extrajudicial confession a sufficient ground
for conviction?
A: It is not sufficient ground for conviction unless
corroborated by evidence of corpus delicti. (Sec. 3)
Q: What is corpus delicti?
A: It is the actual commission by someone of the
particular crime charged. It refers to the fact of the
commission of the crime, not to the physical body
of the deceased or to the ashes of a burned
building. The corpus delicti may be proven by the
credible testimony of a sole witness, not necessarily
by physical evidence (Rimorin v. People, G.R. No.
146481, Apr. 30, 2003).
Q: What are the elements of corpus delicti?
A:
1.
2.
Proof of the occurrence of a certain

event; and
A persons criminal responsibility for the
act (People v. Corpuz, G.R. No. 148919,
Dec. 17, 2002).
Note: The identity of the accused is not a necessary

element of the corpus delicti.
Q: What are the elements of illegal possession of

firearm which constitute the corpus delicti?
A:
1.
2.
The existence of the firearm; and

That it has been actually held with animus
possidendi by the accused without the
REMEDIAL LAW TEAM:

EVIDENCE
corresponding license therefor. (People v.
Solayao, G.R. No. 119220, Sept. 20, 1996)
6. Their personal credibility so far as the same

may legitimately appear upon the trial; or
7. The number of witnesses, though the
preponderance is not necessarily with the
greater number (Sec. 1, Rule 133).
a. PROOF BEYOND REASONABLE DOUBT

Q: What is meant by reasonable doubt?
c. SUBSTANTIAL EVIDENCE
A: It is that state of the case which, after the entire
comparison and consideration of all the evidence
leaves the mind of the judge in that condition that
he cannot say that he feels an abiding conviction to
a moral certainty of the truth of the charge. (People
v. Calma, G.R. No. 127126, Sept. 17, 1998)
Q: What is substantial evidence?

A: It is that amount of relevant evidence which a
reasonable mind might accept as adequate to
justify a conclusion. (Sec. 5)
Q: What does proof beyond reasonable doubt

require?
Q: When is substantial evidence sufficient to

establish a fact?
A: It only requires moral certainty or that degree of

proof which produces conviction in an unprejudiced
mind. It does not mean such degree of proof as
excluding the possibility of error, produce absolute
certainty. (Basilio v. People, G.R. No. 180597, Nov.
7, 2008)
A: In cases filed before administrative or quasijudicial bodies, a fact may be deemed established if
it is supported by substantial evidence.
Q: Must the identity of the accused be proved

beyond reasonable doubt?
A: Yes. When the identity of the accused is not
established beyond reasonable doubt, acquittal
necessarily follows. Conviction for a crime rests on
the strength of the prosecutions evidence, never
on the weakness of that of the defense.
Note: In every criminal prosecution, the prosecution
must prove two things:
1. The commission of the crime; and
2. The identification of the accused as the
perpetrator of the crime. What is needed is
positive identification made with moral certainty
as to the person of the offender (People v.
Maguing, G.R. No. 144090, June 26, 2003).
b. PREPONDERANCE OF EVIDENCE
Q: What are the matters that must be taken into
consideration in determining where the
preponderance of evidence lies?
A:
1. All the facts and circumstances of the case;
2. The witnesses manner of testifying, their
intelligence, their means and opportunity of
knowing the facts to which there are
testifying;
3. The nature of the facts to which they
testify;
4. The probability or improbability of their
testimony;
5. Their interest or want of interest;
d. CLEAR AND CONVINCING EVIDENCE

Q: What are the instances when clear and
convincing evidence is required as quantum of
proof?
A:
1. Granting or denial of bail in extradition
proceedings (Government of Hong Kong
Special Administrative Region v. Olalia, Jr.,
G.R. No. 153675, April 19, 2005);
2. When proving a charge of bias and partiality
against a judge (Rivera v. Mendoza, A.M.
No. RTJ-06-2013, Aug. 4, 2006);
3. GR: When proving fraud (Alonso v. Cebu
Country Club, Inc., G.R. No. 130876, Dec. 5,
2003)
XPN: Under Art. 1387 of the New Civil Code,
certain alienations of property are
presumed fraudulent.
4. When proving forgery (Citibank, N.A. v.
Sabeniano, G.R. No. 156132, Feb. 6, 2007);
5. When proving ownership over a land in
annulment or reconveyance of title
(Manotok Realty, Inc. v. CLT Realty
Development Corp., G.R. No. 123346, Dec.
14, 2007);
6. When invoking self-defense, the onus is on
the accused-appellant to establish by clear
and convincing evidence his justification for
the killing (People v. Tomolin, G.R. No.
126650, July 28, 1999);
7. When proving the allegation of frame-up
and extortion by police officers in most
dangerous drug cases (People v. Boco, G.R.
No. 129676, June 23, 1999);

307

8. When proving physical impossibility for the
accused to be at the crime scene when
using alibi as a defense (People v. Cacayan,
G.R. No.180499, July 9, 2008);
9. When using denial as a defense like in
prosecution for violation of the Dangerous
Drugs Act (People v. Mustapa, G.R. No.
141244, Feb. 19, 2001);
10. To overcome the presumption of due
execution of notarized instruments (Viaje v.
Pamintel, G.R. No. 147792, Jan. 23, 2006);
11. When proving bad faith to warrant an
award of moral damages (Resolution of the
SC in Cual v. Leonis Navigation, G.R. No.
167775, Oct. 10, 2005);
12. When proving that the police officers did
not properly perform their duty or that they
were inspired by an improper motive
(People v. Concepcion, G.R. No. 178876,
June 27, 2008); or
13. When a person seeks confirmation of an
imperfect or incomplete title to a piece of
land on the basis of possession by himself
and his predecessors-in-interest, he must
prove with clear and convincing evidence
compliance with the requirements of the
applicable law. (Republic v. Imperial Credit
Corp., G.R. No. 173088, June 25, 2008) (List
of cases: Riano, Evidence: A Restatement for
the Bar, pp. 422-426, 2009 ed.)
B. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
1. WHAT NEED NOT BE PROVED
Q: What are the facts that need not be proved?
A:
1. Those which the courts may take judicial
notice (Rule 129);
2. Those that are judicially admitted (Rule
129);
3. Those that are conclusively presumed (Rule
131); and
4. Those that are disputably presumed but
uncontradicted (Rule 131).
2. MATTERS OF JUDICIAL NOTICE
Q: What are the requisites of judicial notice?

A:
1. The matter must be one of common and
general knowledge;
2. It must be well and authoritatively settled
and not doubtful or uncertain; and
3. It must be one which is not subject to a
reasonable dispute in that it is either:
a. Generally known within the territorial
jurisdiction of the trial court; or
b. Capable of accurate and ready
determination by resorting to sources
whose accuracy cannot reasonably be
questionable (Expertravel & Tours, Inc.
v. CA, G.R. No. 152392, May 26, 2005).
Note: The principal guide in determining what facts
may be assumed to be judicially known is that of
notoriety (Ibid.). The test of notoriety is whether the
fact involved is so notoriously known as to make it
proper to assume its existence without proof.
Q: When is a matter considered common

knowledge?
A: They are those matters coming to the knowledge
of men generally in the course of ordinary
experiences of life, or they may be matters which
are generally accepted by mankind as true and are
capable of ready and unquestioned demonstration.
Note: Thus, facts which are universally known, and
which may be found in encyclopedias, dictionaries or
other publications, are judicially noticed, provided,
they are of such universal notoriety and so generally
understood that they may be regarded as forming part
of the common knowledge of every person. A court
however cannot take judicial notice of any fact which,
in part, is dependent on the existence or non-existence
of a fact of which the court has no constructive
knowledge (Expertravel & Tours, Inc. v. CA, G.R. No.
152392, May 26, 2005).
Q: In discretionary judicial notice, when is

hearing necessary?
Q: What is judicial notice?

A: It is the cognizance of certain facts which judges
may properly take and act upon without proof
because they are supposed to be known to them. It
is based on considerations of expediency and
convenience. It displaces evidence, being
equivalent to proof.
Note: Judicial notice fulfils the objective which the
evidence intends to achieve. It is not equivalent to
judicial knowledge or that which is based on the
308
personal knowledge of the court; rather, it is the

cognizance of common knowledge. Judicial notice
relieves the parties from the necessity of introducing
evidence to prove the fact notified. It makes evidence
unnecessary.
A:
DURING TRIAL
AFTER TRIAL BUT BEFORE

JUDGMENT OR ON
APPEAL
The court on its own

initiative, or on request
of a party, may
announce its intention
The proper court, on its

own initiative or on
request of a party, may
take judicial notice of any
REMEDIAL LAW TEAM:


of the written contract by extrinsic agreement for
the reason that there is no contract in existence.
There is nothing in which to apply the excluding
rule. Conditions subsequent may not be established
by parol evidence since a written contract already
exists.
a. APPLICATION OF THE PAROL EVIDENCE RULE
Q: What are the requisites for the application of
the parol evidence rule?
the execution of the written agreement.

(Sec. 9)
c. DISTINCTIONS BETWEEN THE BEST EVIDENCE
RULE AND PAROL EVIDENCE RULE
Q: Distinguish parol evidence rule from best
evidence rule.
A:
PAROL EVIDENCE RULE
Presupposes that the
original document is
available in court
A:
1.
2.
3.
4.
There must be a valid contract;

The terms of the agreement must be
reduced to writing;
The dispute is between the parties or their
successors-in-interest; and
There is dispute as to the terms of the
agreement.
b. WHEN PAROLE EVIDENCE CAN BE INTRODUCED

Q: What is Parol Evidence Rule?
A: It states that when the terms of an agreement
have been reduced to writing, it is considered as
containing all the terms agreed upon and there can
be, between the parties and their successors-ininterest, no evidence of such terms other than the
contents of the written agreement (Sec. 9).
Note: Parol evidence rule does not apply, and may not
properly be invoked by either party to the litigation
against the other, where at least one party to the suit
is not a party or privy of a party to the written
instrument in question and does not base a claim or
assert a right originating in the instrument of the
relation established thereby. Thus, if one of the parties
to the case is a complete stranger to the contract
involved therein, he is not bound by this rule and can
introduce extrinsic evidence against the efficacy of the
writing. (Lechugas v. CA et.al., G.R. Nos. L-39972 & L40300, Aug. 6, 1986)
Prohibits the varying of

the terms of a written
agreement
Applies only to documents

Applies to all kinds of
which are contractual in
writings
nature except wills
Can be invoked only when
the controversy is
Can be invoked by any
between the parties to the party to an action whether
written agreement, their he has participated or not
privies, or any party
in the writing involved
affected thereby like a
cestui que trust
6. AUTHENTICATION AND PROOF OF DOCUMENTS

(RULE 132)
Q: When is authentication of documents not
required?
A:
1.
2.
324
The writing is an ancient document (Sec.

21);
GR: The writing is a public document or
record (Sec. 19);
XPN: A private document required by law to
be recorded while they are public
documents, the public writing is not the
writing itself but the public record
thereof. Such recording does not make the
private writing itself a public document so
as to make it admissible without
authentication.
Q: What are the exceptions to the parol evidence

rule?
A: A party may present evidence to modify, explain
or add to the terms of the written agreement if he
puts in issue in his pleadings the following:
1. An intrinsic ambiguity, mistake or
imperfection in the written agreement;
2. Failure of the written agreement to express
the true intent of the parties thereto;
3. Validity of the written agreement; or
4. Existence of other terms agreed to by the
parties or their successors in interest after
BEST EVIDENCE RULE

The original document is
not available or there is a
dispute as to whether said
writing is original
Prohibits the introduction
of secondary evidence in
lieu of the original
document regardless of
whether or not it varies
the contents of the
original
3.
4.
The writing is a notarial document

acknowledged, proved or certified (Sec. 30);
The authenticity and due execution of the
document has been expressly admitted or
impliedly admitted by failure to deny the
same under oath; or
REMEDIAL LAW TEAM:

EVIDENCE
5.
When such genuineness and due execution

are immaterial to the issue.
of its genuineness and due

execution
authentic is received
in evidence, its due
execution
and
authenticity must be
proved either:
1.
By anyone who saw

the
document
executed or written;
or
By evidence of the
genuineness of the
signature
or
handwriting of the
maker.
a. MEANING OF AUTHENTICATION
Q: What is authentication?
A: It is proving the due execution and genuineness
of the document.
2.
Q: What is document?
A: It is a deed, instrument or other duly authorized
paper by which something is proved, evidenced or
set forth. (Bermejo v. Barrios, G.R. No. L-23614, Feb.
27, 1970)
Any other private

document need only
be identified as that
which it is claimed to
be (Sec. 20).
b. PUBLIC AND PRIVATE DOCUMENTS

Q: What are public and private documents.
A: Public documents are:
1. The written official acts, or records of the
official acts of the sovereign authority,
official bodies and tribunals, and public
officers, whether of the Philippines, or of a
foreign country;
2. Documents acknowledge before a notary
public except last wills and testaments; and
3. Public records, kept in the Philippines, of
private documents required by law to the
entered therein.
Note: All other writings are private. (Sec. 19)
Q: Distinguish the classes of documents.

A:
PUBLIC DOCUMENT
PRIVATE DOCUMENT
What comprises it
1. The written official acts,
or records of the official
acts of the sovereign
authority, official bodies
and
tribunals,
and
public officers, whether
of the Philippines, or of
a foreign country;
2. Documents
All other writings are
acknowledged before a
private (Sec. 19).
notary public except last
wills and testaments;
and
3. Public records, kept in
the
Philippines,
of
private
documents
required by law to be
entered therein (Sec.
19).
As to authenticity and admissibility as evidence
Admissible
as
evidence Before any private
without need of further proof document offered as
As to persons bound
Binds only the parties
who executed them
Evidence even against third
or
their
privies,
persons, of the fact which
insofar
as
due
gave rise to its due execution
execution and date
and to the date of the latter
of the document are
concerned
As to validity of certain transactions
Certain transactions must be
contained in a public
document; otherwise they
will not be given any validity.
Q: What are the rules in interpreting documents?

A:
1. The language of a writing is to be
interpreted according to the legal meaning
it bears in the place of its execution, unless
the parties intended otherwise.
2. Where there are several provisions or
particulars, such a construction is, if
possible, to be adopted as will give effect to
all.
3. The intention of the parties is to be pursued;
and when a general and a particular
provision are inconsistent, the latter is
paramount to the former. So a particular
intent will control a general one that is
inconsistent with it.
4. The circumstances under which it was
made, including the situation of the subject
thereof and of the parties to it, may be
shown, so that the judge may be placed in
the position of those whose language he is
to interpret.
5. The terms of a writing are presumed to
have been used in their primary and general

325

acceptation, but evidence is admissible to
show that they have a local, technical, or
otherwise peculiar signification, and were
so used and understood in the particular
instance, in which case the agreement must
be construed accordingly.
6. When an instrument consists partly of
written words and partly of a printed form,
and the two are inconsistent, the former
controls the latter.
7. When the characters in which an
instrument is written are difficult to be
deciphered, or the language is not
understood by the court, the evidence of
persons skilled in deciphering the
characters, or who understand the
language, is admissible to declare the
characters or the meaning of the language.
8. When the terms of an agreement have been
intended in a different sense by the
different parties to it, that sense is to
prevail against either party in which he
supposed the other understood it, and
when different constructions of a provision
are otherwise equally proper, that is to be
taken which is the most favorable to the
party in whose favor the provision was
made.
9.
When an instrument is equally susceptible
of two interpretations, one in favor of
natural right and the other against it, the
former is to be adopted.
10. An instrument may be construed according
to usage, in order to determine its true
character (Secs. 10-19).
c. WHEN A PRIVATE WRITING REQUIRES
AUTHENTICATION; PROOF OF A PRIVATE WRITING
Q: Is the testimony of a handwriting expert
indispensable to the examination or the
comparison of handwritings in cases of forgery?
A: No. Handwriting experts are usually helpful in
the examination of forged documents because of
the technical procedure involved in analyzing them,
but resort to these experts is not mandatory or
indispensable.
A finding of forgery does not depend entirely on the
testimonies of handwriting experts, because the
judge must conduct an examination of the
questioned signature in order to arrive at a
reasonable conclusion as to its authenticity. The
opinions of handwriting experts are not binding
upon courts, especially when the question involved
is mere handwriting similarity or dissimilarity, which
can be determined by a visual comparison of
326
specimens of the questioned signatures with those

of the currently existing ones (Pontaoe v. Pontaoe,
G.R. No. 15958, Apr. 22, 2008).
d. WHEN EVIDENCE OF AUTHENTICITY OF A
PRIVATE WRITING IS NOT REQUIRED (ANCIENT
DOCUMENTS)
Q: What are the requisites for an ancient
document to be exempt from proof of due
execution and authenticity (rule on ancient
document/authentic document rule)?
A:
1. The private document be more than 30
years old;
2. That it be produced from a custody in which
it would naturally be found if genuine; and
3. That it is unblemished by any alteration or
circumstances of suspicion (Sec. 21).
Note: Ancient document rule applies only if there are
no other witnesses to determine authenticity.
e. HOW TO PROVE GENUINENESS OF A

HANDWRITING
Q: How is the genuineness of a persons
handwriting proved?
A:
1. It may be proved by any witness who actually
saw the person writing the instrument;
2. By any person who is familiar or has acquired
knowledge of the handwriting of such person,
his opinion as to the handwriting being an
exception to the opinion rule under Secs. 48
& 50 of Rule 130;
3. By a comparison of the questioned
handwriting from the admitted genuine
specimens thereof; or
4. By expert witness (Secs. 20 & 22, Rule 132;
Sec. 49, Rule 130).
f. PUBLIC DOCUMENTS AS EVIDENCE; PROOF OF
OFFICIAL RECORD
Q: How are public records proved?
A: Written official acts, or records of the official acts
of the sovereign authority, official bodies and
tribunals, and public officers, e.g. a written foreign
law, may be evidenced by:
1. If it is within the Philippines
a. an official publication thereof; or
b. by a copy attested by the officer having
the legal custody of the record, or by his
deputy.
2. If it is kept in a foreign country
REMEDIAL LAW TEAM:

EVIDENCE
a. an official publication thereof; or
b. by a copy attested by the officer having
the legal custody of the record, or by his
deputy and accompanied with a
certificate that such officer has the
custody. The certificate may be made by
a secretary of the embassy or legation,
consul general, consul, vice consul, or
consular agent or by any officer in the
foreign service of the Philippines
stationed in the foreign country in
which the record is kept, and
authenticated by the seal of his office
(Sec. 24, Rule 132).
Q: Is a special power of attorney executed and
acknowledged before a notary public in a foreign
country authorizing a person to file a suit against
certain persons in the Philippines admissible in
evidence?
A: No, because a notary public in a foreign country
is not one of those who can issue the certificate
mentioned in Sec. 24, Rule 132 of Rules of Court.
Non-compliance with the said rule will render the
SPA inadmissible in evidence. Not being duly
established in evidence, the SPA cannot be used to
file a suit in representation of another. The failure
to have the SPA authenticated is not a mere
technicality but a question of jurisdiction. (Heirs of
Medina v. Natividad, G.R. No. 177505, Nov. 27,
2008)
Q: May a public record be removed from its office?
license to carry any firearm. The certifying officer,

however, was not presented as a witness. Is the
certification of the PNP Firearm and Explosives
Office without the certifying officer testifying on it
admissible in evidence against Lino?
A: Yes. Section 28, Rule 130 of the Rules of Court
provides that a written statement signed by an
officer having the custody of an official record or by
his deputy that after diligent search, no record or
entry of a specified tenor is found to exist in the
records of his office, accompanied by a certificate
as above provided, is admissible as evidence that
the records of his office contain no such record or
entry.
The records of the PNP Firearm and Explosives
Office are a public record. Hence, notwithstanding
that the certifying officer was not presented as a
witness for the prosecution, the certification he
made is admissible in evidence against Lino. (2003
Bar Question)
g. ATTESTATION OF A COPY
Q: What must the attestation of a copy state?
A: Whenever a copy of a document or record is
attested for the purpose of evidence, the
attestation must state, in substance:
1. That the copy is a correct copy of the original,
or a specific part thereof, as the case may be;
2. It must be under the official seal of the
attesting officer, if there be any, or if he be the
clerk of a court having a seal, under the seal of
such court.
A:
GR: No. Any public record must not be removed
from the office in which it is kept.
.
XPN: Upon order of a court where the
inspection of the record is essential to the just
determination of a pending case (Sec. 26, Rule
132).
Q: What is the probative value of documents
consisting of entries in public records?
A: They are prima facie evidence of the facts stated
therein if entered by a public officer in the
performance of a duty. All other public documents
are evidence, even against a third person, of the
fact which gave rise to their execution and of the
date of the latter (Sec. 23, Rule 132).
Q: Lino was charged with illegal possession of
firearm. During trial, the prosecution presented in
evidence a certification of the PNP Firearms and
Explosives Office attesting that the accused had no
h. PUBLIC RECORD OF A PUBLIC DOCUMENT

Q: How may a public record of a private document
be proved?
A: Any of the following:
1. By the original record; or
2. By a copy thereof, attested by the legal
custodian of the record, with an
appropriate certificate that such officer has
the custody (Sec. 27, Rule 132).
i. PROOF OF LACK OF RECORD
Q: How may the absence of a record be proven?
A: Proof of lack of record of a document consists of
written statement signed by an officer having
custody of an official record or by his deputy. The
written statement must contain the following
matters:
1. There has been a diligent search of the record;

327

2. That despite the diligent search, no record of
entry of a specified tenor is found to exist in
the records of his office.
Note: The written statement must be accompanied by
a certificate that such officer has the custody of official
records (Sec. 28, Rule 132).
j. HOW A JUDICIAL RECORD IS IMPEACHED

Q: How may a judicial record be impeached?
A: It may be impeached by evidence of:
1. Want of jurisdiction in the court or judicial
officer;
2. Collusion between the parties; or
3. Fraud in the party offering the record, in
respect to the proceedings (Sec. 29).
k. PROOF OF NOTARIAL DOCUMENTS
Q: What is the evidentiary weight given to a
notarial document?
A: Notarial documents celebrated with all the legal
requisites under a notarial certificate is evidence of
a high character, and to overcome its recitals, it is
incumbent upon the party challenging it to prove
his claim with clear, convincing and more than mere
preponderant evidence.
A notarized document carries the evidentiary
weight conferred upon it with respect to its due
execution, and it has in its favor the presumption of
regularity which may only be rebutted by evidence
so strong and convincing as to exclude all
controversy as to the falsity of the certificate.
Absent such, the presumption must be upheld. The
burden of proof to overcome the presumption of
due execution of a notarial document lies on the
one contesting the same (Pan Pacific Industrial
Sales Co. v. CA, G.R. No.125283, Aug. 9, 2005).
Q: How are notarial documents proved?
A: The document may be presented in evidence
without further proof, the certificate of
acknowledgment being prima facie evidence of the
execution of the instrument or document involved
(Sec. 30).
Note: The identification documents which may be
presented as competent evidence of identity by
signatories to documents or instruments to be
notarized include, but are not limited to, passports,
drivers licenses, Professional Regulations Commission
identification cards, NBI clearances, police clearances,
postal IDs, voters IDs, Barangay certifications, GSIS ecards, SSS cards, Philhealth cards, senior citizens
328
cards, Overseas Workers Welfare Administration

(OWWA) IDs, OFW IDs, seamans books, alien
certificate of registrations/immigrant certificate of
registrations, government office IDs, certifications
from the National Council for the Welfare of Disabled
Persons (NCWDP), and DSWD certifications.
Notaries public are prohibited from notarizing
documents or instruments of signatories who are not
personally known to them or who otherwise fail to
present competent evidence of their respective
identities (A.M. No. 02-8-13-SC, Re: 2004 Rules on
Notarial Practice, Feb. 19, 2008).
l. HOW TO EXPLAIN ALTERATIONS IN A

DOCUMENT
Q: How should documents with alterations be
presented as evidence for it to be admissible?
A: A party producing a document as genuine which
has been altered and appears to have been altered
after its execution must account for the alteration.
He may show that the alteration:
1. was made by another, without his
concurrence;
2. was made with the consent of the parties
affected by it;
3. was otherwise properly or innocently made; or
4. that the alteration did not change the meaning
or language of the instrument.
Note: Failure to do any of the above will make the
document inadmissible in evidence (Sec. 31).
m. DOCUMENTARY EVIDENCE IN AN UNOFFICIAL

LANGUAGE
Q: May a document be admitted into evidence if it
is written in an unofficial language?
A: Documents written in an unofficial language shall
not be admitted as evidence unless accompanied
with a translation into English or Filipino (Sec. 32).
E. TESTIMONIAL EVIDENCE
1. QUALIFICATIONS OF A WITNESS
Q: Who are qualified to be witnesses?
A: All persons who:
1. can perceive and perceiving;
2. can make known their perception to
others (Sec. 20, Rule 130);
3. must take either an oath or an affirmation
(Sec. 1, Rule 132; Riano, Evidence: A
Restatement for the Bar, p. 245, 2009
ed.); and
REMEDIAL LAW TEAM:

EVIDENCE
4.
must not possess the disqualifications

imposed by law or the rules (Riano,
Evidence: A Restatement for the Bar, p.
246, 2009 ed.)
NOTE: The ability to make known the perception of the

witness to the court involves two factors: (a) the ability
to remember what has been perceived; and (b) the
ability to communicate the remembered perception.
Consider a witness who has taken the oath and who
has personal knowledge of the event which he is going
to testify (Riano, Evidence: A Restatement for the Bar,
p. 248, 2009 ed).
Q: What are the qualifications of a witness?

A: A prospective witness must show that he has the
following abilities:
1. To Observe the testimonial quality of
perception;
2. To Remember the testimonial quality of
memory;
3. To Relate the testimonial quality of
narration; and
4. To Recognize a duty to tell the truth the
testimonial quality of sincerity.
Q: What cannot be considered as grounds for
disqualification?
A: GR:
1. Religious or political belief;
2. Interest in the outcome of the case; or
3. Conviction of a crime (Sec. 20).
XPN: Unless otherwise provided by law like the
following:
1. Those convicted of falsification of
document, perjury or false testimony is
prohibited from being witnesses to a will
(Art. 821, NCC).
2. Those convicted of an offense involving
moral turpitude cannot be discharged to
become a State witness (Sec. 17, Rule
119; Sec. 10, R.A. 6981).
3. Those who fall under the disqualification
provided under Secs. 21-24, Rule 130.
2. COMPETENCY VS CREDIBILITY OF A WITNESS
capacity to
communicate his
perception to others.
(Riano, 2009, p.250)
Q: What is the rule on competency of witness?

A: GR: A person who takes the witness stand is
presumed to possess the qualifications of a
witness. (Presumption of competency)
XPN: There is prima facie evidence of
incompetency in the following:
1. The fact that a person has been recently
found of unsound mind by a court of
competent jurisdiction; or
2. That one is an inmate of an asylum for the
insane.
Q: What is the void dire examination?
A: A preliminary examination conducted by the trial
judge where the witness is duly sworn to answer as
to his competency (Competency Examination).
3. DISQUALIFICATIONS OF WITNESSES
Q: Who are disqualified to be witnesses under the
rules?
A: Those who are:
1. Disqualified by reason of mental incapacity or
immaturity;
2. Disqualified by reason of marriage;
3. Disqualified by reason of death or insanity of
adverse party; and
4. Disqualified on the ground of privileged
communication:
a. Marital privilege;
b. Attorney-client privilege;
c. Doctor-patient privilege;
d. Minister-penitent privilege; or
e. Public officer as regards communications
made in official confidence.
Note: The qualifications and disqualifications of
witnesses are determined as of the time they are
produced for examination in court or at the taking of
the depositions.
Q: Distinguish competency of a witness from

credibility of a witness.
A:
Competency of a
Witness
Has reference to the
basic qualifications of a
witness as his capacity
to perceive and his
Credibility of a Witness
Refers to the believability
of the witness and has
nothing to do with the law
or the rules. (Ibid).
a. DISQUALIFIED BY REASON OF MENTAL

INCAPACITY OR IMMATURITY
Q: What are the requisites for a witness to be
disqualified under this rule?
A:
1.
The proposed witness must be incapable

of making known his perception to
others; and

329

2.
The incapacity must exist as of the time of

his production for examination (Riano,
254, 2009 ed.).
presentation of the testimony of Cyrus on the

ground that, being a deaf-mute, he was not a
competent witness. Is the contention of the
accused correct?
Q: Who are disqualified by reason of mental

incapacity or immaturity?
A: No. A deaf-mute is not incompetent as a witness.

Deaf-mutes are competent witnesses where they
can:
1. understand and appreciate the sanctity of
an oath;
2. comprehend facts they are going to
testify on; and
3. communicate their ideas through a
qualified interpreter (People v. Tuangco,
G.R. No. 130331, Nov. 22, 2001).
A:
1.
2.
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; he can still be
a witness during his lucid interval. The
disqualification is only absolute if the
insane person is publicly known to be
insane and does not have lucid intervals.
Mental immaturity children whose
mental maturity is such as to render them
incapable of perceiving the facts
respecting which they are examined and
of relating them truthfully. (Sec. 21)
Q: When must the incompetence of the witness by

reason of mental incapacity or immaturity exist?
A:
Mental Incapacity
The incompetence of the
witness must exist not at
the time of his perception
of the facts but at the time
he is produced for
examination, and consists
in his inability to
intelligently make known
what he has perceived.
(Riano, Evidence: A
Restatement for the Bar, p.
255, 2009 ed.)
Mental Immaturity
The incompetence of
the witness must occur
at the time the witness
perceives the event
including his
incapability to relate his
perceptions truthfully.
(Ibid.)
Q: Does mental unsoundness of the witness at the

time the fact to be testified occurred affect his
competency?
A: No, it only affects his credibility. Nevertheless, as
long as the witness can convey ideas by words or
signs and can give sufficiently intelligent answers to
questions propounded, she is a competent witness
even if she is feeble-minded (People v. De Jesus,
G.R. No. L-39087, Apr. 27, 1984) or is mental
retardate (People v. Gerones, G.R. No. 91116, Jan.
24, 1991) or is a schizophrenic (People v. Baid, G.R.
No. 129667, July 31, 2000).
Q: Cyrus, a deaf-mute, was presented as a witness
in a criminal case. The accused objected to the
330
b. DISQUALIFICATION BY REASON OF
MARRIAGE/SPOUSAL IMMUNITY
Q: What is purpose of this disqualification?
A: The rule forbidding one spouse to testify for or
against the other is based on principles which are
deemed important to preserve the marriage
relation as one of full confidence and affection, and
that this is regarded as more important to the
public welfare than that the exigencies of the
lawsuits should authorize domestic peace to be
disregarded for the sake of ferreting out facts
within the knowledge of strangers.
Q: What are the requisites in order for the spousal
immunity to apply?
A:
1.
2.
3.
4.
That the spouse for or against whom the

testimony is offered is a party to the case;
That the spouses are validly married;
The testimony is one that is offered
during the existence of the marriage
(Riano, Evidence: A Restatement for the
Bar, p. 266, 2009 ed.); and
The case is not one of the exceptions
provided in the rule. (Herrera, Vol. V, p.
302, 1999 ed.)
Q: What kind of testimony is covered by the

prohibition?
A: The prohibition extends not only to testimony
adverse to the spouse but also to a testimony in
favor of the spouse. (Sec. 22, Rule 130; Riano,
Evidence: A Restatement for the Bar, p. 265, 2009
ed.)
Note: It does not apply in the case of estranged
spouses, where the marital and domestic relations are
so strained that there is no more harmony to be
REMEDIAL LAW TEAM:

EVIDENCE
preserved nor peace and tranquility which may be
disturbed (Alvarez vs Ramirez, October 14, 2005)
Q: What are the exceptions to the spousal

immunity?
A:
1. In a civil case by one against the other; or
2. In a criminal case for a crime committed
by one against the other or the latters
direct descendants or ascendants (Sec.
22), or
3. Where the testimony was made outside
the marriage.
Q: Can this be waived?
A: This can be waived just like any other objection
to the competency of other witnesses. It can be
waived through failure to interpose timely
objection of by calling the other spouse as a
witness.
Q: If an accused marries the prosecution witness
for the sole purpose of sealing the lips of the
witness, will the prohibition apply?
A: Yes. As long as a valid marriage exists at the time
of the trial, the witness-spouse cannot be
compelled to testify even where the crime charged
is against the witness person, and even though the
marriage was entered into for the express purpose
of suppressing the testimony.
Q: Distinguish spousal immunity from marital
privilege.
A:
Disqualification By Reason
Of Marriage (Sec. 22)
Can be invoked only if one
of the spouses is a party to
the action
Applies only if the marriage
is existing at the time the
testimony is offered
Constitutes an absolute
prohibition for or against
the spouse of the witness
The married witness would
not be allowed to take the
stand at all because of the
disqualification. Even if the
testimony is, for or against
the objecting spouse.
Disqualification By
Reason Of Marital
Privilege (Sec. 24)
Can be claimed
whether or not the
other spouse is a party
to the action
Can be claimed even
after the marriage is
dissolved
Applies only to
confidential
communications
between the spouses
The married person is
on the stand but the
objection of privilege is
raised when
confidential marital
communication is
inquired into
Q: Who can claim spousal immunity?

A: The spouse who can object is the spouse-party
and not the spouse-witness.
Q: Gizelle was estranged from her husband Mico
for more than a year. Gizelle was temporarily
living with her sister in Pasig City. For unknown
reasons, the house of Ivys sister was burned,
killing the latter. Gizelle survived.
Gizelle saw her Mico in the vicinity during the
incident. Later, Mico was charged with arson.
During the trial, the prosecutor called Gizelle to
the witness stand and offered her testimony to
prove that her husband committed arson. Can
Gizelle testify over the objection of her husband
on the ground of marital privilege?
A: Yes. The marital disqualification rule is aimed at
protecting the harmony and confidences of marital
relations. Hence, where the marital and domestic
relations are so strained that there is no more
harmony to be preserved nor peace and tranquillity
which may be disturbed, the marital disqualification
no longer applies.
The act of Mico in setting fire to the house of his
sister-in-law, knowing that his wife was there, is an
act totally alien to the harmony and confidences of
marital relation which the disqualification primarily
seeks to protect. The criminal act complained of
had the effect of directly and vitally impairing the
conjugal relation. (Alvarez v. Ramirez, G.R. No.
143439, Oct. 14, 2005). (2006 Bar Question)
c. DISQUALIFICATION BY REASON OF DEATH OR
INSANITY OF THE ADVERSE PARTY (DEAD MAN
STATUTE/SURVIVING PARTIES RULE)
Q: What are the elements for the application of
the rule?
A:
1.
2.
3.
4.
The defendant in the case is the executor

or the administrator or a representative
of the deceased or the person of unsound
mind;
The case is against the executor or the
administrator or a representative of the
deceased or the person of unsound mind;
The subject matter of the action is a claim
or demand against the estate of a
deceased person or a person of unsound
mind; and
The testimony is as to any matter of fact
occurring before the death of such
deceased person or before such person

331

became of unsound mind. (Sec. 23, Rule
130)
8.
Negative testimony, that is, testimony

that a fact did not occur during the
lifetime of the deceased;
9. Testimony on the present possession by
the witness of a written document signed
by the deceased because such fact exists
even after the death of decedent;
10. When the defendant/s, though heirs of
the deceased, are sued in their personal
and individual capacities; and
11. In actions against a partnership.
Q: What is covered by the disqualification by

reason of death or insanity of the adverse party?
A: It constitutes a partial disqualification of a
witness wherein he is prohibited from testifying as
to any matter of fact occurring before the death or
insanity of a party to the transaction.
Note: The witness cannot testify on matters which
occurred in the presence and within the hearing of the
decedent to which he might testify on his personal
knowledge if he were alive. Facts favorable to the
deceased or insane person or their representatives are
not prohibited.
Q: What is the reason underlying the adoption of

the dead man statute?
A: To guard against the temptation to give false
testimony in regard of the transaction in question
on the part of the surviving party and to discourage
perjury.
Q: What are the cases not covered by the dead
man statute?
A:
1.
2.
3.
4.
5.
6.
7.
332
Testimony of mere witnesses who are

neither party plaintiffs, nor their
assignors, nor persons in whose behalf a
case is prosecuted, nor to a nominal
party, nor to officers and stockholders of
a plaintiff corporation;
If the person or persons mentioned under
the rule file a counterclaim ;
Where the deceased contracted with the
plaintiff through an agent and said agent
is alive and can testify, but the testimony
of the plaintiff should be limited to acts
performed by the agent;
Land registration cases instituted by the
deceaseds representative, where the
oppositor is considered as defendant or in
cadastral cases where there are no
oppositors;
When there is waiver;
If the plaintiff is the executor or
administrator or other representative of a
deceased person, or the person of
unsound mind;
When the testimony refers to fraudulent
transactions committed by the persons
mentioned in the rule, provided such
fraud is first established by other
evidence;
Q: Can this be waived?

A: The disqualification under this rule is waived if
the defendant does not timely object to the
admission of such evidence or testifies on the
prohibited matters or cross-examines thereon.
Q: Distinguish dead mans statute from marital
disqualification rule.
A:
Dead Mans Statute
Marital Disqualification
Rule
Only a partial
disqualification as the
witness is not completely
disqualified but is only
prohibited from testifying
on the matters therein
specified
A complete and absolute

disqualification
Applies only to a civil

case or special
proceeding over the
estate of a deceased or
insane person
GR: Applies to a civil or

criminal case.
XPN: In a civil case by one
spouse against the other
or in a criminal case for a
crime committed by one
spouse against the other
or the latters direct
descendants or
ascendants
d. DISQUALIFICATION BY REASON OF PRIVILEGED

COMMUNICATION
Q: Who may assert the privilege?
A: The holder of the privilege, authorized persons
and persons to whom privileged communication
were made can assert the privilege.
Note: The disqualification applies to both civil and
criminal cases except as to the doctor-patient privilege,
which is applicable only in civil cases. Unless waived,
the disqualification under Sec. 24 remains even after
the various relationships therein have ceased to exist.
The privilege cannot be invoked where confidential
information are made in contemplation of death or in
furtherance or perpetuation of fraud. Unless waived,
REMEDIAL LAW TEAM:

EVIDENCE
the disqualification under Sec. 24 remains even after
the various relationships therein have ceased to exist.
A:
1.
2.
(1) HUSBAND AND WIFE

this privilege?
3.
A:
1.
2.
3.
There was a valid marriage;

The privilege is invoked with respect to a
confidential communication between the
spouses during the said marriage; and
The spouse against whom such evidence
is being offered has not given his consent
to such testimony.
Attorney-client relation;
The privilege is invoked with respect to a
confidential communication between
them in the course of professional
employment; and
The client has not given his consent to the
attorneys testimony; or if the attorneys
secretary, stenographer or clerk is sought
to be examined, that both the client and
the attorney have not given their consent.
Q: What is the purpose of this privilege?
Q: When is the privilege inapplicable?
A: To encourage full disclosure by client to his

attorney of all pertinent matters as to further the
administration of justice.
A:

1.
2.
In a civil case by one against the other; or

In a criminal case for a crime committed
by one against the other or the latters
direct ascendants or descendants.
Q: Are third persons who overhear the

communication between the spouses bound by
the privilege?
A:
GR: Third persons who, without the knowledge
of the spouses, overhear the communication
are not disqualified to testify.
XPN: When there is collusion and voluntary
disclosure to a third party, that third party
becomes an agent and cannot testify.
Q:
Distinguish
marital
privilege
disqualification by reason of marriage.
from
A:
Disqualification by reason
of marriage
Can be invoked only if one
of the spouses is a party to
the action
Applies only if the marriage
is existing at the time the
testimony is offered
Constitutes a total
prohibition against the
spouse of the witness
Marital privilege
Can be claimed whether or
not the spouse is a party to
the action
Can be claimed even after
the marriage has been
dissolved
Applies only to confidential
communications between
the spouses
(2) ATTORNEY AND CLIENT

the privilege?
A: It does not apply to communications which are:

1. intended to be made public;
2. intended to be communicated to others;
3. intended for an unlawful purpose;
4. received from third persons not acting in
behalf or as agents of the client; or
5. made in the presence of third parties who
are strangers to the attorney-client
relationship. (Regalado, Vol. II, p. 750,
2008 ed.)
Q: What is the test in applying the attorney-client
privilege?
A: The test is whether the communication made is
with the view of obtaining from the lawyer his
professional assistance or advice regardless of the
existence or absence of a pending litigation.
Q: May a lawyer refuse to divulge the identity of
his clients?
A:
GR: Lawyers may not invoke the privilege and
refuse to divulge the name or identity of their
client.
XPNs:
3. Where a strong possibility exists that
revealing clients name would implicate
the client in the very activity for which he
sought the lawyers advice;
4. Where disclosure would open the client
to civil liability; or
5. Where the prosecutors have no case
against the client unless by revealing the
clients name, the
said name would
furnish the only link that would form the

333

chain of testimony necessary to convict
an individual for a crime.
Q: A tugboat owned by Speedy Port Service, Inc.
(SPS) sank in Manila Bay while helping to tow
another vessel, drowning 5 of the crew in the
resulting shipwreck. At the maritime board
inquiry, the 4 survivors testified. SPS engaged Atty.
Ely to defend against potential claims and to sue
the company owning the other vessel for damages
to the tug. Ely obtained signed statements from
the survivors. He also interviewed other persons,
in some instance making memoranda. The heirs of
the 5 victims filed an action for damages against
SPS.
The counsel of the heirs of the 5 victims sent
written interrogatories to Ely, asking whether
statements of the witnesses may be obtained. Ely
refused to comply, arguing that the documents
and
information
asked
are
privileged
communication. Is the contention tenable?
Explain.
A: Yes, the contention of counsel for SPS is tenable
considering that he was acting in his professional
capacity in bringing about the statement he
obtained from the witnesses and the memoranda
he made. The notes, memoranda, and writings
made by the counsel in pursuance of his
professional duty, form part of his private and
confidential files in the cases handled by him; hence
privileged (Air Philippines Corp v. Penswell, Inc., G.R.
No. 172835, Dec. 13, 2007).
A: The privilege is intended to facilitate and make

safe, full and confidential disclosure by patient to
doctor of all facts, circumstances, and symptoms,
untrammeled by apprehension of their subsequent
and enforced disclosure and publication on the
witness stand, to the end that the physician may
form a correct opinion, and be enabled safely and
efficaciously to treat his patient.
A: It does not apply to communications which are:
1. Not given in confidence;
2. Irrelevant
to
the
professional
employment;
3. Made for an unlawful purpose;
4. Intended to be made public; or
5. Waived either by contract or law.
Q: What are the pieces of information which
cannot be disclosed?
A:
1. Any advice or treat given to the client;
2. Any information acquired in attending
such patient provided that the advice,
treatment or information was made or
acquired in a professional capacity and
was necessary to enable him to act in that
capacity; and
3. That the information sought to be
disclosed would tend to blacken the
reputation of the patient. (Sec. 24c, Rule
130)
(3) PHYSICIAN AND PATIENT

Q: Can such privilege be waived?
the privilege?
A:
1.
2.
3.
4.
5.
The action involves a civil case;

The relation of physician and patient
existed between the person claiming the
privilege or his legal representative and
the physician;
The advice or treatment given by him or
any information was acquired by the
physician while professionally attending
to the patient;
The information was necessary for the
performance of his professional duty; and
The disclosure of the information would
tend to blacken the reputation of the
patient.
334
A: Yes. The waiver may be made expressly or

impliedly. The waiver may be by a contract as in
medical or life insurance. When there is disclosure
by the patient of the information, there is
necessarily, a waiver. When the patient answers
questions on cross on matters which are
supposedly privileged, the waiver also exists. There
could also be waiver by operation of law (sec4, Rule
28 of the Rules of Court) (Riano, p.292).
Q: Is it necessary that the professional relationship
exists between the doctor and patient when the
communication was made?
A: Yes. It is essential that while the doctor was
attending to the patient for curative, preventive or
palliative treatment. It is not however necessary
that the relationship was created through the
voluntary act of the patient. The treatment may
have been given at the behest of another. (Ibid.)
REMEDIAL LAW TEAM:

EVIDENCE
Q: Aimee sought to offer as evidence the
testimony of Dr. Naval to prove that Bob is not the
illegitimate son of Yuring as the latter was sterile.
Bob objected to the admissibility of the said
testimony arguing that the same is covered by the
physician-patient privilege because the testimony
would blacken the reputation of Yuring. It was
alleged that Yuring became sterile because he
contracted gonorrhea. Aimee argues that Yuring is
long dead and, as such, the privilege may not be
invoked.
1. Is the testimony of Dr. Naval covered by
the physician-patient privilege?
2. Does the fact that Yuring is long dead bar
the application of the physician-patient
privilege?
privilege is claimed is not one duly authorized to

practice medicine, surgery obstetrics.
Xavier is simply Ysa's husband who wishes to testify
on a document executed by medical practitioners.
This does not fall within the claimed prohibition.
Neither can his testimony be considered a
circumvention of the prohibition because his
testimony cannot have the force and effect of the
testimony of the physician who examined the
patient and executed the report (Krohn v. CA, G.R.
No. 108854, June 14, 1994).
(4) PRIEST AND PENITENT
Q: What are the requisites for its application?
A:
A:
1.
1.
Yes. Yuring's sterility arose when he

contracted gonorrhea, a fact which most
assuredly blackens his reputation. In fact,
given that society holds virility at a
premium, sterility alone, without the
attendant embarrassment of contracting
a sexually-transmitted disease, would be
sufficient to blacken the reputation of any
patient (Gonzales v. CA, G.R. No. 117740,
Oct. 30, 1998).
2.
The confession must have been made to

the priest in his professional character
according to the discipline of the church
to which the priest or minister belongs
[Sec. 24(d)]; and
Communications
made
must
be
confidential and must be penitential in
character e.g., under the seal of the
confessional (Regalado, Vol. II, p. 752,
2008 ed.)

2.
No. The privilege of secrecy is not

abolished or terminated because of
death. The purpose of the law would be
thwarted and the policy intended to be
promoted thereby would be defeated, if
death removed the seal of secrecy, from
the communications and disclosures
which a patient should make to his
physician. After one has gone to his grave,
the living are not permitted to impair his
name and disgrace his memory by
dragging to light communications and
disclosures made under the seal of the
statute (Gonzales v. CA, G.R. No. 117740,
Oct. 30, 1998).
Q: Xavier filed a complaint for declaration of

nullity of his marriage with Ysa on the ground of
psychological incapacity. Xavier sought to testify
on a confidential psychiatric evaluation report on
his wife. Ysa objected to Xaviers testimony on the
ground that it violates the physician-patient
privilege. Is the objection of Ysa correct?
A: No. One of the requisites before the physicianpatient privilege may be invoked is that the person
against whom the privilege is claimed is one duly
authorized to practice medicine, surgery or
obstetrics. Here, the person against whom the
A: To allow and encourage individuals to fulfill their

religious, emotional or other needs by protecting
confidential disclosures to religious practitioners.
A: When the communication is not penitential in
character as when what is divulged is the plan to
commit a crime.
Q: What is the rationale behind the privilege
granted
to
communications
between
minister/priest and the penitent?
A: It is to allow and encourage individuals to fulfill
their religious, emotional or other needs by
protecting confidential disclosures to religious
practitioners (Peralta, Jr., p. 220, 2005 ed.).
(5) PUBLIC OFFICERS
Q: What are the requisites for its application?
A:
1.
2.
The communication must have been

made to a public officer;
The communication was given to the
public officer in official confidence; and

335

3.
The public interest would suffer by the

disclosure of the communication.
e. PARENTAL AND FILIAL PRIVILEGE RULE

Q: May a descendant be compelled to testify
against his parents in a criminal case?

A: If what is asked:
1. is useful evidence to vindicate the
innocence of an accused;
2. lessen the risk of false testimony;
3. is essential to the proper disposition of
the litigation; or
4. the benefit to be gained by a correct
disposition of the litigation was greater
than any injury which could inure to the
relation by a disclosure of the
information. (Francisco, p. 171, 1992 ed.)
Q: Is the privilege applicable to public officer in
general?
A: No. The privilege only applies to communications
to such officers who have a responsibility or duty to
investigate or to prevent public wrongs, and not to
officials in general (Francisco, p. 139, 1992 ed.).
Note: The court, not the witness, will determine the
necessity of regarding the communication as privileged
(Francisco, p. 143, 1992 ed.).
Q: What is the concept of executive privilege?

A: Certain types of information like military,
diplomatic and other national security matters may
be withheld from the public.
Q: Secretary of Fisheries Nenito Abesamis received
an invitation for questioning in a hearing from the
Senate of the Philippines regarding Fish Feeds
Scam. During the hearing, Abesamis didnt answer
the questions propounded to him by Senator
Renato Pamintuan claiming that his position
entitles him to invoke the executive privilege. Is
his contention correct?
A: No. As held in the case of Senate of the
Philippines vs. Ermita, (G.R. No. 169777, April 25,
2006). The Court upheld the doctrine of executive
privilege; it found the executive order partly
constitutionally defective, specifically Secs. 2(b) and
3 which required government officials below the
heads of executive departments to secure consent
from the President before appearing in
congressional hearings and investigations. The
Court noted that E.O. 464 covers persons which are
a misuse of the doctrine because the privilege is to
be properly invoked in relation to specific
categories of information and not categories of
persons. (Riano, 2009 ed., p. 298)
336
A: No, because no person may be compelled to

testify against his parents, other direct ascendants,
children or other direct descendants (Sec. 25).
A descendant may not be compelled to testify
against his parents notwithstanding Article 215 of
the Family Code which allows the compulsion of a
descendant to testify against his parents when such
testimony is indispensable in a crime against the
descendant or by one against the other. Any
conflict between the two provisions should be
resolved in favor of the Rules of Court provision
because although found in a substantive law, the
aforesaid Family Code provision is essentially
procedural in nature.
Alternative Answer:
Yes. Article 215 of the Family Code provides that
No descendant shall be compelled, in a criminal
case, to testify against his parents and
grandparents, except when such testimony is
indispensable in a crime against the descendant or
by one against the other. The parental and filial
privilege under the Rules of Court notwithstanding,
it is submitted that the Family Code is superior to
the former since a procedural rule of evidence
cannot impair a substantive law. Hence, a
descendant may be compelled to testify against his
parents if such testimony is indispensable in a crime
against the descendant or by one against the other.
Q: Which should be applied between Rule 130,
Sec. 25 of the Rules of Court and Art. 215 of the
Family Code in case of conflict?
A: It was suggested that the Rules of Court should
apply because it took effect in 1989 as compared
to the Family Code which took effect in 1988. It
may be argued that the former is procedural and
the latter is substantive; however, it was further
suggested that although the Family Code provision
is substantive, it is procedural in character. So, of
these two provisions, the Rules of Court,
promulgated by the Supreme Court, should
prevail.
OTHER PRIVILEGED MATTERS
Q: What other matters are considered privileged?
A:
1.
The guardian ad litem shall not testify in

any
proceeding
concerning
any
information, statement, or opinion
REMEDIAL LAW TEAM:

EVIDENCE
2.
3.
4.
5.
6.
7.
received from the child in the course of

serving as a guardian ad litem, unless the
court finds it necessary to promote the
best interests of the child [Sec. 5 (e), Rule
on Examination of a Child Witness];
Editors, publisher, or duly accredited
reporter of any newspaper, magazine or
periodical of general circulation cannot be
compelled to reveal the source of any
news report or any information given to
him in confidence, unless a court or a
House or a committee of Congress finds
that such revelation is demanded for
State security (R.A. 1477);
Voters may not be compelled to disclose
for whom they voted;
Trade secrets cannot be disclosed
although this is not absolute as the court
may compel disclosure where it is
indispensable for doing justice (Francisco,
p. 335, 1992 ed.);
Bank deposits are absolutely confidential
in nature except upon written permission
of the depositor, or in cases of
impeachment, or upon lawful order of a
competent court (R.A. 1405; Francisco, p.
335, 1992 ed.);
Conciliators and similar officials shall not
testify in any court or body regarding any
matter taken up at the conciliation
proceedings conducted by them (Art. 233,
Labor Code); and
Informers, for the protection of their
identity, cannot be compelled to testify
by the prosecutor when their testimony
would merely be cumulative and
corroborative (Herrera, Vol. V, p. 353,
1999 ed.).
4. EXAMINATION OF A WITNESSES
a. RIGHTS AND OBLIGATIONS OF A WITNESS

Q: What are the rights of a witness?
A:
1. To be protected from irrelevant,
improper, or insulting questions, and
from harsh or insulting demeanor;
2. Not to be detained longer than the
interests of justice require;
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 (right
against self-incrimination)
Note: This refers to immunity statutes
wherein the witness is granted immunity
from criminal prosecution for offenses
admitted in his testimony, e.g. under Sec. 8,

R.A. 1379, the law providing for the
forfeiture of unlawfully acquired property;
and under P.D. 749, in prosecutions for
bribery and graft.
5.
Not to give an answer, which will tend to

degrade his reputation, unless it be to the
very fact at issue or to a fact from which
the fact in issue would be presumed. But
a witness must answer to the fact of his
previous final conviction for an offense
(Sec. 3).
Q: What are the classifications of immunity

statutes?
A:
Use Immunity
Prohibits the use of the
witness' compelled
testimony and its fruits in
any manner in connection
with the criminal
prosecution of the witness
Transactional Immunity
Grants immunity to the
witness from
prosecution for an
offense to which his
compelled testimony
relates
Q: May a witness refuse to answer questions

material to the inquiry?
A:
GR: A witness cannot refuse to answer
questions. The witness has the obligation to
answer questions, although his answer may
tend to establish a claim against him (Sec. 3).
XPN: A witness may validly refuse to answer
under the:
1. Right against self-incrimination if his
answer will tend to subject him to
punishment for an offense; or
2. Right against self-degradation if his
answer will have a direct tendency to
degrade his character.
XPN to the XPN: A witness may not invoke the
right against self-incrimination nor the right
against self-degradation if:
1. Such question is directed to the very fact
at issue or to a fact from which the fact at
issue would be presumed; or
2. If it refers to his previous final conviction
for an offense. (Regalado, Vol. II, pp. 841842, 2008 ed.)
Note: Right against self-incrimination pertains only to
natural persons and with respect to testimonial
compulsion only. This right may be invoked in all kinds
of proceedings where testimony is to be taken,
including investigation by legislative bodies.

337

The constitutional assurance of the right against selfincrimination is a prohibition against the use of
physical
or
moral
compulsion
to
extort
communications from the accused. It is simply a
prohibition against legal process to extract from the
accuseds own lips, against his will, admission of his
guilt (Ong v. Sandiganbayan & Office of the
Ombudsman, G.R. No. 126858, Sept. 16, 2005).
Q: Distinguish the right against self-incrimination

of the accused from that of an ordinary witness.
A:
Accused
Cannot be compelled to
testify or produce evidence
in the criminal case in which
he is the accused or one of
the accused, he cannot be
compelled to do so even by
subpoena or other process
or order of the court. He
cannot be required either
for the prosecution, for coaccused or even for himself.
Ordinary Witness
May be compelled to
testify by subpoena,
having only the right
to refuse to answer a
particular
incriminating question
at the time it is put to
him.
Q: May a witness refuse to take the witness stand?

A:
GR: A witness may not refuse to take the
witness stand.
XPNs:
1. An accused in a criminal case; or
2. In civil and administrative cases that
partake the nature of or analogous to a
criminal proceeding. As long as the suit is
criminal in nature, the party thereto can
decline to take the witness stand. It is not
the character of the suit involved but the
nature of the proceedings that controls
(Rosete, et. al. v. Lim, et. al., G.R. No.
136051, June 8, 2006).
Q: Mr. Talisman, a government official, was invited
by the Senate to be one of the resource persons in
the public hearing in one of its committees. When
Mr. Talisman declined the invitation, the Senate
directed its sergeant-at-arms to place him under
arrest for contempt. He was arrested and brought
to the Senate where he was detained. He filed a
petition for certiorari and prohibition alleging that
his right against self-incrimination was violated. Is
his contention correct?
A: No. The right against self-incrimination may only
be invoked when the incriminating question is
being asked, since he has no way of knowing in
advance the nature or effect of the questions to be
asked. That this right may possibly be violated or
abused is no ground for denying respondent senate
338
committees their power of inquiry. (In Re: Sabio,

G.R. No. 174340, Oct. 17, 2006).
Q: Is the right against self-incrimination available
to a witness who has been admitted to the
Witness Protection Program?
A: Any witness admitted into the program of the
Witness Protection, Security and Benefit Act cannot
refuse to testify or give evidence or produce books,
documents, records or writings necessary for the
prosecution of the offense or offenses for which he
has been admitted into the Program on the ground
of the constitutional right against self-incrimination
but he shall enjoy immunity from criminal
prosecution and cannot be subjected to any penalty
or forfeiture for any transaction, matter or thing
concerning his compelled testimony or books,
documents, records and writings produced (Sec. 14,
R.A. 6981).
Q: Who may be admitted to the Witness
Protection, Security and Benefit Program?
A: Any person who has witnessed or has knowledge
or information on the commission of a crime and
has testified or is testifying or about to testify
before any judicial or quasi-judicial body, or before
any investigating authority may be admitted
provided that:
1. the offense in which his testimony will be
used is a grave felony as defined under
the Revised Penal Code, or its equivalent
under special laws;
2. his testimony can be substantially
corroborated in its material points;
3. he or any member of his family within the
second civil degree of consanguinity or
affinity is subjected to threats to life or
bodily injury or there is a likelihood that
he will be killed, forced, intimidated,
harassed or corrupted to prevent him
from testifying, or to testify falsely, or
evasively, because or on account of his
testimony; and
4. he is not a law enforcement officer, even
if he would be testifying against the other
law enforcement officers. In such a case,
only the immediate members of his family
may avail themselves of the protection
provided for under the Act (Sec. 3, R.A.
6981).
Q: Who is a State witness?
A: Any person who has participated in the
commission of a crime and desires to be a witness
for the State, can apply and shall be admitted into
REMEDIAL LAW TEAM:

EVIDENCE
the Program if the following circumstances are
present:
1.
2.
3.
4.
5.
6.
A:
the offense in which his testimony will be

used is a grave felony as defined under
the Revised Penal Code or its equivalent
under special laws;
there is absolute necessity for his
testimony;
there is no other direct evidence available
for the proper prosecution of the offense
committed;
his testimony can be substantially
corroborated on its material points;
he does not appear to be most guilty; and
he has not at any time been convicted of
any crime involving moral turpitude.
Note: An accused discharged from an information or

criminal complaint by the court in order that he may
be a State Witness pursuant to Section 9 and 10 of
Rule 119 of the Revised Rules of Court may upon his
petition be admitted to the Program under R.A. 6981 if
he complies with the other requirements of the said
law. R.A. 6981 does not prevent the discharge of an
accused, so that he can be used as a State Witness
under Rule 119 of the Rules of Court (Sec. 10, R.A.
6981).
Q: Can a State witness be liable for contempt or

criminal prosecution?
A: Yes, if he fails or refuses to testify or to continue
to testify without just cause when lawfully obliged
to do so, he shall be prosecuted for contempt. If he
testifies falsely or evasively, he shall be liable to
prosecution for perjury. If a State witness fails or
refuses to testify, or testifies falsely or evasively, or
violates any condition accompanying such immunity
without just cause, as determined in a hearing by
the proper court, his immunity shall be removed
and he shall be subject to contempt or criminal
prosecution. Moreover, the enjoyment of all rights
and benefits under R.A. 6981 shall be deemed
terminated. The witness may, however, purge
himself of the contumacious acts by testifying at
any appropriate stage of the proceedings (Sec. 13,
R.A. 6981).
Q: What are the purposes of each stage of the

examination?
A:
1.
Direct examination To establish the case

of the proponent of the witness. The
purpose is to elicit facts about the clients
cause of action or defense.
2.
Cross examination As a rule, the scope

of this is not confined to the matters
stated by the witness in the direct
examination. (Riano, p. 318). The purpose
of which is:
a. To impeach the credibility of the
testimony;
b. To impeach the credibility of the
witness;
c. To elicit admissions; and
d. To clarify certain matters.
3.
Redirect examination The counsel may

elicit testimony to correct or repel any
b. ORDER IN THE EXAMINATION OF A WITNESS

(1) DIRECT EXAMINATION
(2) CROSS EXAMINATION
(3) RE-DIRECT EXAMINATION
(4) RE-CROSS EXAMINATION
Q: What is the order in the examination of an
individual witness?

339

wrong impression or inferences that may
have been created. It may also be an
opportunity to rehabilitate a witness
whose credibility has been damaged
(Riano, p.319). Its purposes are:
a. To afford opportunity to the witness
to explain or amplify his testimony
during cross-examination; and
b. To
explain
any
apparent
contradiction or inconsistency in his
statements.
XPN: Where the prosecution witness was

extensively cross-examined on the material points
and thereafter failed to appear and cannot be
produced despite a warrant of his arrest. (People vs
Gorospe, gr. 51513, May 15, 1984)
Q: What is the effect of death or absence of a
witness after the direct examination by the
proponent?
A:
1.
4.
Re-cross examination It is limited to the

new matters brought out on the redirect
examination of the witness and also on
such other matters as may be allowed by
the court in its discretion. The purposes
are:
a. To overcome the proponents
attempt to rehabilitate the witness;
and
b. To rebut damaging evidence brought
out during cross-examination.
2.
Q: What is the scope of a cross-examination?

A:
1. English rule Where a witness is called to
testify to a particular fact, he becomes a
witness for all purposes and may be fully
cross-examined upon all matters material
to the issue, the examination not being
confined to the matters inquired about in
the direct examination.
2.
American rule Cross-examination is

restricted to facts and circumstances
which are connected with the matters
that have been stated in the direct
examination of the witness.
Q: What rule is observed in our jurisdiction?
3.
If the witness was not cross-examined

because of causes attributable to the
cross-examining party and the witness
had always made himself available for
cross-examination, the direct testimony
of the witness shall remain on record and
cannot be stricken off because the crossexaminer is deemed to have waived his
right to cross-examine (Dela Paz v. IAC,
G.R. No. 75860, Sept. 17, 1987).
If the witness was partially crossexamined but died before the completion
of his cross-examination, his testimony on
direct may be stricken out but only with
respect to the testimony not covered by
the cross-examination (People v. Seeris,
G.R. No. L-48883, Aug. 6, 1980).
The absence of a witness is not sufficient
to warrant the striking out of his
testimony for failure to appear for further
cross-examination where the witness has
already been sufficiently cross-examined,
and the matter on which crossexamination is sought is not in
controversy (Ibid.).
Q: Is the party who offered the testimony of a

witness bound by such testimony?
A:
GR: Yes, he is bound by the testimony.
A:
GR: The English rule is observed in our
jurisdiction.
XPN: The American rule is observed with
respect to cross-examination of an accused or a
hostile witness.
XPN: When the witness is the:

1. adverse party;
2. hostile witness;
3. unwilling witness; or
4. a witness required by law to be presented
(forced witness)
Q: What is the Doctrine of Incomplete Testimony?

Q: Who is a hostile witness?
A:
GR: When cross-examination cannot be done or
completed due to causes attributable to the party
who offered the witness, the incomplete testimony
is rendered incompetent and should be stricken
from the record.
340
A: A witness may be considered as unwilling or

hostile only if so declared by the court upon
adequate showing of his adverse interest,
unjustified reluctance to testify or his having misled
the party into calling him to the witness stand (Sec.
12).
REMEDIAL LAW TEAM:

EVIDENCE
(5) RECALLING THE WITNESS
Q: What is the rule on recalling of a witness?
he has previously stated. It is not allowed (Sec. 10)

unless waived or when asking hypothetical
questions to an expert witness. It is not allowed in
any type of examination.
A:
GR: A witness cannot be recalled without leave
of court as the recalling of a witness is a matter
of judicial discretion. (Sec. 9, Rule 132)
XPN:
1. The examination has not been concluded;
2. If the recall of the witness was expressly
reserved by a party with the approval of
the court. In these two cases the recall of
a witness is a matter of right. (Regalado,
Vol. II, p. 848, 2008 ed.)
Note: Something more than the bare assertion of the
need to propound additional questions is essential
before the court's discretion may rightfully be
exercised to grant or deny recall. There must be a
satisfactory showing of some concrete, substantial
ground for the recall.
c. LEADING AND MISLEADING QUESTIONS

Q: What is leading question?
A: It is one which suggests to the witness the
answer which the examining party desires. It is not
allowed except:
1. On cross-examination;
2. On preliminary matters;
3. When there is difficulty in getting direct and
intelligible answers from a witness who is
ignorant, or a child of tender years, or is of
feeble mind or a deaf-mute;
4. To unwilling witness or hostile witness; or
5. Witness is an adverse party or an officer,
director, or managing agent of a public or
private corporation or of a partnership or
association which is an adverse party. (Sec.
10).
Q: Why are leading questions allowed during
cross-examination?
A: The witness is not the cross-examining partys
witness. He is expected to be adverse or hostile to
the cross-examiner. He is not expected to
cooperate.
Note: A question that merely suggests a subject
without suggesting an answer or a specific thing is not
a leading question. E.g. State whether anything
transpired between you and the defendants on the
17th of May 2008.
Q: What is misleading question?

A: It is one which assumes as true a fact not yet
testified to by the witness, or contrary to that which
d. METHODS OF IMPEACHMENT OF ADVERSE

PARTY
Q: What is impeachment of a witness?
A: It is a technique employed usually as part of
cross-examination to discredit a witness testimony
by attacking his credibility. (Riano, Evidence: A
Restatement for the Bar, p. 323, 2009 ed.)
Q: What is meant by impeachment of the adverse
party as a witness?
A: That the witness is the adverse party does not
necessarily mean that the calling party will not be
bound by the formers testimony. The fact remains
that it was at his instance that his adversary was
put on the witness stand. He is not bound only in
the sense that he may contradict him by
introducing other evidence to prove a state of facts
contrary to what the witness testifies. Unlike an
ordinary witness, the calling party may impeach an
adverse witness in all respects as if he had been
called by the adverse party, except by evidence of
his bad character. Under a rule permitting the
impeachment of an adverse witness, although the
calling party does not vouch for the witness
veracity, he is nonetheless bound by his testimony
if it is not contradicted or remains unrebutted (Gaw
v. Chua, G.R. No. 160855, April 16, 2008)
Q: What are the methods to impeach the adverse
partys witness?
A:
BY
CONTRADICT
ORY
EVIDENCE
Refers to the
prior
testimony of
the same
witness or
other
evidence
presented by
him in the
same case,
but not the
testimony of
other witness
BY EVIDENCE THAT
HIS
GENERAL
REPUTATION FOR
TRUTH, HONESTY,
OR INTEGRITY OF
THE WITNESS IS
BAD
Since the weight of
the witness
testimony depends
on his credibility, he
may be impeached
by impairing his
credibility by
showing his not
pleasing reputation
but only as regards
his reputation for
truth, honesty or
integrity

BY PRIOR
INCONSISTEN
T
STATEMENTS
LAYING THE
PREDICATE"
Refer to
statements,
oral or
documentary,
made by the
witness
sought to be
impeached on
occasions
other than
the trial in
which he is
testifying
341

Q: May a witness be impeached by evidence of
particular wrongful acts?
not merely to impeach him, the rule on laying the

predicate does not apply.
A:
Q: What are the elements of laying the predicate?

GR: A witness may not be impeached by
evidence of particular wrongful acts.
XPN: If it may be shown by the examination of
the witness, or the record of the judgment, that
he has been convicted of an offense (Sec. 11).
A:
1.
Q: What are the other modes of impeachment?

2.
A:
1.
2.
3.
4.
5.
By
showing
improbability
or
unreasonableness of testimony;
By showing bias, prejudice, and hostility;
By prior inconsistent acts or conduct;
By
showing
social
connections,
occupation and manner of living; or
By showing interest. (Francisco, pp. 480481, 1992 ed.)
Q: May a party impeach his own witness?

A: GR: A party may not impeach his own witness.
XPN: The witness is an:
1. unwilling or adverse witness so declared
by the court;
2. adverse party; or
3. officer of the adverse party who is a
juridical person (Sec. 12).
Note: In these instances, such witnesses may be
impeached by the party presenting him in all respects
as if he had been called by the adverse party, except
by evidence of his bad character.
e. HOW THE WITNESS IS IMPEACHED BY EVIDENCE

OF INCONSISTENT STATEMENTS (LAYING THE
PREDICATE)
Q: What is the procedure for impeaching a witness
by evidence of prior inconsistent statements?
Q: When is the rule on laying the predicate

inapplicable?
A: It is inapplicable if the prior inconsistent
statement appears in a deposition of the adverse
party, and not a mere witness, that adverse party
who testifies may be impeached without laying the
predicate as such prior statements are in the nature
of admissions of said adverse party. (Regalado, Vol.
II, p. 852, 2008 ed.)
Q: What is the purpose of laying the predicate?
A: The purpose of which is to allow the witness to
admit or deny the prior statement and afford him
an opportunity to explain the same. Noncompliance with the foundational elements for this
mode of impeachment will be a ground for an
objection based on improper impeachment. Over
a timely objection, extrinsic evidence of a prior
inconsistent statement without the required
foundation is not admissible. (ibid)
Q: Distinguish laying the predicate from laying the
foundation or basis.
A:
LAYING THE
PREDICATE
A:
1.
2.
3.
The witness must be confronted with

such statements with the circumstances
of the times, places and the persons
present in which they were made;
The witness must be asked whether he
made such statements, and if so, allowed
to explain them; and
If the statement be in writing it must be
shown to the witness before any question
is put to him concerning them (Sec. 13).
Note: This procedure is also called the rule on laying

the predicate. Where the previous statements of a
witness are offered as evidence of an admission, and
342
The alleged statements must be related

to
the
witness
including
the
circumstances of the times and places and
the persons present. If the statements are
in writing they must beshown to him;
He must be asked whether he made such
statements and also to explain them if he
admits making those statements (Riano,
p. 327).
Refers only to
impeachment of a
witness through
prior inconsistent
statements
LAYING THE FOUNDATION OR

BASIS
Refers to a situation where
evidence which is otherwise
incompetent will be introduced
into evidence because it falls
under the rules of exclusion.
E.g. under the best evidence
rule, a party must first prove
that a writing was duly executed
and that the original has been
lost or destroyed. Without first
laying the foundation,
secondary evidence will not be
admitted by the court.
REMEDIAL LAW TEAM:

EVIDENCE
f. EVIDENCE OF THE GOOD CHARACTER OF A
WITNESS
Q: Is evidence of good character of a witness
admissible?
Q: What are the exceptions to the res inter alios

acta rule (first branch)?
A:
1.
A:
2.
GR: No.
XPN: When such
impeached. (Sec. 14)
character
has
been
Q: When can evidence of bad moral character of

the accused be presented?
A: In a criminal case, the prosecution cannot prove
the bad moral character of the accused in its
evidence-in-chief. It can only do so in rebuttal (Sec.
51 [a][2], Rule 130, Rules of Court).
Q: When can evidence of good moral character of
the accused be presented?
A: The accused may prove his good moral character
when pertinent to the moral trait involved in the
offense charged (Sec.51 [a][1], Rule 130, Rules of
Court).
Q: When can evidence of character of the
offended party may be proved?
A: The good or bad moral character of the offended
party may be proved by the accused if it tends to
establish in any reasonable degree the probability
or improbability of the offense charged (Sec. 51
[a][3], Rule 130, Rules of Court). Also, not every
good or bad moral character of the offended party
may be proved under this provision but only those
which would establish the probability or
improbability of the offense charged.
5.ADMISSIONS AND CONFESSIONS
3.
Admission by a co-partner or agent (Sec.

29, Rule 130);
Admission by a co-conspirator (Sec. 30,
Rule 130); and
Admission by privies (Sec. 31, Rule 130)
Q: What does the rule prohibit? (2nd Branch of the

Res Inter Alios Acta Rule)
A: It prohibits the admission of the so-called
propensity evidence which is 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 or similar thing at another time.
Evidence of similar acts or occurrences compels the
defendant to meet allegations that are not
mentioned in the complaint, confuses him in his
defense, raises a variety of relevant issues, and
diverts the attention of the court from the issues
immediately before it. Hence, the evidentiary rule
guards the practical inconvenience of trying
collateral issues and protracting the trial and
prevents surprise or other mischief prejudicial to
litigants. (Cruz v. CA, G.R. No. 126713, July 27,
1998).
b. ADMISSION BY A PARTY
Q: What is admission?
A: It is an act, declaration or omission of a party as
to a relevant fact which may be given in evidence
against him (Sec. 26, Rule 130). It is 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. (Regalado, Vol. II, p. 754, 2008 ed.)
a. RES INTER ALIOS ACTA RULE

Q: What is the principle of res inter alios acta alteri
nocere non debet?
A: This principle literally means things done
between strangers ought not to injure those who
are not parties to it. It has two branches:
1. The rights of a party cannot be prejudiced
by an act, declaration, or omission of
another (Sec. 28).
2. 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 or similar thing at another time
(Sec. 34).
Note: Sections 26 and 32 of Rule 130 refer to

extrajudicial admissions.
Q: What are the requisites for an admission to be

admissible?
A:
1.
2.
3.
4.
Must involve matters of fact and not of

law;
Must be categorical and definite;
Must be knowingly and voluntarily made;
and
Must be adverse to the admitters
interests (Ibid.).

343

2.
When an expert witness testifies that the

author of such is recognized as expert in
that profession. (Sec. 46)
relates and who possesses special knowledge on

questions on which he proposes special knowledge
to express an opinion. (Regalado, Vol. II, p. 802,
2008 ed.)
Q: What are the examples of learned treatises?

A:
1.
2.
3.
Historical works;
Scientific treatises; or
Law (Francisco, pp. 340-341, 1992 ed.)
(11) TESTIMONY OR DEPOSITION AT A FORMER

PROCEEDING (SEC. 47)
Q: What are the requisites for the admissibility of
testimony or deposition at a former proceeding?
A:
1. Witness whose testimony is offered in
evidence is dead or unable to testify;
2. The testimony or deposition was given in
a former case or proceeding, judicial or
administrative, between the same parties
or those representing the same interests;
3. Former case involved the same subject as
that in the present case, although on
different causes of action;
4. Issue testified to by the witness in the
former trial is the same issue involved in
the present case; and
5. Adverse party had an opportunity to
cross-examine the witness in the former
case.
Q: What are the grounds, aside from death, which
make a witness unable to testify in a subsequent
case?
A:
1.
2.
3.
4.
Insanity or mental incapacity or the

former witness loss of memory through
old age or disease;
Physical disability by reason of sickness or
advanced age;
The fact that the witness has been kept
away by contrivance of the opposite
party; or
The fact that after diligent search the
former witness cannot be found.
(Francisco, p. 342, 1992 ed.)
7. OPINION RULE
a. OPINION OF EXPERT WITNESS
Q: Who is an expert witness?

A: He is one who belongs to the profession or
calling to which the subject matter of the inquiry
354
Q: Is there a definite standard of determining the

degree of skill or knowledge that a witness must
possess in order to testify as an expert?
A: None. It is sufficient that the following factors
are present:
1. Training and education;
2. Particularity, first-hand familiarity with
the facts of the case; and
3. Presentation of authorities or standards
upon which his opinion is based. (People
v. Abriol, G.R. No. 123137, Oct. 17, 2001)
Q: What is expert evidence?
A: It is the testimony of a person (expert witness)
possessing knowledge not usually acquired by other
persons in a particular subject matter.
Note: It is admissible when the matter to be
established requires expertise and the witness have
been qualified as an expert.
Q: What is the test in determining whether there

is need to resort to expert evidence?
A: The test is whether the opinion called for will aid
the court in resolving an issue.
b. OPINION OF ORDINARY WITNESS
Q: What is an opinion?
A: It is an inference or conclusion based or drawn
from the facts established.
Q: Is the opinion of a witness admissible in
evidence?
A:
GR: The opinion of a witness is not admissible.
The witness must testify to facts within their
knowledge and may not state their opinion
even on their examination.
XPN:
1. Opinion of an expert witness (Sec.
49);
2. Opinion of an ordinary witness as to:
a. The identity of a person about
whom he has adequate
knowledge;
b. A handwriting with which he
has sufficient familiarity;
REMEDIAL LAW TEAM:

EVIDENCE
c.
d.
The mental sanity of a person

with whom he is sufficiently
acquainted; and
The witness impressions of the
emotion, behavior, condition or
appearance of a person (Sec.
50).
8. CHARACTER EVIDENCE
a. CRIMINAL CASES
b. CIVIL CASES
Q: When may character evidence be admitted in

evidence?
is pertinent to the issue of character

involved in the case (Sec. 51).
Note: As to witnesses to both criminal and civil actions,
the bad moral character of a witness may always be
proved by either party but not evidence of his good
moral character, unless such character has been
impeached (Sec. 14, Rule 132).
Q: What are the requirements provided by the

rules with respect to the nature or substance of
the character evidence which may be admissible?
A:
1.
A:
GR: Character evidence is not admissible in
evidence.
XPN:
1. Criminal cases:
a. The accused may prove his good
moral character which is pertinent to
the moral trait involved in the
offense charged;
b. The prosecution may not prove the
bad moral character of the accused
which is pertinent to the moral trait
involved in the offense charged,
unless in rebuttal when the latter
opens the issue by introducing
evidence of his good moral
character; or
c. As to the offended party, his good or
bad moral character may be proved
as long as it tends to establish in any
reasonable degree the probability or
improbability of the offense charged.
XPN to the XPN:
i. In rebuttal, proof of the bad
character of the victim is not
admissible if the crime was
committed through treachery and
premeditation; and
ii. In rape cases, the evidence of
complainants
past
sexual
conduct, or reputation or opinion
thereof shall not be admitted
unless and only to the extent that
the court finds that such evidence
is material and relevant to the
case (Rape shield, Sec. 6, R.A.
8505).
2.
Civil cases The moral character of either

party thereto cannot be proved unless it
2.
3.
With respect to the accused, such

character evidence must be pertinent to
the moral trait involved in the offense
charged.
With respect to the offended person, it is
sufficient that such character evidence
may establish in any reasonable degree
the probability or improbability of the
offense charged.
With respect to the witness, such
character evidence must refer to his
general reputation for truth, honesty or
integrity, that is affecting his credibility.
9. RULE ON EXAMINATION OF A CHILD WITNESS

a. APPLICABILITY OF THE RULE
Q: In what cases is the Rule on Examination of a
Child Witness applicable?
A: It shall apply in all criminal and non-criminal
proceedings involving child witnesses. This Rule
shall govern the examination of child witnesses who
are victims of crime, accused of a crime, and
witnesses of a crime (Sec. 1).
Q: When are the provisions of the Rules of Court
applicable in the examination of a child witness?
A: The provisions of the Rules of Court on
deposition, conditional examination of witnesses,
and evidence shall be applied in a suppletory
character (Sec. 32).
b. MEANING OF CHILD WITNESS
Q: Who is a child witness?
A: A child witness is 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 care
of himself or protect himself from abuse, neglect,

355

be liable to the contempt power of the
court. (Sec. 31[d])
5.
Physical safety of child; exclusion of

evidence
GR: A child has a right at any court
proceeding not to testify regarding
personal
identifying
information,
including his name, address, telephone
number, school, and other information
that could endanger his physical safety or
his family.
XPN: The court may, however, require the
child to testify regarding personal
identifying information in the interest of
justice [Sec. 31(e)].
6.
Destruction of videotapes and audiotapes

Videotapes and audiotapes produced
under the provisions of this Rule or
otherwise made part of the court record
shall be destroyed after 5 years have
elapsed from the date of entry of
judgment [Sec. 31(f)].
7.
Records of youthful offender: confidential

a. Where he has been charged before
any prosecutor or before any
municipal judge and the charges
have been ordered dropped, all the
records of the case shall be
considered as privileged and may not
be disclosed directly or indirectly to
anyone for any purpose whatsoever.
b. Where he has been charged and the
court acquits him, or dismisses the
case or commits him to an institution
and subsequently releases him, all
the records of his case shall also be
considered as privileged and may not
be disclosed except:
i. To determine if a defendant
may
have
his
sentence
suspended under Art. 192 of
P.D. 603 or if he may be granted
probation under the provisions
of P.D. 968; or
ii. To enforce his civil liability, if
said liability has been imposed
in the criminal action [Sec.
31(g)].
Q: Maximo Gwapito, a 25-year old jeepney driver,

and his 7-year old son, Maximo Gwapito, Jr.,
stepped out of their house in order to buy food.
Upon reaching the street, father and son
encountered Richard Sputnik, Ron Sputnik, Jeric
Angas and Mark Bayawak. The four were
360
apparently waiting for Maximo Gwapito. They

dragged him to a nearby warehouse. Thereafter, a
gunshot was heard from the warehouse. Maximo
Gwapito was seen running out of the warehouse
followed by the four malefactors.
He fell on the ground near the street corner, Angas
shot him four or five times. The tragic occurence
was witnessed by the victim's son and wife. It was
only after 8 years when two of the four culprits
were convicted by the trial court. On appeal, they
impugned the testimony of the child that he was
only 7 years old when he witnessed the shooting,
and that he testified eight years later or long after
that extraordinary event. Is the contention
tenable?
A: No. The court in several cases had given
credence to the testimony of children who had
witnessed the death of their parents. In the case of
Maximo, Jr., the horrible manner in which his father
was killed must have been indelibly engraved in his
uncluttered memory so much so that the passage
of time could not efface it. When he testified, he
was already fifteen years old and a third year high
school student. He was certainly a competent
witness. (People v. Sabater, G.R. No. L-38169, Feb.
23, 1978)
F. OFFER AND OBJECTION
Q: What evidence shall be considered by the
court?
A:
GR: The court shall consider only the evidence
which has been formally offered. The purpose
for which the evidence is offered must be
specified (Sec. 34).
XPN:
1. Marked exhibits not formally offered may
be admitted provided it complies with the
following requisites:
a. must be duly identified by testimony
duly recorded; and
b. must have been incorporated in the
records of the case (Ramos v. Dizon,
G.R. No. 137247, Aug. 6, 2006);
2. Under the Rule on Summary Procedure,
where no full blown trial is held in the
interest of speedy
administration of
justice;
3. In summary judgments under Rule 35
where the judge based his decisions on
the pleadings, depositions, admissions,
affidavits and documents filed with the
court;
REMEDIAL LAW TEAM:

EVIDENCE
4.
5.
6.
Documents whose contents are taken

judicial notice of by the court;
Documents whose contents are judicially
admitted; or
Object evidence which could not be
formally offered because they have
disappeared or have become lost after
they have been marked, identified and
testified on and described in the record
and became the subject of crossexamination of the witness who testified
on them during the trial.
A:
1. OFFER OF EVIDENCE
Q: What are the rationales in stating the purpose
for which the evidence is being offered?
A:
1. For the court to determine whether that
piece of evidence should be admitted or
not;
2. Evidence submitted for one purpose may
not be considered for any other purpose;
and
3. For the adverse party to interpose the
proper objection.
Q: Noelle filed a complaint for recovery of
possession and damages against Kristina. In the
course of the trial, Noelle marked his evidence but
his counsel failed to file a formal offer of evidence.
Kristina then presented in evidence tax
declarations in the name of his father to establish
that his father is a co-owner of the property. The
court ruled in favor of Kristina, saying that Noelle
failed to prove sole ownership of the property in
the face of Kristinas evidence. Was the court
correct? Explain briefly.
A: Yes. The court shall consider no evidence which
has not been formally offered. The trial court
rendered judgment considering only the evidence
offered by Kristina. The offer is necessary because it
is the duty of the judge to rest his findings of fact
and his judgment only and strictly upon the
evidence offered by the parties at the trial (People
v. Pecardal, G.R. No. 71381, Nov. 24, 1986). (2007
Bar Question)
Q: What are the stages in the presentation of
documentary evidence?
2. WHEN TO MAKE AN OFFER

Q: How and when should a party make the offer of
evidence?
A:
Testimonial Evidence
Offer must be made at the
time the witness is called
to testify.
Every time a question is
propounded to a witness,
there is an implied offer of
the evidence sought to be
elicited by the question.
Documentary and
Object Evidence
Must be made after the
presentation of partys
testimonial evidence,
and before resting his
case.
The evidence is only
offered once, after all
the testimonial evidence
and prior to the resting
of the case for a party.
Note: The offer shall be done orally unless allowed by

the court to be in writing.
361

3. OBJECTION
2.
Q: What are the purposes of objections?

A:
1.
2.
3.
4.
5.
To keep out inadmissible evidence that

would cause harm to a clients cause;
To protect the record, i.e. to present the
issue of inadmissibility of the offered
evidence in a way that if the trial court
rules erroneously, the error can be relied
upon as a ground for a future appeal;
To protect a witness from being
embarrassed by the adverse counsel;
To expose the adversarys unfair tactics
like his consistently asking obviously
leading questions; and
To give the trial court an opportunity to
correct its own errors and at the same
time warn the court that a ruling adverse
to the objector may supply a reason to
invoke a higher courts appellate
jurisdiction.
(Riano,
Evidence:
A
Restatement for the Bar, p. 462, 2009 ed.)
Q: When should an objection be made?

A: Objection to evidence offered orally must be
made immediately after the offer is made.
Objection to a question propounded in the course
of the oral examination of a witness shall be made
as soon as the grounds therefore shall become
reasonably apparent. An offer of evidence in
writing shall be objected to within 3 days after
notice of the offer unless a different period is
allowed by the court. In any case, the grounds for
objection must be specified (Sec. 36).
Q: What is the difference between a "broadside"
objection and a specific objection to the admission
of documentary evidence?
A: A broadside objection is a general objection such
as incompetent, irrelevant and immaterial and does
not specify any ground; while a specific objection is
limited to a particular ground. (1994 Bar Question)
Q: What are the two kinds of objections? Give an
example of each.
A:
1.
362
Irrelevant The evidence being presented

is not relevant to the issue (e.g. when the
prosecution offers as evidence the alleged
offer of an insurance company to pay for
the damages suffered by the victim in a
homicide case); and
Incompetent The evidence is excluded

by law or rules (Sec. 3, Rule 138) (e.g.
evidence obtained in violation of the
Constitutional
prohibition
against
unreasonable searches and seizures).
Alternative Answers:
1. Specific objections e.g. parole evidence
and best evidence rule
General objections e.g. continuing
objections (Sec. 37).
2. a. objection to a question propounded in
the course of the oral examination of the
witness; and
b. objection to an offer of evidence in
writing. (1997 Bar Question)
4. REPETITION OF AN OBJECTION
Q: What is the rule on continuing objections?
A:
GR: When it becomes reasonably apparent in
the course of the examination that the
questions asked are of the same class as those
to which objection has been made (whether
sustained or overruled), it shall not be necessary
to repeat the objection, it being sufficient for
the adverse party to record his continuing
objection to such class of questions (Sec. 37).
XPNs:
1. Where the question has not been
answered, it is necessary to repeat the
objection when the evidence is again
offered or the question is again asked;
2. Incompetency is shown later;
3. Where objection refers to preliminary
question, objection must be repeated
when the same question is again asked
during the introduction of actual
evidence;
4. Objection to evidence was sustained but
reoffered at a later stage of the trial;
5. Evidence is admitted on condition that its
competency or relevance be shown by
further evidence and the condition is not
fulfilled,
the
objection
formerly
interposed must be repeated or a motion
to strike out the evidence must be made;
and
6. Where the court reserves the ruling on
objection, the objecting party must
request a ruling or repeat the objection.
REMEDIAL LAW TEAM:

EVIDENCE
5. RULING
Q: When should the court make its ruling on the
objection?
A: It must be given immediately after the objection
is made, unless the court desires to take a
reasonable time to inform itself on the question
presented; but the ruling shall always be made
during the trial and at such time as will give the
party against whom it is made an opportunity to
meet the situation presented by the ruling (Sec. 38).
6. STRIKING OUT OF AN ANSWER
Q: What are the modes of excluding inadmissible
evidence?
A:
1.
2.
Objection when the evidence is offered.

Motion to strike out or expunge:
a. When the witness answers prematurely
before there is reasonable opportunity
for the adverse party to object, and
such objection is found to be
meritorious;
b. When the answers are incompetent,
irrelevant, or improper (Sec. 39);
c. When the witness becomes unavailable
for cross-examination through no fault
of the cross-examining party;
d. When the answer is unresponsive;
e. When the testimony was allowed
conditionally and the condition for its
admissibility was not fulfilled (Riano,
467, 2009 ed.);
f. When a witness has volunteered
statements in such a way that the party
has not been able to object thereto;
g. When a witness testifies without a
question being addressed to him; or
h. When a witness testifies beyond the
ruling of the court prescribing the limits
within which he may answer.
the offering party. (Riano, Evidence: A Restatement

Q: May a direct testimony given and allowed
without a prior formal offer be expunged from the
record?
A: No. When such testimony is allowed without any
objection from the adverse party, the latter is
estopped from questioning the non-compliance
with the requirement.
Q: What is the remedy if a court improperly
excludes an otherwise admissible evidence?
A: The partys remedy is to tender the excluded
evidence by:
1. Testimonial evidence State for the
record the name and other personal
circumstances of the witness and the
nature and substance of the proposed
testimony.
2. Object/documentary evidence Attach to
or make it a part of the record (Sec. 40).
7. TENDER OF EXCLUDED EVIDENCE
Q: What is tender of excluded evidence or offer of
proof?
A: When an attorney is not allowed by the court to
present testimony which he thinks is competent,
material and necessary to prove his case, he must
make an offer of proof. This is the method properly
preserving the record to the end that the question
may be saved for purposes of review. (Caraig,
Revised Rules of Evidence 2004 ed., p. 337)
Q: How is tender of excluded evidence made?
A:
1.
2.
Q: May objections be waived?

A: Yes, because the right to object is merely a
privilege which the party may waive. (People v.
Martin, G.R. No. 172069, Jan. 30, 2008)
Q: What is the extent of the waiver for failure to
object?
A: It only extends to the admissibility of the
evidence. It does not involve an admission that the
evidence possesses the weight attributed to it by
As to documentary or object evidence: It

may have the same attached to or made
part of the record.
As to oral evidence: It may state for the
record the name and other personal
circumstances of the witness and the
substance of the proposed testimony.
Q: What are the purposes of tender of excluded

evidence?
A:
1.
To allow the court to know the nature of

the testimony or the documentary
evidence and convince the trial judge to
permit the evidence or testimony; and

363

2.
To create and preserve a record for

appeal. (Riano, Evidence: A Restatement
Q: Distinguish English Exchequer rule from

harmless error rule.
A:
Q: Distinguish offer of proof from offer of

evidence.
A:
OFFER OF
PROOF/TENDER OF
EXCLUDED EVIDENCE
OFFER OF EVIDENCE
Only resorted to if
admission is refused by
the court for purposes
of
review on appeal
Refers
to
testimonial,
documentary or object
evidence that are presented
or offered in court by a
party so that the court can
consider his evidence when
it comes to the preparation
of the decision
Q: How is an offer of evidence made?

A:
1.
2.
3.
Before the court has ruled on the

objection, in which case its function is to
persuade the court to overrule the
objection or deny the privilege invoked;
After the court has sustained the
objection, in which case its function is to
preserve for the appeal the evidence
excluded by the privilege invoked;
Where the offer of proof includes the
introduction of documents, or any of the
physical evidence, the same should be
marked for identification so that they may
become part of the record. (Herrera, Vol.
VI, p. 344)
Q: When is offer or proof not required?

A:
1.
2.
3.
364
When the question to which an objection

has been sustained clearly reveals on its
face the substance, purpose and
relevancy of the excluded evidence;
When the substance, purpose and
relevancy of the excluded evidence were
made known to the court either in the
court proceedings and such parts appears
on record;
Where evidence is inadmissible when
offered and excluded, but thereafter
becomes, it must, be re-offered, unless
the court indicates that a second offer
would be useless. (Herrera, Vol. VI, p.
344-345)
ENGLISH EXCHEQUER
RULE
It provides that a trial
court's error as to the
admission of evidence
was presumed to have
caused prejudice and
therefore, almost
automatically required
new trial.
HARMLESS ERROR RULE

The appellate court will
disregard an error in the
admission of evidence
unless in its opinion, some
substantial wrong or
miscarriage of justice has
been occasioned.
Note: We follow the harmless error rule, for in dealing

with evidence improperly admitted in the trial, courts
examine its damaging quality and its impact to the
substantive rights of the litigant. If the impact is slight
and insignificant, appellate courts disregard the error
as it will not overcome the weight of the properly
admitted evidence against the prejudiced part (People
v. Garcia, G.R. No. 105805, Aug. 16, 1994).
G. SUPREME COURT RULINGS AS OF DECEMBER

2010
EMMA K. LEE v. COURT OF APPEALS and RITA K. LEE, et
al. G.R. No. 177861, July 13, 2010 (ABAD, J.)
Spouses Lee Tek Sheng (Lee) and Keh Shiok Cheng (Keh)
entered the Philippines as immigrants and they had
11children (respondents herein). Subsequently, a woman
named Tiu Chuan (Tiu) served as the housemaid and upon
Kehs death, the respondent children found out that the
Tiu children claims that they are also Lee and Kehs
children. Respondent children then filed before the RTC a
special proceeding for the deletion from the certificate of
live birth of Emma Lee, one of Lees other children, the
name Keh and replace the same with the name Tiu to
indicate her true mothers name. Respondent children
then filed an ex parte request for the issuance of a
subpoena ad testificandum to compel Tiu, Emma Lees
presumed mother, to testify in the case. The RTC granted
the motion but Tiu moved to quash the subpoena,
claiming that it was oppressive and violated Section 25,
Rule 130 of the Rules of Court, the rule on parental
privilege, she being Emma Lees stepmother. The RTC
quashed the subpoena it issued for being unreasonable
and oppressive considering that Tiu was already very old
and that the obvious object of the subpoena was to
badger her into admitting that she was Emma Lees
mother.
ISSUE: Can Tiu, as the stepmother, be compelled to testify
in said proceeding? (Yes)
HELD: As the CA correctly ruled, the grounds cited
unreasonable and oppressiveare proper for subpoena
ad duces tecum or for the production of documents and
things in the possession of the witness, a command that
has a tendency to infringe on the right against invasion of
REMEDIAL LAW TEAM:


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EVIDENCE

7. BURDEN OF PROOF AND BURDEN OF EVIDENCE

Burden of going forward Partys obligation of

Q: Distinguish burden of proof from burden of

being, from introducing

to the other party. It

Note: The burden of proof is on the party who asserts

Q: What is the test to determine where the burden

Q: Who has the burden of evidence?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

UST GOLDEN NOTES 2011

admitted the killing. (Cabuslay v. People and

Q: What are the degrees of proof necessary to

Civil case Preponderance of evidence

Q: Who has the burden of proof if the accused

XPN to the XPN: In civil cases, even if the

Facts admitted or not denied provided they

the burden of going

REMEDIAL LAW TEAM:

in derogation of the deed, or from denying

A certain inference must

Note: Estoppel may attach even though the landlord

Discretion is vested in the

If the title asserted is one that is alleged to have been

Reduced to fixed rules

Derived wholly and

Q: What are the requisites for a party to be

Need not be pleaded or

Has to be pleaded and

Conclusive presumptions (presumptions juris

Q: What are the requisites before estoppel can be

Q: What is a conclusive presumption?

A: Conclusive presumptions are those which are not

Estoppel in pais Whenever a party has, by

Conduct amounting to false representation

Lack of knowledge and of the means of

Q: What are disputable presumptions?

Estoppel by deed A party to a property

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

UST GOLDEN NOTES 2011

Unlawful act is done with an unlawful intent.

Person intends the ordinary consequences of

Person takes ordinary care of his concerns.

Evidence willfully suppressed would be adverse

Obligation delivered up to the debtor has been

Prior rents or installments had been paid when

A person is innocent of a crime or wrong.

Money paid by one to another was due to the

10. A person found in possession of a thing taken

11. Person in possession of an order on himself for

13. Official duty has been regularly performed.

GR: Presumption applies to both civil as well as

REMEDIAL LAW TEAM:

XPN: Petition for writ of amparo

15. All the matters within an issue raised in a case

17. Ordinary course of business has been followed.

absence of 10 years is required; and if he

Person on board a vessel lost during a sea

24. Acquiescence resulted from a belief that the

18. There was a sufficient consideration for a

25. Things have happened according to the

19. Negotiable instrument was given or indorsed

26. Persons acting as co-partners have entered