Evid Jara Notes

2011-
2012

Layno, Ian

Rabajante, Diory
Morana, Hansel
Reyes, Harly
Suyat, Kat
Baraoidan, Kimberly
[JARA POWER
NOTES ON
EVIDENCE]
This is merely a compilation of questions asked
by Dean Jara for Evidence in his 2011-2012
class. The writers guarantee the integrity of all
the questions and the materials used in the
making of this recitation reviewer. However,
there is no guarantee that these will be the
same set of questions he will ask on the
subsequent semesters/years. Read this
together with Riano, Regalado, Moran,
Memaid, and Jara Notes. Because you know Si
Jara yan eh.
2011-2012 [JARA POWER NOTES ON EVIDENCE]

JARA RECITATION NOTES FOR EVIDENCE Define a specific denial.
PRELIMINARY MATTERS It refers to a denial of the material facts or facts

alleged in the pleading of the claimant essential
What is Evidence? to his cause of action.
Evidence is the means, sanctioned by these A defendant must specify each material
rules, of ascertaining in a judicial proceeding the allegation of fact the truth of which he does not
truth respecting a matter of fact. admit and, whenever practicable, shall set forth
the substance of the matters upon which he
Can Evidence be used to answer questions relies to support his denial. Where a defendant
of fact? How about questions of law? desires to deny only a part of an averment, he
shall specify so much of it as is true and material
As provided for by the definition, Evidence can and shall deny only the remainder. Where a
be used to answer ONLY questions of fact, and defendant is without knowledge or information
not questions of law. sufficient to form a belief as to the truth of a
material averment made to the complaint, he
Why cannot we use Evidence to answer shall so state, and this shall have the effect of a
disputes of law? denial. (Sec.10, Rule 8)
Under our legal system, it is conclusively Can there be a question of fact when a party
presumed that everybody knows the law. raises an affirmative defense?
Ignoratia legis non-excusat. All parties to the
dispute must know the law applicable in the NO. When a party raises an affirmative defense,
case. There could be o dispute between the he in effect, hypothetically admits the material
parties and even the court itself concerning the allegations of his opponent in his pleadings.
truth about a matter of law.
In a case where a party defaults, is there still
Distinguish Questions of Fact from a need to present evidence?
Questions of Law
YES. The court should still require the non-
Question of fact (also known as a point of fact) is defaulting party to present his evidence. There is
a question which must be answered by still a need to prove the allegations made in the
reference to facts and evidence, and inferences complaint.
arising from those facts. On the other hand, a
question of law is a question which must be In every case that requires adjudication, is
answered by applying relevant legal principles, there a need to present evidence at all
by an interpretation of the law. times?
Is the issue on jurisdiction a question of fact No. There are instances when Evidence is not
or law? required to be presented such as the following:
It is a question of law. Jurisdiction pertains to the 1. When no factual issue exists in a case.
power of the Courts to decide cases. It is vested 2. Where the case presents only a
by substantive law. Any issue relating to it is a question of law.
legal question. 3. When the pleadings in a civil case do
not tender an issue of fact.
When does a question of fact arise? 4. Evidence may also be dispensed with
by agreement of the parties.
When the issues are already joined. 5. Matters of judicial notice (See Rule
129).
When does that joinder happen? 6. Matters judicially admitted (See Rule
129).
Upon the filing of an answer which contains a
specific denial as to the existence of a certain
fact.
Layno. Rabajante. Morana. Reyes. Suyat. Baraoidan| 2


Are evidentiary rules also found outside True or False. Probandum is always
Rules 128-133? determined by the allegations in the
pleadings.
YES.
FALSE. Probandum may also be determined by
Illustration? the pre-trial order and it may change during the
course of the trial (see Sec. 5, Rule 10).
Note: Example ni Jara ito. Supposing in a
complaint for sum of money, the plaintiff alleges Can probandum change easily in a criminal
that the defendant is indebted to him for P10 case?
million pesos. Upon the presentation of
evidence, the plaintiff presents to the court a No. probandum cannot be changed the same
promissory note evidencing the indebtedness of way it can be changed in a criminal case. There
the defendant. The note however indicates that is a necessity to amend the pleadings according
such indebtedness amounts to P30 million to the Rules on Criminal Procedure.
pesos. May the court admit aforementioned
evidence even if the original complaint only When do we apply the Rules on Evidence?
alleged P10 million? YES. Under Sec. 5, Rule
10 (Amendment to conform or to authorize The rules of evidence, being part of the Rules of
presentation of evidence). You see, this is an Court, apply only to judicial proceedings, subject
evidentiary rule outside Rules 128-133 (This to inapplicable cases in Sec. 4, Rule 128.
was a total mind-fuck. Please take note of this
example of his). Can we apply evidence in Summary
Proceedings?
What is Factum Probandum and Factum
Probans? Yes. Summary proceedings partake the nature
of judicial proceedings. Being the case, we can
Factum probandum is the ultimate fact or the definitely apply the Rules on Evidence in such.
fact sought to be established. Factum Probans
pertains to the evidentiary fact or the facts by Do we present Evidence in Summary
which the Probandum is established. The former Proceedings? If so, what then is our
refers to the proposition, while the latter refers to evidence?
the materials which establish that proposition.
YES. Evidence is still presented by virtue of the
Does probandum exist in a case where a pleadings and affidavits submitted before the
party defaults? court. They partake the nature of documentary
evidence and they serve to prove an issue of
YES. Party still needs to present evidence ex- fact provided that they are admissible pursuant
parte. to law.
A prosecutor files in the court an information How about in Quasi-Judicial Proceedings?

for homicide. Is there probandum already?
Yes. The same apply by analogy whenever
NO. Because the accused has yet to be practicable and convenient except where the
arraigned. In criminal cases, the arraignment of governing law on that particular proceeding
the accused determines whether or not there specifically adopts the rules of evidence in the
exists a probandum. Rules of Court.
If the accused pleads guilty to a crime, does Distinguish Proof from Evidence.
that negate the existence of probandum?
Proof is not the evidence itself. There is proof
Not in all instances. Probandum is still only because of evidence. It is merely the
necessary when the case involves a heinous probative effect of evidence and is the conviction
crime. or persuasion of the mind resulting from a
consideration of evidence. On the other hand,


Evidence is the medium by which a fact is As to Quality:
proved or disproved.
1. Relevant
What are the different classifications of 2. Material
evidence? 3. Admissible
4. Credible
According to Form: 5. Competent
1. Object: evidence that is directly What are the Axioms of Admissibility?

addressed to the senses of the court
and consists of tangible things exhibited Axiom of Relevance: None but the facts having
or demonstrated in open court, in an a rational probative value are admissible.
ocular inspection, or in a designated
place. Axiom of Competence: Facts having a rational
2. Documentary: evidence supplied by probative value are admissible unless some
written instruments or derived from specific rule prohibits their admission.
conventional symbols, such as letters,
by which ideas are represented on What are the different classes of
material substances. admissibility according to jurisprudence?
3. Testimonial: submitted to the court
through the testimony or the depositon 1. Multiple Admissibility of Evidence
of a witness. where the evidence is relevant and
competent for two or more purposes,
As to ability to establish a fact in dispute: such evidence may be admitted for any
or all purposes which it is offered
1. Direct: proves a fact in dispute without provided it satisfies all the requirements
any aid of any inference or presumption. of law for the admissibility therefor.
2. Circumstantial: proof of fact or facts 2. Conditional Admissibility of Evidence
which taken singly or collectively, the where evidence initially offered appears
existence of a fact in dispute may be to be immaterial or irrelevant unless it is
inferred as a necessary or a probable connected with facts to be subsequently
consequence. proved, such evidence may be admitted
under the condition that the subsequent
As to Probative Value: facts shall be proven; otherwise, they
shall be stricken out from the record.
1. Prima Facie: that which standing alone 3. Curative Admissibility of Evidence
unexplained, is sufficient to establish the Where improper evidence was admitted
proposition affirmed. against the opposition of another party,
2. Conclusive: Evidence which is he may be allowed to contradict it with
incontrovertible. similar improper evidence.
3. Corroborative: additional evidence of a
different kind and character from that WHAT NEED NOT BE PROVEN
already given tending to prove the same
point. What are some matters that do not require
4. Cumulative: additional evidence of the any evidence?
same kind and character proving the
same fact. 1. Where no factual issue exists in a case.
2. Where the case presents only a
As to weight and acceptability: question of law.
3. When the pleadings in a civil case do
1. Primary: evidence which affords the not tender an issue of fact.
greatest certainty of the fact in question. 4. When there is an agreement made by
2. Secondary: evidence which is inferior to the parties (usually done in the pre-trial).
primary evidence. 5. When courts have taken judicial notice
of such matters.


What do you mean by Judicial Notice? ambassador, or a foreign public official, and
para sigurado, idaan mo na din sa DFA).
It is the cognizance of certain facts which judges
may properly take and act upon without proof. Do we still need certification that the said
foreign law exists even though the existence
Why? I thought facts must be proven in of such has been stipulated by both parties?
court?
The general rule is that the foreign law must still
Yes. That is the general rule. However, there are be proven as a matter of fact. However, in the
some matters, on the basis of expediency and case of PCIB vs. Escolin, the Supreme Court
convenience, which do not require proof. The held that where the foreign law is within the
need for evidence is set aside by the rules. actual knowledge of the court such as when the
law is generally well known, had been ruled
What are matters subject of Judicial Notice? upon in previous cases before it and none of the
parties claim otherwise, the court may take
1. Existence and territorial extent of states; judicial notice of the foreign law. In essence, the
2. Political history, forms of government, Escolin case gives the requisites for the
and symbols of nationality; exception:
3. Law of nations
4. Admiralty and maritime courts of the 1. Actual knowledge by the Court;
world and their seals; 2. Foreign law is generally well known;
5. Political constitution and history of the 3. Stipulation by the parties.
Philippines;
6. Official acts of the legislative, executive, What if the foreign law is Common Law?
and judicial departments of the How do you prove such creature?
Philippines;
7. Laws of nature; Common law (also known as case law or
8. Measure of time; and precedent) is law developed by judges through
9. Geographical divisions. decisions of courts and similar tribunals (as
opposed to statutes adopted through the
What is the doctrine of Processual legislative process or regulations issued by the
Presumption? executive branch). You prove such by getting a
copy of the foreign courts decision and having
The foreign law, whenever applicable, should be the same certified in the like manner as you
proved by the proponent thereof, otherwise, certify foreign statutes.
such law shall be presumed to be exactly the
same as the law of the forum. Is Judicial Notice absolute according to the
Rules?
Is it not the duty of the Courts to apply the
Local Law? No. There are some matters that require hearing
before courts can take judicial notice.
It is. However, there are certain transactions and
legal acts that are bound by laws of foreign When does it require hearing?
jurisdictions. It is important that courts respect
the governing laws over such acts. However, the 1. During trial, the court, on its own
existence of such laws must be proven as a initiative, or on request of a party, may
matter of fact. announce its intention to take judicial
notice of any matter and allow the
How do you then prove foreign law? parties to be heard thereon.
2. After the trial, and before judgment or on
As for foreign statutes and issuances, you prove appeal, the court may take judicial
the foreign law through acquiring a copy of the notice of any matter and allow the
said document which is certified by the agent of parties to be heard thereon if such
the said country through the DFA (As per Jaras matter is decisive of a material issue in
lecture, get a copy of the law abroad or in the the case.
embassy, have it certified through a consul,


What are Judicial Admissions? Usually in cases where there is an
amendment of pleadings, a judicial
It is an admission, verbal or written, made by a admission is transformed into an
party in the course of the proceedings. extrajudicial admission. Will the same hold
true in the problem above?
Note: for an extensive discussion on
admissions, please see the memory aid. Yes. Party must then raise such admissions as
evidence.
Lather. Rinse. Repeat.
What happens to the judicial admissions
May a complaint contain a judicial contained in the pleadings which are
admission? subsequently amended?
Yes, if there is an allegation that is contrary to An amended pleading supersedes the pleading
the interests of the complainant. In evidence, that it amends. However, admissions in
such admission must be DISADVANTAGEOUS superseded pleadings may be received in
to the one who made the complaint (Jara evidence against the pleader; and claims or
statement). defenses alleged therein not incorporated in the
amended pleading shall be deemed waived
Are admissions made by a counsel binding (Sec.8, Rule 10). Such admissions, however,
upon his client? are considered extra-judicial admissions. Having
been amended, the original complaint lost its
Generally, Yes. Unless of course the lawyer was character as a judicial admission, which would
patently stupid. have required no proof, and became merely an
extrajudicial admission, the admissibility of
Note: The function of the rule that negligence which, as evidence, required its formal offer
or mistake of counsel in procedure is imputed to (Torres vs. CA, L-37420-21, July 31, 1984).
and binding upon the client, as any other
procedural rule, is to serve as an instrument to In appealed cases, may there be a verbal
advance the ends of justice. When in the judicial admission?
circumstances of each case the rule desert[s] its
proper office as an aid to justice and becomes Yes. In cases for a petition for new trial.
its great hindrance and chief enemy, its rigors
must be relaxed to admit exceptions thereto and What the doctrine of adoptive admission?
to prevent a manifest miscarriage of justice.
An adoptive admission is a partys reaction to a
The court has the power to except a particular statement or action by another person when it is
case from the operation of the rule whenever the reasonable to treat the partys reaction as an
purposes of justice require it [Aguilar v. CA, 320 admission of something stated or implied by the
Phil. 456 (1995)]. other person (Estrada v. Desierto, G.R. Nos.
146710-15). In this case, Estradas admission of
What if because of the stupidity of the his resignation as President was based on the
lawyer, he made a general denial of all the diary of Angara.
allegations?
Supposing evidence was presented tending
Normally, the case would be ripe for judgment to prove a substantially different (usually
on the merits. However, the client may still greater) claim which was not subject of a
amend his pleading as a matter of right previous admission by the adverse party
especially if there is no reply yet. during the pre-trial, may the court admit such
evidence?
YES. Rule 10, Sec. 5.


Does information contain admissions in so since we find that far too much of the space in
far as People of the Philippines are the transcript is taken up with the record of petty
concerned? skirmishes in court resulting from objections
over the admission of evidence.
No.
Issue: WON the technical rules of evidence may
Is there a need to wait for a response? be relaxed in admitting evidence.
No. Held: Yes. In the course of long experience we

have observed that justice is most effectivly and
Is there a need for a judicial admission to be expenditiously administered in the courts where
prejudicial to the admitter? trivial objections to the admission of proof are
received with least favor. The practice of
No. The self-serving rule which prohibits the excluding evidence on doubtful objection to its
admission or declaration of a witness in his favor materiality or technical objection to the form of
applies only to extra-judicial admissions. the questions should be avoided. In a case of
any intricacy it is impossible for a judge of first
Self-serving statements, even if made in the instance, in the early stages of the development
complaint, are admissible because the claimant of the proof, to know with any certainty whether
or the witness making it may be cross-examined testimony is relevant or not; and where there is
on such statements. However, whether it will be no indication of bad faith on the part of the
credible or not, is a matter of appreciation on the attorney offering the evidence, the court may as
part of the court. a rule safely accept the testimony upon the
statement of the attorney that the proof offered
What was the case of Prats vs. Phoenix? will be connected later. Moreover, it must be
remembered that in the heat of the battle over
Facts: This action was instituted in the Court of which he presides a judge of first instance may
First Instance of the City of Manila by Prats & possibly fall into error in judging of the relevancy
Co., a mercantile partnership, for the purpose of of proof where a fair and logical connection is in
recovering from the Phoenix Insurance Co., of fact shown. When such a mistake is made and
Hartford, Connecticut, the sum of P117,800.60, the proof is erroneously ruled out, the Supreme
with interest, by reason of a loss alleged to have Court, upon appeal, often finds itself
been sustained by the plaintiff, on August 21, embarrassed and possibly unable to correct the
1924, from a fire, it being alleged that said loss effects of error without returning the case for a
was covered by policy of insurance No. 600217, new trial, -- a step which this court is always
for the sum of P200,000, issued by the very loath to take. On the other hand, the
defendant company to the plaintiff. For answer, admission of proof in a court of first instance,
the defendant, Pheonix Insurance Co., admitted even if the question as to its form, materiality, or
the insurance of the policy of insurance but, by relevancy is doubtful, can never result in much
way of special defense, alleged, among other harm to either litigant, because the trial judge is
things, that the fire in question had been set by supposed to know the law; and it is its duty,
the plaintiff, or with its connivance, and that the upon final consideration of the case, to
plaintiff had submitted under oath to the distinguish the relevant and material from the
defendant a fraudulent claim of loss, in irrelevant and immaterial. If this course is
contravention of the express terms of the policy. followed and the cause is prosecuted to the
The trial of the case covered a period of almost Supreme Court upon appeal, this court then has
two years, in which fifty separate sessions were all the material before it necessary to make a
held, without counting the numeruos hearings correct judgment.
upon the taking of the deposition of Francisco
Prats, a partner in the plaintiff firm, whose In this connection it should be remembered that
testimony was taken at the instance of the many of the technical rules of evidence which
defendant. Taken all together, the time thus are often invoked in our courts were originally
consumed was out of all proportion to the worked out in England and the United States,
difficulties of the case. An examination of the where the jury system prevails. These rules
voluminous transcript reveals at least part of the were adopted for the purpose of keeping matter
reason for this inordinate consumption of time; from juries which - it was supposed - might


unduly influence them in deciding on the facts. Are there other terms for object evidence?
They have little pertinence to a system of
procedure, like ours, in which the court is judge 1. Real
both of law and facts, and in which accordingly it 2. Physical
is necessary for the court to know what the proof 3. Demonstrative
is before it rules upon the propriety of receiving 4. Autoptic preference.
it. Apart from these considerations is the
circumstance mentioned above that the time Are there rules on exclusion for object
consumed in the trial on such collateral points is evidence?
generally many times greater than would be
consumed if the questionable testimony should Section 1 of Rule 130 provides that when an
be admitted for what it is worth. What has been object is relevant to the fact in issue, it may be
said above finds special relevancy in this case in exhibited to, examined or viewed by the court.
view of the action of the trial court in refusing to
consider the proof referred to in the opinion Aside from being Relevant?
showing that the plaintiff, while engaged in
assembling its stock, procured maritime Generally, there could be no rules for the
insurance upon a fictitious importation of silk. exclusion of object evidence.
We earnestly commend the maintenance of
liberal practice in the admission of proof. Are there exceptions?
Our examination of the case leads to the
conclusion that the result reached by the trial 1. The exhibition of such object is contrary
court was correct. to public policy, morals or decency;
2. Observation of such evidence in an
What happened in the case of Maceda? ocular inspection would result in delays,
inconvenience, unnecessary expenses
Facts: This is a criminal action for slight slander out of proportion to the evidentiary value
instituted in the justice of the peace court of of such object;
Pasig, Rizal, against defendants Generoso 3. Such object evidence would be
Maceda and Corazon Maceda and which was misleading or confusing;
dismissed on the ground that the offense had 4. The testimonial or documentary
already prescribed. The offense was allegedly evidence already presented in curt
committed on July 21, 1940, and the action was already portrays the object in question
filed on October 22, 1940, that is three months as to render a view thereof
and one day after the supposed commission unnecessary.
thereof. The private attorney for the offended 5. Those evidence acquired through illegal
party made an admission to the effect that no searches and seizures.
damages had been sustained by the latter.
What do you call to those evidence acquired
Issue: WON the offended party may be bound through unlawful searches and seizures?
by the admission of his attorney.
Derivative Evidence.
Held: In the instant case, the supposed
admission is denied. Besides, no attorney can What are the categories of Object Evidence?
waive his client's cause of action unless with the
consent of the client, and, in the instance case, 1. Unique objects that have readily
the admission attributed to the private identifiable marks.
prosecuting attorney is not alleged to have been 2. Objects made unique objects that are
made with the offended party's consent. readily made identifiable.
3. Non-unique objects with no identifying
OBJECT EVIDENCE marks and cannot be marked.
What is Object Evidence?
Objects as evidence are those addressed to the

senses of the court.


How does the court conduct an ocular there was present as in interested, spectator,
inspection? another witnesses, who, without being sworn,
could tell the truth and nothing but the truth. This
The court goes to the place where the object was the colt. The colt was separated from the
evidence is located, whenever the said object mare of the complaining witness and turned
cannot be brought to the chambers of the court loose; it at once went back to this mare. The colt
because it is an immovable or moving such was then taken to the mare of the accused; but
object would cause undue inconvenience. showed its dislike for the mare and tried to find
the mare of the complaining witness. Another
Is ocular inspection part of the judicial colt was placed near the mare of the
proceedings? complaining witness; thereupon the mare and
that colt both resisted. This was a practical
Yes. It is part of the trial. Inasmuch as evidence demonstration worthy of a Solomon by which the
is thereby being received, such inspection colt was able to testify by manifesting all the
should be made in the presence of the parties or signs of the young, whether human or not, on
at least with previous notice to them of the time finding a long lost mother.
and place set for the view.
In the case of Tegrado, why did the court
Is the judge always needed to be present in gave reference to King Solomon?
the ocular inspection?
A Solomonic approach was done in the case of
No. There are certain evidence-gathering Tegrado because of the way the court arrived
procedures that do not require the presence of with a proof through the use of demonstrative
the judge such as those proceedings conducted evidence, in observing the demeanor of the
by commissioners. horse in order to determine its true owner.
Can there be a practical mechanism to allow What was the object evidence in Tegrado?
the inspection while dispensing the need for
the presence of the judge? The court observed the horse and its demeanor.
I just answered your question bitch. What happened in the case of People vs.
Gutierrez?
What is the case of US vs. Tegrado?
At around 4:45 p.m. on September 12, 2002, the
A colt valued at P34 was stolen from Valeriano police station of Ramos, Tarlac acting on a tip
Blanca. It was subsequently found in the regarding a shabu transaction (drug-pushing)
possession of Agapito Partolan. The latter taking place somewhere in Purok Jasmin,
testified that he bought the animal from Zacarias Poblacion Norte, dispatched a three-man team
Tegrado, the accused. The accused, however, composed of PO3 Romeo Credo, P/Insp.
claimed that the colt was raised from a mare Napoleon Dumlao, and SPO1 Restituto
belonging to him and then sold to Partolan. Fernandez to the place mentioned. Arriving at
Identification of the colt to determine if its mother the target area, the three noticed Fernando and
was a mare belonging to the complainant one Dennis Cortez under a santol tree handing
Valeriano Blana or if its mother was a mare plastic sachets containing white crystalline
belonging to the accused Zacarias Tegrado is, substance to certain individuals. At the sight of
therefore, the determining factor. the police officers, Fernando and the others
scampered in different directions. After a brief
The colt was identified by a number of witnesses chase, however, one of the three police
as the property of Blanca. Other witnesses operatives caught up with and apprehended
testified to having seen the colt following a mare Fernando, then carrying a bag.
belonging to the accused. Whom shall we
believe? We could, of course, rest our Without a trace of equivocation, the RTC and
conclusion on the findings of the trial court. We later the CA held that the prosecution had
could, in addition, point out grave discripancies discharged the burden of proving all the
in the testimony of the witnesses for the elements of the crime charged. Since Fernando
defense, which argues against its reliability. But was caught carrying the incriminating bag after


the police had been tipped off of drug pushing in to receipt in the forensic laboratory to
the target area, any suggestion that he was not safekeeping to presentation in court for
in actual possession or control of the prohibited destruction. Such record of movements and
drug hidden in the area would be puny. Thus, custody of seized item shall include the identity
ownership of the bag is truly inconsequential. and signature of the person who held temporary
custody of the seized item, the date and time
We emphasize at this juncture that in no when such transfer of custody were made in the
instance did Fernando intimate to the trial court course of safekeeping and used in court as
that there were lapses in the safekeeping of the evidence, and the final disposition (Section 1,
seized items that affected their integrity and DDB Regulation No. 1, Series of 2002).
evidentiary value. He, thus, veritably admits that
the crystalline substance in the sachets found in How is the process conducted?
his bag was the same substance sent for
laboratory examination and there positively Under Sec. 21 of the Comprehensive
determined to be shabu and eventually Dangerous Drugs Acts of 2002:
presented in evidence in court as part of the
corpus delicti. In other words, Fernando, before 1. The apprehending team having initial
the RTC and the CA, opted not to make an issue custody and control of the drugs shall,
of whether the chain of custody of the drugs immediately after seizure and
subject of this case has been broken. This confiscation, physically inventory and
disposition on the part of Fernando is deducible photograph the same in the presence of
from the August 18, 2005 Order of the trial court, the accused or the person/s from whom
pertinently saying, [The] Acting Provincial such items were confiscated and/or
Prosecutor x x x and Atty. Emmanuel Abellera, seized, or his/her representative or
counsel de officio of the accused manifested counsel, a representative from the
that the chain of custody of the searched illegal media and the DOJ, and any elected
drug or shabu is admitted. public official who shall be required to
sign the copies of the inventory and be
As a mode of authenticating evidence, the chain given a copy thereof;
of custody rule requires that the presentation of 2. Within 24 hours upon
the seized prohibited drugs as an exhibit be confiscation/seizure of dangerous drugs,
preceded by evidence sufficient to support a plant sources of dangerous drugs,
finding that the matter in question is what the controlled precursors and essential
proponent claims it to be. This would ideally chemicals, as well as
cover the testimony about every link in the instruments/paraphernalia and/or
chain, from seizure of the prohibited drug up to laboratory equipment, the same shall be
the time it is offered in evidence, in such a way submitted to the PDEA Forensic
that everyone who touched the exhibit would Laboratory for a qualitative and
describe how and from whom it was received, to quantitative examination.
include, as much as possible, a description of 3. A certification of the forensic laboratory
the condition in which it was delivered to the examination results, which shall be done
next link in the chain. under oath by the forensic laboratory
examiner, shall be issued within 24
What was the object evidence in the case of hours after the receipt of the subject
Gutierrez? item/s: Provided, that when the volume
of the dangerous drugs, plant sources of
The seized drugs. dangerous drugs, and controlled
precursors and essential chemicals
What is the Doctrine of the Chain of does not allow the completion of testing
Custody? within the time frame, a partial
laboratory examination report shall be
Chain of Custody means the duly recorded provisionally issued stating therein the
authorized movements and custody of seized quantities of dangerous drugs still to be
drugs or controlled chemicals or plant sources of examined by the forensic laboratory:
dangerous drugs or laboratory equipment of Provided, however, that a final
each stage, from the time of seizure/confiscation certification shall be issued on the


completed forensic laboratory 7. After the promulgation and judgment in
examination on the same within the next the criminal case wherein the
24 hours; representative sample/s was presented
4. After the filing of the criminal case, the as evidence in court, the trial prosecutor
Court shall, within 72 hours, conduct an shall inform the Board of the final
ocular inspection of the confiscated, termination of the case and, in turn,
seized and/or surrendered dangerous shall request the court for leave to turn
drugs, plant sources of dangerous over the said representative sample/s to
drugs, and controlled precursors and the PDEA for proper disposition and
essential chemicals, including the destruction within 24 hours from receipt
instruments/ paraphernalia and/or of the same.
laboratory equipment, and through the
PDEA shall within 24 hours thereafter Is it necessary that the whole amount of
proceed with the destruction or burning drugs must be presented in evidence?
of the same, in the presence of the
accused or the person/s from whom No. Only a sample amount as determined by the
such items were confiscated and/or DDB may be presented to the court.
seized, or his/her representative or
counsel, a representative from the How do you then prove the existence of such
media and the DOJ, civil society groups amount?
and any elected public official. The
Board shall draw up the guidelines on Through an initial certification and a subsequent
the manner of proper disposition and ocular inspection done by the court hearing the
destruction of such item/s which shall be case.
borne by the offender: Provided, that
those item/s of unlawful commerce, as Is that not substitution?
determined by the Board, shall be
donated, used or recycled for legitimate No. Since a sample was taken from the very
purposes: Provided further, that a objects that were seized by the authorities
representative sample, duly weighed themselves. Besides, to require the presentation
and recorded is retained; of all the amount/volume of evidence before the
5. The Board shall then issue a sworn court would only cause great inconvenience.
certification as to the fact of destruction You do not want to destroy Judge Wagans
or burning of the subject item/s which, mood by wasting her time looking at the stacks
together with the representative of marijuana and accounting for their volume.
sample/s in the custody of the PDEA, Judge Wagan can be very angry. And you would
shall be submitted to the court having not like it when shes angry.
jurisdiction over the case. In all
instances, the representative sample/s Are pictures in drug cases sufficient?
shall be kept to a minimum quantity as
determined by the Board; and No, because the narcotic substance is the very
6. The alleged offender or his/her corpus delicti of the crime.
representative or counsel shall be
allowed to personally observe all of the Is failure to comply strictly with the mandate
above proceedings and his/her of Sec. 21 of R.A. No. 9165 (pertaining to the
presence shall not constitute an custody and disposition of confiscated,
admission of guilt. In case the said seized, and surrendered dangerous drugs,
offender or accused refuses or fails to etc.) fatal to the prosecution?
appoint a representative after due notice
in writing to the accused or his/her No. Non-compliance by the apprehending/buy-
counsel within 71 hours before the bust team with Section 21 is not fatal as long as
actual burning or destruction or the there is justifiable ground, and as long as the
evidence in question, the SOJ shall integrity and the evidentiary value of the
appoint a member of the PAO to confiscated/seized items are properly preserved
represent the former; by the apprehending officer/team. Its non-
compliance will not render an accuseds arrest


illegal or the items seized/confiscated from him Is it not the right of the plaintiff to choose the
inadmissible. What is of utmost importance is type of object evidence he may desire for as
the preservation of the integrity and the long as it is relevant?
evidentiary value of the seized items, as the
same would be utilized in the determination of Yes. That is the GENERAL RULE. However, it
the guilt or innocence of the accused. Crucial in must still be subject to the common norms of
proving the chain of custody is the marking of public policy, decency and morality.
the seized driugs or other related items
immediately after thet are seized from the What is your legal basis?
accused. Marking after seizure is the starting
point in the custodial link, thus, it is vital that the Jara: court decisions have established certain
seized contraband are immediately marked grounds to refuse to admit such evidence. (He
because succeeding handlers of the specimens did not cite any case. Up to you to look for
will use the markings as reference. The marking them).
of the evidence serves to separate the marked
evidence from the corpus of all other similar or Let us take for example a special proceeding.
related evidence from the time they are seized A person wants to change the sex indicate in
from the accused until they are disposed of at the entry in his birth certificate from male to
the end of criminal proceedings, obviating female. Mali daw ang nalagay. Dapat daw
switching, planting, or contamination of babae siya. Can the plaintiff undress before
evidence (People of the Philippines v. Allen the court?
Udtojan Mantalaba, G.R. No. 186227).
No. Again, it will offend the norms of decency. It
Is the class card an object evidence? would be better if were done in closed
chambers.
It depends. If we pertain solely to the paper
itself, the class card itself without having to look What is Demonstrative Evidence? How does
into the contents of the same, it can be said that one test its admissibility?
the class cards partake the nature of object
evidence. On the other hand, if there is a need Demonstrative evidence is not the actual thing
to view the contents written on the class cards, but it is referred to as demonstrative because it
they partake the nature of documentary represents or demonstrates the real thing. It is
evidence. not strictly real evidence because it is not the
very thing involved in the case. A map, a
Supposing there was an action for damages diagram, a photograph and a model, fall under
arising from a quasi-delict on account of a this category.
vehicular accident. In the complaint, the The admissibility of this type of evidence largely
plaintiff alleged that he figured in the depends on laying the proper foundation for the
collision and in the process, his arm got evidence. The rule boils down to one basic
amputated. Can the plaintiff bring to the question: Does the evidence sufficiently and
court the amputated arm? accurately represent the object it seeks to
demonstrate or represent? If it does, the
Nope. for the following reasons (According to evidence would be admissible
Moranas recollection of Jaras explanation):
DOCUMENTARY EVIDENCE
1. Kadiri. It is offensive to the senses and
thus, will violate the norms of decency in BEST EVIDENCE RULE
court proceedings.
2. Madaya. Can you imagine if you are the What is Documentary Evidence?
judge and while you are writing your
decision, the amputated arm is right Documentary Evidence consists of writings or
before your eyes? It will be prejudicial to any material containing letters, words, numbers,
the defendant in that case. figure, symbols or other modes of written
expressions offered as proof of their contents.


For what purpose do we offer documentary So if I present a photocopy of a certain
evidence? document, is it automatically excluded
because of the Best evidence Rule?
In order to prove the contents of the writing.
NO. If the presentation of the photocopied
What is the Best Evidence Rule? document is only for the purpose of proving the
existence, execution, or the delivery of the said
The term best has nothing to do with the photocopied document without any reference as
degree of its probative value in relation to other to its terms, such evidence may still be
types of evidentiary rules. It is not intended to admissible.
mean the most superior evidence. More
accurately, it is the original document rule or Under the best evidence rule, the original
the primary evidence rule. This rule applies to document must be produced whenever its
documentary evidence only, or a document contents are the subject of inquiry. A photocopy,
presented as proof of its contents. It does not being mere secondary evidence, is not
apply where there is no bona fide dispute on the admissible unless it is shown that the original is
contents of documents and no useful purpose unavailable. Before a party is allowed to adduce
would be served by its production. Simply secondary evidence to prove the contents of the
stated, when the subject of inquiry is the original, the offeror must prove the following:
contents of a document, no evidence shall be
admissible other than the original document 1. The existence or due execution of the
itself. original;
2. The loss and destruction of the original
Is the Rule Absolute? or the reason for its non-production in
court; and
No. The Best Evidence Rule admits several 3. On the part of the offeror, the absence
exceptions: of bad faith to which the unavailability of
the original can be attributed.
1. When the original has been LOST or
DESTROYED, or cannot be The correct order of proof is as follows:
PRODUCED in court, without bad faith existence, execution, loss, and contents
on the part of the offeror.
2. When the original is in the CUSTODY or Does the Best Evidence Rule apply
under the CONTROL of the party absolutely in all cases a document is
against whom the evidence is offered, presented as an evidence in court?
and the latter fails to produce it after
reasonable notice. NO. With respect to documentary evidence, the
3. When the original consists of best evidence rule applies only when the
NUMEROUS ACCOUNTS or other contents of such document is the subject of
documents which cannot be examined inquiry. Where the issue is only as to whether
in court without great loss of time and such a document was actually executed, or
the fact sought to be established from exists, or on the circumstances relevant to or
them is only the general result of the surrounding its execution, the best evidence rule
whole. does not apply and testimonial evidence is
4. When the original is a PUBLIC admissible
RECORD in the custody of a public
officer or is recorded in a public office. OK. I present the original of a document. Is it
automatically admitted?
Why is there such a rule?
No. It has to undergo the process of
1. To prevent fraud; authentication, except if the document is a public
2. To exclude uncertainties in the contents document.
of a document


PAROL EVIDENCE RULE How do you determine whether or not the
subject of an oral agreement is separate and
What is the Parol Evidence Rule? distinct from the subject of the writing?
GENERAL RULE: When the terms of an STEPS:

agreement have been reduced to writing, it is
considered as containing all the terms agreed 1. Determine first what is the whole subject
upon and there can be, between the parties and intended by the parties to be covered by
successors in interest, no evidence of such such writing. This question may be
terms other the contents of the written determined from the contract itself, in
agreement. light of the subject-matter with which it
deals and of the circumstances
EXCEPTION: a party may present evidence to attending its execution.
modify, explain or add to the terms of the written 2. Ascertain the subject of the oral
agreement if he puts in issue in his pleading: agreement offered to be proved. To this
effect, the parol evidence may be
1. The failure of the written agreement to admitted provisionally.
express the true intent of the parties 3. A comparison should be made between
thereto; the writing and the oral negotiation and
2. The intrinsic ambiguity, mistake or from that comparison it may be seen
imperfection in the written agreement; whether or not the subject of the writing
3. The validity of the written agreement; is separate and distinct from that of the
4. The existence of other terms agreed to oral negotiation.
by the parties or their successors in 4. If the subject of the oral negotiation is
interest after the execution of the written not so closely connected with the
agreement. subject of the writing as to form part and
parcel of it, then parol evidence is
The term agreement includes wills. admissible.
What is Parol Evidence? Distinguish Parol Evidence rule from the

Best Evidence Rule.
Parol evidence is any evidence aliunde, whether
oral or written, which is intended or tends to vary Parol Evidence Best Evidence
or contradict a complete and enforceable Rule Rule
agreement embodied in a document. Presupposes that Contemplates the
the original situation wherein
Why is there such a rule? Availability document is the original writing
of the available in court. is not available
Original and/or there is a
When an agreement has been reduced into Document dispute as to
writing, they are presumed to have intended the whether said
writing as the ONLY EVIDENCE of their writing is the
agreement, and, therefore, they are supposed to original.
have embodied all the terms of such agreement. Prohibits the Prohibits the
Consequently, all prior or contemporaneous varying of terms introduction of
collateral stipulations which the parties might of a written substitutionary
have had and which do not appear in writing, are What the agreement. evidence in lieu of
rule the original
presumed to have been waived or abandoned
prohibits document
by them, and therefore, not provable. regardless of
whether or not it
varies the contents
of the original.
What kind Applies only to Applies to all kinds
of documents which of writings.
documents are contractual in
does the nature, including
rule apply? wills.


Only when the Can be invoked by notarized. The substantive rule in the Civil Code
controversy is any party to an provides that: No will shall pass either real or
between the action regardless personal estate unless it is proved and allowed
parties to the of whether or not in the probate court.
Who may written such party has
invoke? agreement, their participated in the
privies, or any writing involved. Therefore, is Sec. 19, Rule 132 applicable to
party directly wills?
affected thereby.
Hindi phowZ. Jejeje.
If the last paragraph in Section 9 of Rule 130
was not included, would parol evidence rule Distinguish a notarized deed of sale from a
still be applicable? notarized will.
Yes. The Civil Code is pretty clear on this one: A notarized deed of sale is a public document
and needs no authentication. A notarized will, by
Art. 789. When there is an imperfect description, express provision of the Civil Code and the
or when no person or property exactly answers Rules of Court, needs to undergo authentication.
the description, mistakes and omissions must be Even if such is notarized, it cannot be
corrected, if the error appears from the context considered a public document.
of the will or from extrinsic evidence, excluding
the oral declarations of the testator as to his Why is there a need to authenticate a
intention; and when an uncertainty arises upon notarized will?
the face of the will, as to the application of any of
its provisions, the testator's intention is to be Public policy requires it. Courts must at all times
ascertained from the words of the will, taking give respect to testamentary intent. In order to
into consideration the circumstances under prevent fraud, authentication of wills is
which it was made, excluding such oral mandatory.
declarations.
How may the genuineness of a notarized
AUTHENTICATION AND PROOF OF deed be assailed?
DOCUMENTS
It may be assailed by discrediting the
Let us discuss the process of authenticating genuineness of the signature, or the
a document. What is a public document? handwriting, or the identity of the public officer
What is a private document? who prepared the same (not sure. But sounds
right).
Public Documents are:
How do you prove a private document?
1. The written official acts, or records of
the official acts of the sovereign The due execution and authenticity of a private
authority, official bodies and tribunals, document must be proved either by:
and public officers, whether of the
Philippines, or of a foreign country; 1. Anyone who saw the document
2. Documents acknowledged before a executed or written;
notary public except last wills and 2. Evidence of the genuineness of the
testaments; and signature or handwriting of the maker.
3. Public records, kept in the Philippines,
or private documents required by law to It is therefore NOT NECESSARY that the
be entered therein. witness be an eyewitness
All other documents are private. Must all private documents undergo the
process of authentication?
Is a notarized will a public document?
NO. The following are private writings which
NO. Last wills and testament must undergo an may be admitted in evidence without previous
authentication process even if they are proof of its authenticity and due execution:


1. When the genuineness and due make him testify and read the whole thing, then
execution of the document is admitted let him translate the language.
by the adverse party;
2. When such genuineness and due How do you impeach judicial records?
execution are immaterial to the issue;
3. When the document is an ANCIENT 1. By evidence of want of jurisdiction of the
DOCUMENT. court or judicial officer;
4. Rule on Actionable Documents when 2. Collusion between the parties;
the adverse party fails to specifically 3. Extrinsic fraud on the part of the party
deny under oath the genuineness and offering the record, in respect of the
due execution of the actionable proceedings.
document and to set forth what he
claims to be the facts, the same shall be What happened in the case of US vs.
deemed admitted (Rule 8,Sec.8). Gregorio?
5. Request for Admission if the party fails
to specifically deny the matters on which In the suit instituted for the payment of a certain
the admission is requested within the sum of money, judgment was rendered wherein
period given, the genuineness and due the debtor was sentenced to pay to the plaintiff
execution shall be deemed admitted P275.92, with interest thereon, and the costs.
(Rule 26). For the execution of the said judgment, two rural
6. Pre-Trial the parties can enter properties belonging to the debtor were
stipulations and admit the genuineness attached. Bernardo Gregorio requested the
and due execution. deputy sheriff to exclude the said realty from the
attachment, alleging that he was the owner of
What are ancient documents? What is the the land situated in Tambogon, one of the
rule with respect to such? properties levied upon for the reason that he had
acquired it by purchase from the judgment
Requirements for Ancient Document Rule: debtor, Balistoy, in 1905, prior to the filing of the
complaint. In order that the claim of intervention
1. The private document is more than 30 presented to the sheriff might prosper, Bernardo
years old; Gregorio attached thereto the document Exhibit
2. It is produced from custody in which it D, at the end of which and among other
would naturally be found if genuine; particulars appears the memorandum dated in
3. It is unblemished by any alterations or Libog as of February 22, 1905, and signed by
circumstances of suspicions. Eustaquio Balistoy, Lorenzo Gregorio, and Cirilo
Valla, and in which Balistoy states that he
It is important to note, however, that the ancient bought the land referred to in the said document
document rule applies only when there are no from Luis Balistoy and sold it to Bernardo
available witnesses to testify as to the Gregorio for P300, wherefore he signed as such
authenticity of the document. vendor. A complaint was filed in each of the two
aforesaid causes in the Court of First Instance of
A documentary evidence in an unofficial Albay, charging each of the defendants with the
language was presented to the court. How crime of the falsification of a private document.
can a proponent convince the court that the
translation is credible? Issue: WON Balistoy, with intent to injure his
creditor, Pedro Salazar, and for the purpose of
Documents written in an unofficial language avoiding the attachment and sale of one of the
shall not be admitted as evidence, unless properties did execute or write the said
accompanied with a translation into English or memorandum whereby, on February 25, 1905,
Filipino. To avoid interruption of proceedings, he made or simulated a conveyance of one of
parties or their attorneys are directed to have the attached properties in favor of the said
such translation prepared before trial. Bernardo Gregorio, according to the aforesaid
copy, when in fact the said memorandum was
To convince the court, present the evidence, get written in April, 1908.
a translation, have a translator take the witness
stand as an expert witness, qualify the witness,


Held: In the charge filed in this cause against the What happened in Government vs. Martinez?
vendor and the vendee of the land in question, it
is stated that these parties, the defendants, In the cadastral proceedings instituted in the
simulated the said memorandum of sale or Court of Land Registration for the settlement of
conveyance of the land with the intent to injure titles to lands in the municipality of Iloilo,
the creditor, Pedro Salazar; but as the original Province of Iloilo, Dolores and Carmen Martinez
document, setting forth the said memorandum, appeared claiming to be the owners of lots Nos.
was not presented, but merely a copy thereof, 873 and 450. They alleged that they were in
and furthermore, as it could not be ascertained possession thereof for about twenty-five years,
who had the original of the document containing having acquired them by donation from Maria
the memorandum in question, nor the exact date Sarlabus, and that their predecessors in interest
when the latter was written; the said had possession of the same for at least three
memorandum, presumed to be simulated and years prior to said donation.
false, was not literally compared by the sheriff
who testified that he had seen its original for but On the otherhand, Julio Salvador, through his
a few moments, nor by any officer authorized by attorney, entered his appearance and claimed
law to certify to documents and proceedings title to said lots, alleging that he was in actual
such as are recorded in notarial instruments, nor possession thereof, and that his predecessors in
even by two witnesses who might afterwards interest had been in possession before him for
have been able to testify before the court that at least fourteen years. To support their claim,
the copy exhibited was in exact agreement with they presented before the court the testimony of
its original; therefore, on account of these two witnesses and a certified copy issued by the
deficiencies, doubt arises as to whether the acting registrar of deeds of Iloilo dated May 13,
original of the document, Exhibit D, really 1914.
existed at all, and whether the memorandum at
the foot of the said exhibit is an exact copy of The CFI of Iloilo ruled in favor of Julio Salvador
that alleged to have been written at the end of on the ground that, in the opinion of the court, it
the said original document. was proved that the Martinez sisters had sold
said land to one named Domenech and that the
In criminal proceedings for the falsification of a latter, in return, sold it to Julio Salvador, who
document, it is indispensable that the judges could, therefore, be considered owner of the
and courts have before them the document disputed lots.
alleged to have been simulated, counterfeited,
or falsified, in order that they may find, pursuant Dolores and Carmen Martinez excepted to said
to the evidence produced in the cause, whether judgment and filed a bill of exceptions after their
or not the crime of falsification was committed, motion for new trial had been overruled, and
and also, at the same time, to enable them to they had excepted to the order overruling said
determine the degree of each defendant's motion.
liability in the falsification under prosecution.
Through the lack of the original document Issue: WON the trial court erred in admitting the
containing the memorandum alleged to be false, copy of the record of a supposed document of
it is improper to hold, with only a copy of the said sale presented by Julio Salvador, in support of
original in view, that the crime prosecuted was his claim of title without the disappearance or
committed; and although, judging from the loss of the original document having been
testimony of the witnesses who were examined previously proved.
in the two consolidated causes, there is reason
to entertain much doubt as to the defendants' Held: Yes. Section 299 of the Code of Civil
innocence, yet, withal, this case does not furnish Procedure provides: "The written acts of record
decisive and conclusive proof of their respective of the acts of the sovereign authority, of official
guilt as co-principals of the crime charged. bodies and tribunals and of public officers,
Defendants in a criminal cause are always legislative, judicial, and executive of the
presumed to be innocent until their guilt be fully Philippine Islands, or of the United States, or of
proven, and, in case of reasonable doubt and any States of the United States or of a foreign
when their guilt is not satisfactorily shown, they country, and public records kept in the Philippine
are entitled to a judgment of acquittal. Islands of private writings are public writings. A
copy of a public writing, duly certified to be a


true copy thereof, is admissible evidence in like of the party interested, and in the place where it
cases and in like effect as the original writing." is most likely to be found. . . . But to justify
admission of secondary evidence of a deed, it is
The certified copy issued by the acting registrar not necessary to prove its loss beyond all
of deeds of Iloilo, Exhibit 2, is not a true copy of possibility of mistake. A reasonable probability of
the document of sale which is said to have been its loss is sufficient; and this may be shown by a
executed by the Martinez sisters in favor of bona fide and diligent search, fruitless made for
Antonio Domenech, but of the recital appearing it in places where it is likely to be found.
in the books of said registry with respect to the
urban property, consisting of those two lots. As the failure of the oppositor Salvador to
present the original document in question was
In the case at bar, Julio Salvador, had not first not accounted for; as it is not proper to suppose
complied with the provisions of section 321 of that the original could not have been presented
the Code of Civil Procedure. The Supreme Court within a reasonable time if he had exercised due
ruled that the best obtainable evidence should diligence for he or his counsel had the means,
be adduced to prove every disputed fact, and a opportunity and time to find the original if it really
failure to produce it, but an attempt instead to existed; as no proof was adduced that said
sustain the issue by inferior evidence, will document had been lost, or destroyed, or that
authorize the inference that the party does not proper search therefor was made in the general
furnish the best evidence because it would tend files of notarial documents in the City of Manila,
to defeat, instead of sustaining, the issue of his or that an attempt was made to secure a copy
part. In requiring the production of the best thereof if it existed in said files; as the notary,
evidence applicable to each particular fact, it is Gregorio Yulo, a person well known in Iloilo, was
meant that no evidence shall be received which not asked directly and clearly as to the
is merely substitutionary in its nature, so long as whereabouts of said document or some
the original evidence can be had. particular or data it in order to obtain from him
some conclusive and categorical answer; as
Undoubtedly the best evidence of the contents said notary has not been presented at the trial to
of a written instrument consists in the actual be examined on these points; and, lastly, as it
production of the instrument itself, and the was not shown that the party interested in the
general rule is that secondary evidence of its presentation of said document who is Julio
contents cannot be admitted until the Salvador, had made a diligent and proper, but
nonproduction of the original has been fruitless, search for said document in any place
satisfactory accounted for. where it could probably be found therefore
the secondary evidence presented by the
Secondary evidence of the contents of writings if oppositor, consisting of the testimony of the
admitted on the theory that the original cannot witnesses, Saez and Madrenas, and the certified
be produced by the party by whom the evidence copy issued by the registrar of deeds of Iloilo,
is offered, within a reasonable time by the Exhibit 2, is of no value for the purpose intended
exercise of reasonable diligence. And ordinarily and such evidence was improperly considered
secondary evidence is not admissible until the by the court in reaching the conclusion that said
nonproduction of the primary evidence has been Julio Salvador was the owner of the lots in
sufficiently accounted for. question.
The contents of a lost instrument cannot be The judgment appealed from is therefore
proved unless it appears that reasonable search reversed and the claims of Julio Salvador is
has been made in the place where the paper denied; and we declare that the two lots Nos.
was last know to have been, and if not found 873 and 450 should be adjudicated to the
there, that inquiry has been made of the person appellants Carmen and Dolores Martinez and be
last known to have had its custody. registered in their name. No special
pronouncement is made as to costs. So ordered.
In accordance with the rule set forth in the next
preceding paragraph parol evidence of the
contents of a will is inadmissible, unless it is first
shown that diligent and unavailing search has
been made for the original, by or at the request


What happened in the case of MCC vs. RA 8792, otherwise known as the Electronic
Ssangyong? Commerce Act of 2000, considers an electronic
data message or an electronic document as the
Facts: Petitioner MCC Industrial Sales (MCC), a functional equivalent of a written document for
domestic corporation with office at Binondo, evidentiary purposes. The Rules on Electronic
Manila, is engaged in the business of importing Evidence regards an electronic document as
and wholesaling stainless steel products. One of admissible in evidence if it complies with the
its suppliers is the Ssangyong Corporation rules on admissibility prescribed by the Rules of
(Ssangyong), an international trading company Court and related laws and is authenticated in
with head office in Seoul, South Korea and the manner prescribed by the said Rules. An
regional headquarters in Makati City, electronic document is also the equivalent of an
Philippines. The two corporations conducted original document under the Best Evidence
business through telephone calls and facsimile Rule, if it is a printout or output readable by sight
or telecopy transmissions. Ssangyong would or other means, shown to reflect the data
send the pro forma invoices containing the accurately. Thus, to be admissible in evidence
details of the steel product order to MCC; if the as an electronic data message or to be
latter conforms thereto, its representative affixes considered as the functional equivalent of an
his signature on the faxed copy and sends it original document under the Best Evidence
back to Ssangyong, again by fax. Rule, the writing must foremost be an "electronic
data message" or an "electronic document."
Due to the failure of MCC to put up a Letter of
Credit, Ssangyong sued MCC in the RTC. After According to the deliberations in Congress,
Ssangyong rested its case, defendants filed a when Congress formulated the term "electronic
demurrer to evidence, alleging that Ssangyong data message," it intended the same meaning
failed to present the original copies of the pro as the term "electronic record" in the Canada
forma invoices on which the civil action was law. This construction of the term "electronic
based. In an Order dated April 24, 2003, the data message," which excludes telexes or faxes,
court denied the demurrer, ruling that the except computer-generated faxes, is in harmony
documentary evidence presented had already with the Electronic Commerce Law's focus on
been admitted in the December 16, 2002 Order "paperless" communications and the "functional
and their admissibility finds support in RA 8792, equivalent approach" that it espouses. In fact,
otherwise known as the Electronic Commerce the deliberations of the legislature are replete
Act of 2000. Considering that both testimonial with discussions on paperless and digital
and documentary evidence tended to transactions. Facsimile transmissions are not, in
substantiate the material allegations in the this sense, "paperless," but verily are paper-
complaint, Ssangyong's evidence sufficed for based.
purposes of a prima facie case. RTC ruled in
favor of Ssangyong, so did the CA. Accordingly, in an ordinary facsimile
transmission, there exists an original paper-
Issue: WON the printout and/or photocopies of based information or data that is scanned, sent
facsimile transmissions are electronic evidence through a phone line, and reprinted at the
and admissible as such. receiving end. Be it noted that in enacting the
Electronic Commerce Act of 2000, Congress
Held: Although the parties did not raise the intended virtual or paperless writings to be the
question whether the original facsimile functional equivalent and to have the same legal
transmissions are "electronic data messages" or function as paper-based documents. Further, in
"electronic documents" within the context of the a virtual or paperless environment, technically,
Electronic Commerce Act (the petitioner merely there is no original copy to speak of, as all direct
assails as inadmissible evidence the printouts of the virtual reality are the same, in all
photocopies of the said facsimile transmissions), respects, and are considered as originals.
we deem it appropriate to determine first Ineluctably, the law's definition of "electronic
whether the said fax transmissions are indeed data message," which, as aforesaid, is
within the coverage of RA 8792 before ruling on interchangeable with "electronic document,"
whether the photocopies thereof are covered by could not have included facsimile transmissions,
the law. which have an original paper-based copy as
sent and a paper-based facsimile copy as


received. These two copies are distinct from identify a prankster who was sending her
each other and have different legal effects. malicious text messages. Rustan got the
While Congress anticipated future developments senders number and, pretending to be Irish,
in communications and computer technology contacted the person. Rustan claims that he got
when it drafted the law, it excluded the early back obscene messages from the prankster,
forms of technology, like telegraph, telex and which he forwarded to Irish from his
telecopy (except computer-generated faxes, cellphone. This explained, he said, why the
which is a newer development as compared with obscene messages appeared to have originated
the ordinary fax machine to fax machine from his cellphone number. After trial, the RTC
transmission), when it defined the term gave more credence to Irishs testimony. The
"electronic data message." lower court found Irishs testimony completely
credible, given in an honest and spontaneous
We, therefore, conclude that the terms manner, and hence convicted Rustan of the
"electronic data message" and "electronic crime of violence against women through
document," as defined under the Electronic harassment. Upon appeal, CA affirmed the RTC
Commerce Act of 2000, do not include a decision. Rustan interposed, among others, that
facsimile transmission. Accordingly, a facsimile the obscene picture should be inadmissible as
transmission cannot be considered as electronic evidence since such picture sent to Irish through
evidence. It is not the functional equivalent of an a text message constitutes an electronic
original under the Best Evidence Rule and is not document and thus should be authenticated
admissible as electronic evidence. under the Rules on Electronic Evidence.
Since a facsimile transmission is not an Issue: WON the RTC properly admitted in
"electronic data message" or an "electronic evidence the obscene picture presented in
document," and cannot be considered as the case.
electronic evidence by the Court, with greater
reason is a photocopy of such a fax Held: Yes. The Court noted that the objection of
transmission not electronic evidence. Rustan as to the admissibility of the obscene
picture as evidence was already too late since
Ang vs. CA? he should have objected to the admission of the
picture on such ground at the time it was offered
Facts: Rustan Ang and private respondent Irish in evidence. He should be deemed to have
Sagud were sweethearts on an on-and-off already waived such ground for objection.
basis towards the end of 2004. When Irish Besides, the Rules on Electronic Evidence do
learned afterwards that Rustan had taken a live- not apply to the present criminal action. It was
in partner (now his wife), whom he had gotten held that it applies only to civil actions, quasi-
pregnant, Irish broke up with him. Before Rustan judicial proceedings, and administrative
got married, however, he got in touch with Irish proceedings. Accordingly, the Court affirmed
and tried to convince her to elope with him, RTCs admission in evidence of the subject
saying that he did not love the woman he was obscene picture.
about to marry. Irish rejected the proposal and
told Rustan to take on his responsibility to the ELECTRONIC EVIDENCE
other woman and their child. One day, Irish
received through multimedia message service a Note: Codal provisions lang ang labanan dito.
picture of a naked woman with spread legs with Please read the rules.
her face superimposed on the figure. The
message allegedly came from Rustans number. When is electronic evidence regarded as
After she got the obscene picture, Irish got other being the equivalent of an original document
text messages from Rustan. He boasted that it under the Best Evidence Rule?
would be easy for him to create similarly
scandalous pictures of her. And he threatened An electronic document shall be regarded as the
to spread the picture he sent through the equivalent of an original document under the
internet. Subsequently, a criminal complaint for Best Evidence Rule if it is a printout or output
violation against women through harassment readable by sight or other means, shown to
was filed against Rustan. During trial, Rustan reflect the data accurately.
claimed that Irish merely sought his help to


May a print-out or photocopy or both of TESTIMONIAL EVIDENCE
facsimile transmissions be considered as
electronic evidence and admissible as the QUALIFICATIONS AND DISQUALIFICATIONS
term is defined under the E-Commerce Act OF WITNESSES
and its implementing rules?
What are the necessary qualifications in
NO. The definitions under the E-Commerce Act, order for one to be a witness?
its IRR and the Rules on Electronic Evidence, at
first glance, convey the impression that facsimile All persons who can perceive, and perceiving,
transmissions are electronic data messages or can make known their perception to others, may
electronic documents because they are sent by be witnesses.
electronic means. When the Senate voted to
adopt the term electronic data message, it was Are there any disqualifications?
consonant with the explanation of Senator
Miriam Defensor-Santiago that it would not apply Disqualifications of a witness:
to telexes or faxes, except computer generated
faxes, unlike the UN model law on electronic 1. Disqualification by reason of mental
commerce. incapacity or immaturity;
2. Disqualification by reason of marriage;
There is no question that when Congress 3. Dead Mans statute;
formulated the term electronic data message, it 4. Privileged communications;
intended the same meaning as the term 5. Parental and filial privileges;
electronic record in the Canada law. This 6. Art. 821 of the New Civil Code
construction of the term electronic data disqualifies those who have been
message, which excludes telexes or faxes, convicted of falsification of a document,
except computer generated faxes, is in harmony perjury or false testimony from being
with the Electronic Commerce Laws focus on witnesses to a will.
paperless communications and the functional 7. Section 17, Rule 119 of the Rules of
equivalent approach that it espouses. In fact, Court requires that the accused sought
the deliberations of the Legislature are replete to be discharged to be state witness has
with discussions on paperless and digital not at any time been convicted of any
transactions. offense involving moral turpitude. The
same requirement is provided for a state
Since a facsimile transmission is not an witness under R.A. 6981 or Witness
electronic data message or an electronic Protection, Security and Benefit Act.
document, and cannot be considered as
electronic evidence by the Court, with greater Are deaf-mutes disqualified to testify as
reason is a photocopy of such a fax witnesses?
transmission not considered electronic evidence
(MCC Industrial Sales, Corp. v. Ssangyong NO. deaf-mutes are not necessarily incompetent
Corp., G.R. No. 170633). as witnesses. They are competent where they:
(a) can understand and appreciate the sanctity
How does one treat text messages as of an oath; (b) can comprehend the facts they
evidence? are going to testify to; and (c) can communicate
their ideas through a qualified interpreter
Text messages have been classified as (People v. Tuangco, 345 SCRA 429)
ephemeral electronic communication under
Sec. 1 (k), Rule 2 of the Rules on Electronic Distinguish competency of a witness and
Evidence, and shall be proven by the testimony credibility of a witness.
of a person who was a party to the same or has
personal knowledge thereof. Ephemeral Competency of a Credibility of a witness
electronic communication refers to telephone witness
conversations, text messages and other Has reference to the Refers to the believability
electronic forms of communication the evidence qualifications of a witness of the witness and has
of which is not recorded or retained (Vidallon- as his capacity to nothing to do with the
perceive and his capacity law or the rules. it refers
Magtolis v. Salud., A.M. No. CA-05-20-P).


to communicate his to the weight and the RULE ON THE EXAMINATION OF A CHILD
perception to others. It trustworthiness or WITNESS
also includes the absence reliability of the
of any disqualifications testimony. When is the rule on examination of child
imposed upon a witness.
witnesses applicable?
When do you determine the qualifications of Examination of child witnesses who are victims,
a witness? accused, and witnesses to crime. It shall apply
in all criminal proceedings and non-criminal
The qualifications and disqualifications of a proceedings involving child witnesses
witnesses are determined as of the time said
witnesses are produced for examination in court How shall the rule be construed?
or at the taking of their depositions. With respect
to children of tender years, their competence at Liberally, to uphold the best interests of the
the time of the occurrence to be testified should child, and to promote maximum accommodation
also be taken into account, especially if such of child witnesses, without prejudice to the rights
event took place long before their production as of the accused.
witnesses.
Who may be considered a child witness?
Distinguish spousal immunity from marital
privilege. Any person who, at the time of giving testimony,
is below the age of 18 years. In child abuse
Disqualification Disqualification
cases, a child includes one over 18 years but is
by Reason of by Reason of
Marriage Privileged found by the court as unable to fully take care of
Communication himself or protect himself from abuse, neglect,
between cruelty, exploitation, or discrimination because of
spouses a physical or mental disability or condition.
Period for Applies only Applies even
Prohibition during their after the marriage Who is a guardian ad litem?
marriage
Scope of Any As to A person appointed by the court where the case
Prohibition communication communication is pending for a child who is a victim of, accused
received by one received in
of, or a witness to a crime to protect the best
from the other confidence by
one from the interests of the said child.
other during their
marriage What are the powers and functions of the
Exception 1. Unless there is consent by Guardian Ad Litem?
the other spouse; or
2. Except in a civil case by one Section 5. Guardian ad litem.
against the other, or in a
criminal case fro a crime (a) The court may appoint a guardian ad litem
committed by one against
for a child who is a victim of, accused of, or a
the other or the latters direct
descendants or ascendants.
witness to a crime to promote the best interests
of the child. In making the appointment, the
Can you compel an adverse party to be your court shall consider the background of the
witness? guardian ad litem and his familiarity with the
judicial process, social service programs, and
Yes, in civil cases. Such party is then treated as child development, giving preference to the
a hostile witness. However, there must be parents of the child, if qualified. The guardian ad
compliance with the requirements of Rule 25 litem may be a member of the Philippine Bar. A
and Rule 26 of the Rules of Court (SHOTGUN person who is a witness in any proceeding
QUESTION). involving the child cannot be appointed as a
guardian ad litem.
(b) The guardian ad litem: (1) Shall attend all

interviews, depositions, hearings, and trial


proceedings in which a child participates; (2) What is the rule with regard to the
Shall make recommendations to the court qualification of the child as a witness?
concerning the welfare of the child; (3) Shall
have access to all reports, evaluations, and Every child is presumed qualified to be a
records necessary to effectively advocate for the witness. However, the court shall conduct a
child, except privileged communications; (4) competency examination of a child, motu proprio
Shall marshal and coordinate the delivery of or on motion of a party, when it finds that
resources and special services to the child; (5) substantial doubt exists regarding the ability of
Shall explain, in language understandable to the the child to perceive, remember, communicate,
child, all legal proceedings, including police distinguish truth from falsehood, or appreciate
investigations, in which the child is involved; (6) the duty to tell the truth in court.
Shall assist the child and his family in coping
with the emotional effects of crime and Who must prove the need for competency
subsequent criminal or non-criminal proceedings examinations?
in which the child is involved; (7) May remain
with the child while the child waits to testify; (8) A party seeking a competency examination must
May interview witnesses; and (9) May request present proof of necessity of competency
additional examinations by medical or mental examination. The age of the child by itself is not
health professionals if there is a compelling a sufficient basis for a competency examination.
need therefor. Moreover, to rebut the presumption of
competence enjoyed by a child, the burden of
(c) The guardian ad litem shall be notified of all proof lies on the party challenging his
proceedings but shall not participate in the trial. competence.
However, he may file motions pursuant to
sections 9, 10, 25, 26, 27 and 31(c). If the Is the competency examination a final
guardian ad litem is a lawyer, he may object determination as to the competence of the
during trial that questions asked of the child are child?
not appropriate to his developmental level.
No. The court has the duty of continuously
(d) The guardian ad litem may communicate assessing the competence of the child
concerns regarding the child to the court through throughout his testimony.
an officer of the court designated for that
purpose. When may the court appoint an interpreter
for the child?
(e) The guardian ad litem shall not testify in any
proceeding concerning any information, Section 9. Interpreter for child.
statement, or opinion received from the child in
the course of serving as a guardian ad litem, (a) When a child does not understand the
unless the court finds it necessary to promote English or Filipino language or is unable to
the best interests of the child. communicate in said languages due to his
developmental level, fear, shyness, disability, or
(f) The guardian ad litem shall be presumed to other similar reason, an interpreter whom the
have acted in good faith in compliance with his child can understand and who understands the
duties described in sub-section (b). child may be appointed by the court, motu
proprio or upon motion, to interpret for the child.
What are the best interests of the child?
(b) If a witness or member of the family of the
The totality of the circumstances and conditions child is the only person who can serve as an
as are most congenial to the survival, protection, interpreter for the child, he shall not be
and feelings of security of the child and most disqualified and may serve as the interpreter of
encouraging to his physical, psychological, and the child. The interpreter, however, who is also a
emotional development. It also means the least witness, shall testify ahead of the child
detrimental available alternative for safeguarding
the growth and development of the child. (c) An interpreter shall take an oath or
affirmation to make a true and accurate
interpretation.


When may the court appoint a facilitator to (b) If the support person chosen by the child is
ask questions to the child? also a witness, the court may disapprove the
choice if it is sufficiently established that the
Section 10. Facilitator to pose questions to child. attendance of the support person during the
testimony of the child would pose a substantial
(a) The court may, motu proprio or upon motion, risk of influencing or affecting the content of the
appoint a facilitator if it determines that the child testimony of the child.
is unable to understand or respond to questions
asked. The facilitator may be a child May the courtroom environment be adjusted
psychologist, psychiatrist, social worker, to make the child more comfortable?
guidance counselor, teacher, religious leader,
parent, or relative. Yes. Section 13 says: To create a more
comfortable environment for the child, the court
(b) If the court appoints a facilitator, the may, in its discretion, direct and supervise the
respective counsels for the parties shall pose location, movement and deportment of all
questions to the child only through the facilitator. persons in the courtroom including the parties,
The questions shall either be in the words used their counsel, child, witnesses, support persons,
by counsel or, if the child is not likely to guardian ad litem, facilitator, and court
understand the same, in words that are personnel. The child may be allowed to testify
comprehensible to the child and which convey from a place other than the witness chair. The
the meaning intended by counsel. witness chair or other place from which the child
testifies may be turned to facilitate his testimony
(c) The facilitator shall take an oath or but the opposing party and his counsel must
affirmation to pose questions to the child have a frontal or profile view of the child during
according to the meaning intended by counsel. the testimony of the child. The witness chair or
other place from which the child testifies may
Who is a support person? also be rearranged to allow the child to see the
opposing party and his counsel, if he chooses to
Person chosen by the child to accompany him to look at them, without turning his body or leaving
testify at or attend a judicial proceeding or the witness stand. The judge need not wear his
disposition to provide emotional support for him. judicial robe. Nothing in this section or any other
provision of law, except official incour
What are the rules relevant to support identification provisions, shall be construed to
persons? require a child to look at the accused.
Accommodations for the child under this section
Section 11. Support persons. need not be supported by a finding of trauma to
the child.
(a) A child testifying at a judicial proceeding or
making a deposition shall have the right to be May the child use testimonial aids during
accompanied by one or two persons of his own his / her testimony?
choosing to provide him emotional support. (1)
Both support persons shall remain within the Yes. The court shall permit a child to use dolls,
view of the child during his testimony. (2) One of anatomically-correct dolls, puppets, drawings,
the support persons may accompany the child to mannequins, or any other appropriate
the witness stand, provided the support person demonstrative device to assist him in his
does not completely obscure the child from the testimony.
view of the opposing party, judge, or hearing
officer. (3) The court may allow the support May the child be allowed to have an
person to hold the hand of the child or take other emotional security item?
appropriate steps to provide emotional support
to the child in the course of the proceedings. (4) Yes. While testifying, a child shall be allowed to
The court shall instruct the support persons not have an item of his own choosing such as a
to prompt, sway, or influence the child during his blanket, toy, or doll.
testimony.


Does the examination of the child need to What other similar measures may the court
follow strictly the usual procedure for take aside from live-link television?
examination of witnesses?
The prosecutor or the guardian ad litem may
No. Some exceptions are: apply for an order that the chair of the child or
that a screen or other device be placed in the
1. The court may allow leading questions courtroom in such a manner that the child
in all stages of examination of a child if it cannot see the accused while testifying. If the
will further the interests of justice court grants an application to shield the child
2. The court may allow the child witness to from the accused while testifying in the
testify in a narrative form courtroom, the courtroom shall be arranged to
3. Objections must be couched in a enable the accused to view the child.
manner so as not to mislead, confuse,
frighten, or intimidate the child. May the testimony of the child be given
through videotaped deposition?
Does the child witness testimony need to be
corroborated? Yes. If the court finds that the child will not be
able to testify in open court at trial, it shall issue
No. His / her testimony, if credible by itself, shall an order that the deposition of the child be taken
be sufficient. and preserved by videotape.
On what grounds may the court exclude the Does the hearsay rule apply to childrens
public during the examination of a child testimony?
witness?
Not strictly, in child abuse cases. A statement
Such an order may be made to protect the right made by a child describing any act or attempted
to privacy of the child or if the court determines act of child abuse, not otherwise admissible
on the record that requiring the child to testify in under the hearsay rule, may be admitted in
open court would cause psychological harm to evidence in any criminal or non-criminal
him, hinder the ascertainment of truth, or result proceeding subject to certain rules found in
in his inability to effectively communicate due to Section 28 (a).
embarrassment, fear, or timidity.
May the court admit videotape and audiotape
Does the child need to testify inside the interviews as evidence?
courtroom?
Yes, under certain conditions imposed under
No. The prosecutor, counsel or the guardian ad Section 29.
litem may apply for an order that the testimony
of the child be taken in a room outside the What is the Sexual Abuse Shield Rule?
courtroom and be televised to the courtroom by
live-link television. Also, the judge may question Section 30. Sexual abuse shield rule. -
the child in chambers, or in some comfortable
place other than the courtroom, in the presence (a) Inadmissible evidence. - The following
of the support person, guardian ad litem, evidence is not admissible in any criminal
prosecutor, and counsel for the parties. The proceeding involving alleged child sexual abuse:
questions of the judge shall not be related to the (1) Evidence offered to prove that the alleged
issues at trial but to the feelings of the child victim engaged in other sexual behavior; and (2)
about testifying in the courtroom. Evidence offered to prove the sexual
predisposition of the alleged victim.
What are the grounds to allow testimony by
live-link television? (b) Exception. - Evidence of specific instances of
sexual behavior by the alleged victim to prove
If there is a substantial likelihood that the child that a person other than the accused was the
would suffer trauma from testifying in the source of semen, injury, or other physical
presence of the accused, his counsel or the evidence shall be admissible. A party intending
prosecutor as the case may be. to offer such evidence must: (1) File a written


motion at least fifteen (15) days before trial, Distinguish the manner of taking the
specifically describing the evidence and stating testimony of a child witness from that of an
the purpose for which it is offered, unless the ordinary witness.
court, for good cause, requires a different time
for filing or permits filing during trial; and (2) Child Witness Ordinary Witness
Serve the motion on all parties and the guardian Only the judge is Opposing counsels are
ad litem at least three (3) days before the allowed to ask allowed to ask
hearing of the motion. questions to a child questions during
witness during preliminary
Before admitting such evidence, the court must preliminary examination.
conduct a hearing in chambers and afford the examination.
child, his guardian ad litem, the parties, and their Leading questions are Leading questions are
counsel a right to attend and be heard. The allowed. generally not allowed.
motion and the record of the hearing must be Testimony in a Testimony in a
sealed and remain under seal and protected by narrative form is narrative form is not
a protective order set forth in section 31(b). The allowed. allowed.
child shall not be required to testify at the The child witness is An ordinary witness is
hearing in chambers except with his consent. assisted by a not assisted by a
facilitator. facilitator.
How is the privacy of the child protected?
What is the Dead Mans Statute?
Any records regarding the child shall be
confidential and kept under seal. Except upon Parties or assignors of parties to a case, or
written request and order of the court, the record persons in whose behalf a case is prosecuted,
may only be released to certain persons under against an executor or administrator or other
Section 31(a). Moreover, any videotape or representative of a deceased person, or against
audiotape of a child that is part of the court a person of unsound mind, upon a claim or
record shall be under a protective order as demand against the estate of such deceased
provided by Section 31(b). The court may issue person or against such person of unsound mind,
additional protection orders to protect the childs cannot testify as to any matter of fact occurring
privacy. Whoever publishes or causes to be before the death of such deceased person or
published the identifying information of the child before such person became of unsound mind.
or the immediate family of the child shall be (NOTE: CODAL. VERBATIM. REQUIRED.)
liable to the contempt power of the court. Any
videotape or audiotape of a child made part of What are the elements of the Dead Mans
the court record shall be destroyed after 5 years Statute?
from the date of entry of judgment.
1. The defendant in the case is the
How are the ordinary rules of Court applied? executor or administrator or a
representative of the deceased or the
Suppletorily. person of unsound mind;
2. The suit is upon a claim by the plaintiff
When do you challenge the qualification of against the estate of said deceased
the witness? person or person of unsound mind;
3. The witness is the plaintiff, or an
Before he is made to testify on the matters assignor of that party, or a person in
which he/she was presented. Failure to whose behalf the case is prosecuted;
challenge will uphold the qualification of the 4. The subject of the testimony is as to any
witness. Kaya nga daw PRELIMINARY matter of fact occurring before the death
EXAMINATION ang tawag sabi ni Jara. of such person or before such person
became of unsound mind.


A creditor filed a case against the debtor. In What happened in the case of Icard v.
case the creditor dies and the debtor is alive Masigan?
and of sound mind, does the rule apply?
Facts: For services rendered in connection with
No. The first element of the Dead Mans Statute the development and location of certain mining
is absent in this case. The person who must claims, Joseph K. Icard filed a claim of P2,000
have been disabled or who must have died in against the estate of his deceased father
this case is the defendant. The defendant must George M. Icard. The claim having been allowed
be the one therefore being defended in this by the commissioner on claims, the
case. administrator appealed to the Court of First
Instance, where it was likewise allowed.
Under what instances does the rule not
apply? DOCTRINE: the Dead Mans Statute is designed
to close the lips of the party plaintiff when death
With respect to the FIRST ELEMENT: has closed the lips of the party defendant, in
order to remove from the surviving party the
1. Witnesses who are neither parties the temptation to falsehood and the possibility of
case, their assignors, nor persons in fictitious claims against the deceased. Where,
whose behalf the case is prosecuted; as in the instant case, the purpose of the oral
2. A counterclaim has been interposed by testimony is to prove a lesser claim than what
the defendant as the plaintiff would might be warranted by clear written evidence, to
thereby be testifying in his defense. avoid prejudice to the estate of the deceased,
the law has certainly no reason for its
With respect to the SECOND ELEMENT: application.
1. Defendant who is sued in his individual, What is the latin maxim in that case?
rather in a representative capacity.
Ratione cessante, cessat ipsa lex.
With respect to the THIRD ELEMENT:
Ong Chua vs. Carr?
1. An administrator who brings an action in
behalf of the estate; Facts: Henry Teck and his wife, Magdalena Lim
2. The action is brought by the heirs of a sold a property to the plaintiff, Ong Chua. Chua
deceased plaintiff who were substituted executed a public document granting to the
for the latter. spouses the right to for the sum of P6, 500
within four years from the date of purchase.
With respect to the FOURTH ELEMENT: Later, Edward Carr went to the office of a
practicing lawyer, Moore and sought the advice
1. Negative testimony, that is testimony and assistance of the latter in regard to
that a fact did not occurring during the purchasing coconut lands. Moore then called
lifetime of the deceased; Carr's attention to the lots above-mentioned and
2. Testimony on the present possession by told him that he could buy the lots for P20, 000,
the witness of a written instrument the amount which Chua paid for them to Teck
signed by the deceased. and Lim. Moore informed Carr that Teck and his
wife had the right to repurchase the property in
To whom does the rule apply? question from Chua and that such rights would
expire in June, 1927.
To a witness of the plaintiff who attempts to
testify on matters of fact occurring before the Both Chua and Carr requested Moore to draw
death of such deceased person or before such the deed of sale of the property from Chua to
person became of unsound mind. Carr. Before the drafting of the deed, Chua
stated to Moore that he consented to sell the
properties to Carr on the condition that the sale
should be subject to the rights of Teck and Lim
to have the property reconveyed to them and
that said rights were to be respected by the


vendee. According to Moore's own testimony, given a liberal construction to promote justice,
Carr was fully aware of those rights even before and it is held that it never was intended to serve
the execution of the deed, December 14, 1925, as a shield for fraud. As stated in Jones on
and that he consented to embody stipulations to Evidence: The evidence of an adverse party is
the effect in said deed. absolutely excluded by an independent,
affirmative enactment making him incompetent
Moore told Carr that the deed of sale could be as to transactions or communications with a
made in such a form that Carr's title to the deceased or incompetent person. These
property purchased would appear to be absolute statutes, however, do not render the adverse
but that Carr was to bear in mind that the rights party incompetent to testify to fraudulent
of Teck and Lim still existed and that the deed transactions of the deceased, as the statutes are
and other documents must be left in his, not designed to shield wrongdoers but the courts
Moore's, possession until the expiration of the compel the adverse party to clearly establish the
term for the right of repurchase and that, if the alleged fraudulent acts before admitting such
deed were made in that form, the loan of P6,500 testimony. In this case, a number of credible
(Carrs deficiency in the purchase price) could witnesses testified to facts which conclusively
be obtained. The deed of sale was prepared showed that Carr's conduct was tainted with
without including therein the condition that sale fraud. The plaintiff did not take the witness stand
was subject to Teck's and Lim's rights to until after the existence of fraud on the part of
repurchase. The deed was signed by Chua and Carr and been established beyond a doubt and
duly acknowledged before Moore as notary not by a mere preponderance of evidence. In
public. these circumstances, we cannot hold that the
trial court erred in not excluding the plaintiff's
Carr paid only P13, 500 in cash and promised, testimony.
in writing, to pay to the vendor the balance of the
purchase price. In July, 1926, Teck offered to Important matters to discuss in the case:
repurchase the property in question from Chua
who thereupon demanded of Carr the 1. Nature of the dispute
reconveyance of the property to the spouses, 2. Whether or not the case fell under the
but Carr refused to do so, claiming that he had parol evidence rule.
an absolute title to said property, and Chua then 3. The reasons why there was a need to
learned, for the first time, that the deed in reform
question contained no reference to the rights of 4. Would it have been different if fraud was
Teck and Lim to repurchase the property. On proven preliminarily?
July 23, 1926, this action was brought with the
plaintiff demanding that the deed in question be What is Filial Privilege?
reformed in accordance therewith. Subsequent
to the filling of the answer, Carr died, and the No person may be compelled to testify against
administrator of his estate was substituted as his parents, other direct ascendants, children, or
defendant. Upon such facts the court below other direct descendants.
ordered the reformation of the deed in
accordance with the plaintiff's demand. Hence, In relation to the Family Code?
this appeal.
Under the Family Code, the descendant may be
Issue: WON the court erred in permitting the compelled to testify against his parents and
plaintiff, Chua, to testify, over the grandparents, if such testimony is indispensable
defendant's objections, to fact occurring in prosecuting a crime against the descendant or
prior to the death of the defendant Carr by one parent against another.
Held: The rules bar parties to an action or Does this rule apply to both civil and criminal
proceeding against an executor or administrator cases?
or other representative of a deceased person
upon a claim or demand against the estate of No. only in civil cases. See modifications made
such deceased person from testifying as to any under the family code.
matter of fact occurring before the death of such
deceased person. But it has generally been


Can modes of discovery be instead used if In marital privilege, what is the standard in
not allowed to testify? determining whether the utterance was given
in confidence?
No. Not even depositions may be used as the
same constitutes testimonial evidence. The expression any communication means
confidential communications during marital
If the plaintiff makes use of the same relationship. The essence of the privilege is to
depositions as evidence, may it be admitted protect confidences only. And this must be true,
in court? because there can be no reason arising out from
public policy, or otherwise, requiring that every
According to Hans Morana, no. Because the word spoken between the husband and wife
same was made in violation of the rules. shall be privileged, irrespective of the presence
in which spoken or the subject or occasion
What are privileged communications found thereof. The spirit of the rule is that the privilege
under the Rules of Court? shall be construed to embrace only the
knowledge which the husband or wife obtains
Sec. 24 deals with types of disqualifications by from the other, which, but for the marriage
reason of privileged communication, to wit: relation and the confidence growing out of it,
would not have been communicated, or which is
1. Communication between husband and of such nature or character as that, to repeat the
wife; same, would tend to unduly embarrass, or
2. Communication between attorney and disturb the parties in their marital relations.
client;
3. Communications between physician and What if the same communication was
patient; overheard by a third person?
4. Communications between a priest and a
penitent; If a confidential communication made by one
5. Public officers and public interest. spouse to the other is overheard by a third
person, the communication does not cease to be
Is the enumeration exclusive? confidential between the spouses, and neither of
them can testify without the consent of the other.
NO. there are other privileged matters not But the legal prohibition to testify is directed to
mentioned under Sec. 130 such as: the spouses only, and accordingly, the third
person overhearing cannot be prevented from
1. Editors may not be compelled to testifying. For the same reason, where a
disclose the source of published news; privileged communication from one spouse to
2. Voters may not be compelled to disclose another comes into the hands of a third party,
for whom they voted; the latter may testify. But if the third party comes
3. Trade secrets; into possession of the communication by
4. Information contained in tax census collusion and voluntary disclosure on the part of
returns; either of the spouses, he thereby becomes an
5. Bank deposits; agent of such spouse and cannot testify without
6. Statements made in labor conciliation the consent of the latter.
proceedings;
7. Communications of suspicious What is the reason for the privilege?
transactions to AMLC under the AMLA.
Society has a deeply-rooted interest in the
What is the common element among such preservation of peace of families and in the
privileged communications? maintenance of the sacred institution of
marriage, and its strongest safeguard is to
The core element in the said enumeration is the preserve with zealous care any violations of
confidence reposed by the person giving such those hollowed confidences inherent in, and
information to another who receives the same. inseparable from the marital status.


Can privileged communication be used to refuse to divulge the name or identity of his
quash a subpoena? client.
No. Sec. 4 of Rule 21 provides for exclusive 1) the court has a right to know that the client
grounds to quash a subpoena: whose privileged information is sought to be
protected is flesh and blood.
Quashing a Subpoena Duces Tecum:
2) the privilege begins to exist only after the
1. The subpoena is unreasonable and attorney-client relationship has been
oppressive; established. The attorney-client privilege does
2. The relevancy of the books, documents, not attach until there is a client.
or things does not appear;
3. If the person in whose behalf the 3) the privilege generally pertains to the subject
subpoena is issued fails to advance the matter of the relationship.
reasonable cost of the production
thereof. Finally, due process considerations require that
the opposing party should, as a general rule,
Quashing a Subpoena ad Testificandum: know his adversary. A party suing or sued is
entitled to know who his opponent is. He cannot
1. Witness is not bound thereby; be obliged to grope in the dark against unknown
2. Witness fees and kilometrage allowed forces.
by these rules were not tendered when
the subpoena was served. Except:
Furthermore, the marital disqualification rule 1) Client identity is privileged where a strong
does not provide for an absolute disqualification. probability exists that revealing the clients name
The witness may still be summoned by the court would implicate that client in the very activity for
but he is may be prohibited only to testify on which he sought the lawyers advice.
matters that are covered by the marital privilege
rule. 2) Where disclosure would open the client to
civil liability, his identity is privileged.
For whose benefit is the attorney client
privilege? 3) Where the governments lawyers have no
case against an attorneys client unless, by
It is a prohibition made against a counsel for the revealing the clients name, the said name would
benefit of his lawyer. furnish the only link that would form the chain of
testimony necessary to convict an individual of a
What happened in the case of Regala vs. crime, the clients name is privileged.
Sandiganbayan? That client identity is privileged in those
instances where a strong probability exists that
PCGG want to build up their case against the disclosure of the client's identity would
Eduardo Coujuanco for the anomalies in the implicate the client in the very criminal activity
COCO LEVY FUNDS. PCGG wants petitioners for which the lawyers legal advice was obtained.
divulge that Cojuangco indeed was a client of
their firm, as well as other information regarding The case was decided by a divided Supreme
Cojuangco. Court and therefore could not be considered
a doctrinal pronouncement. What do you
Issue: Can the PCGG compel petitioners to think was the big problem?
divulge its clients name?
The main contention of the dissenters was that
Held: NO. the rule on attorney-client privilege cannot be
used to hide a crime and the anomalies
As a matter of public policy, a clients identity involving the coco-levy funds involved a crime.
should not be shrouded in mystery. The general However, the point was resolved by the majority
is that a lawyer may not invoke the privilege and in this light: the client was still in the process of
discussing business matters with the law firm.


No crime has yet to be committed since the Give an example of a self-serving statement
same was in an indeterminate stage. Unless it
becomes clear that the matters confided upon WARNING: make sure na kumpleto lahat ng
the lawyers of the client constitute a crime, elements niyo kapag nagbigay kayo ng
ACCRA had no obligation to divulge information example. SHOTGUN QUESTION ETO.
regarding the same.
What happened in the case of Estrada vs.
ADMISSIONS AND CONFESSIONS Desierto?
What is a self-serving statement? Doctrine: The Angara diary is admissible in

evidence. It partakes the nature of an adoptive
It refers to one which has been made extra- admission. An adoptive admission is a partys
judicially by the party to favor his interest. reaction to a statement or action by another
person when it is reasonable to treat the partys
What is a disserving statement? reaction as an admission of something stated or
implied by the other person.
A disserving statement or an admission is any
extra-judicial statement or conduct (act or What happened in People vs. Holgado?
omission) by a party that is inconsistent with the
position the party presently takes. Facts: Sisenando Holgado and Filomeno
Morales had disputes about the occupation of
Declaration that I am a tenant of this certain land situated in the municipality of
house. Is that an admission? Pinamalayan, Province of Mindoro. On the
morning of June 15, 1927, the two men
It depends. See 2004 Jara Notes for a clearer happened to meet. The argument was renewed,
discussion. and they agreed to fight. They did engage in a
bolo duel with a fatal result for Filomeno
What are the requisites for an admission to Morales, who was killed almost instantly.
be admissible? Sisenando Holgado was also seriously wounded
but was able to proceed to a neighboring house.
1. It must involve matters of fact and not of From there Sisenando Holgado was taken to the
law; municipal building where he made a sworn
2. Be categorical and definite; statement before the municipal president, in
3. Be knowingly and voluntarily made; which he declared that only he and Filomeno
4. Be adverse to the admitters interest; Morales fought. About one month later,
otherwise it would be self-serving and Sisenando Holgado died from the wounds
inadmissible. received in the fight.
Why is an admission admissible while a self- The disputable point is whether the accused
serving statement not admissible? Eugenio Toledo intervened in the quarrel and
dealt a mortal blow to Filomeno Morales. For the
Man cannot make evidence for himself. The prosecution, there was presented the witness
reason for the rule is that what a man says Justina Villanueva, the querida of Filomeno
against his own interest may be safely believed; Morales, who testified to the presence and
but it is not safe to credit him where he is participation of Eugenio Toledo. Her testimony
advocating his interest. was partially corroborated by that of the witness
Justina Llave. On the other hand, the theory for
If a statement favorable to the interests of the defense was that Toledo was in another
the witness is uttered in court, is it still self- place when the fight between Morales and
serving? Holgado occurred and that his only participation
was on meeting Holgado, who was his landlord
Not anymore. Self-serving statements are or master, in helping him to a nearby house. To
allowed to be made in court. Malamang this effect is the testimony of the accused and of
kelangan mo ipaglaban yung kaso mo. Conrado Holgado, the son of Sisenando
Holgado. The defense also relied upon the
affidavit of Sisenando Holgado, Exhibit 1, which


was identified by the municipal president of declarant is available as a witness, his
Pinamalayan. extrajudicial statement should not be heard.
Where, however, the declarant is dead or has
Issue: WON the declaration of a third person disappeared, his previous statements, out of
against his own penal interest is covered by the court, if not inadmissible on other grounds, are
exceptions to the hearsay rule. the best evidence. But they are not rendered
inadmissible by the mere fact that the declarant
Held: Yes. In the case of Pace vs. State ([1911], is unavailable, - something else is necessary.
Court of Criminal Appeals of Texas, 135 One fact which will satisfy this necessity is that
Southwestern, 379), the appellant offered to the declaration is or was against the declarant's
prove in the trial court by the witness Byron Kyle interest, and this is because no sane person will
that on Saturday morning following the killing of be presumed to tell a falsehood to his own
the deceased on the previous Sunday he had a detriment.
conversation with Dick Cain, one of the parties
to the homicide, in which Dick Cain admitted the xxx xxx xxx
he killed the deceased. The court ruled:
Again, if, seems indisputable, the desire to close
. . . Wherever the state seeks to fasten the door to falsehood which cannot be detected
criminality upon the party on trial, the accused dictates the exclusion of such testimony, the
had a right to meet and rebut any testimony question as to the effect to be given to such a
which may be offered against him in any confession is solely one of weight and credibility.
legitimate way. If Cain had been upon trial, his ...
confession to the witness Kyle would have been Any man outside of a court and unhampered by
admissible beyond any shadow of doubt, and the pressure of technical procedure, unreasoned
would have been upon trial, his confession to rules of evidence, and cumulative authority,
the witness Kyle would have been admissible would say that if a man deliberately
beyond any shadow of doubt, and would have acknowledged himself to be the perpetrator of a
been strong evidence to go before the jury. The crime and exonerated the person charged with
estate would have been seeking to introduce the crime, and there was other evidence
this and with great earnestness, and correctly indicative of the truthfulness of the statement,
so. If appellant could prove that another party or the accused man should not be permitted to go
others committed the homicide, it might prove to prison or to the electric chair to expiate a
his innocence, and would be strong evidence to crime he never committed. Shall Judges trained
go before the jury in his favor. Any legitimate and experienced in the law display less
fact or circumstance which would meet or tend discerning common sense that the layman and
to meet the state's case and break the force of allow precedent to overcome truth?
criminative facts introduced against the accused
is always admissible. Appellant's contention was Adoptive admission vs. Admission by
that he did not kill the deceased, but that Cain Silence
did. The state's theory was the appellant shot
the deceased, and Cain did not shoot him. Adoptive Admission Admission by
Under the rules of evidence this testimony was Silence
clearly inadmissible. A partys reaction to a An act or declaration
statement or action by made in the presence
We would like finally to turn attention to what another person when it and within the hearing
was said by the editor of L. R. A. in his note in is reasonable to treat or observation of a
volume 37 hereinbefore referred to, viz: the partys reaction as party who does or
an admission of says nothing when the
The purpose of all evidence is to get at the truth. something stated or act or declaration is
The reason for the hearsay rule is that the implied by the other such as naturally to
extrajudicial and unsworn statement of another person call for action or
is not the best method of serving this purpose. In comment if not true,
other words, the great possibility of the and when proper and
fabrication of falsehoods, and the inability to possible for him to do
prove their untruth, requires that the doors be so.
closed to such evidence. So long therefore as a


What is the principle of Res Inter Alios Acta? What are the requisites for one to be a state
witness?
The res inter alios acta rule ordains that the
rights of a party cannot be prejudiced by an act, 1. There is absolute necessity for the
declaration, or omission of another. An testimony of the accused whose
extrajudicial confession is binding onlyupon the discharge is requested;
confessant and is not admissible against his co- 2. There is no other direct evidence
accused. the reason for the rule is that, on a available for the proper prosecution of
principle of good faith and mutual convenience, the offense committed, except the
a mans own acts are binding upon himself, and testimony of the said accused;
are evidence against him. So are his conduct 3. The testimony of said accused can be
and declarations. Yet it would not be rightly substantially corroborated in its material
inconvenient, but also manifestly unjust, that a points;
man should be bound by the acts of mere 4. Said accused does not appear to be the
unauthorized strangers; and if a party ought not most guilty; and
to be bound by the acts of strangers, neither 5. Said accused has not at any time been
ought their acts or conduct be used as evidence convicted of any offense involving moral
against him (People v. Raquel, G.R. No. turpitude.
119005).
Should a motion be filed?
What are the two branches of the Res Inter
Alios Acta Rule? Yes. A motion must be filed by the prosecution
before it rests its case.
1. The rule that the rights of a party cannot
be prejudiced by an act, declaration, or Does it have to be heard ex-parte?
omission of another;
2. The rule that evidence of previous NO. before resolving such motion to discharge
conduct or similar acts at one time is not the accused to be a state-witness, the court
admissible to prove that one did or did shall require the prosecution to present evidence
not do the same act at another time. and the sworn statement of the proposed state
witness at a hearing of the motion to discharge.
What are the exceptions to the rule?
As prosecutor, how do you plan to convince
1. Admission by a co-partner or agent; the court to allow the accused to testify?
2. Admission by a co-conspirator;
3. Admission by privies. You convince the court by complying with all the
requisites mandated by the law for one to
If a person takes the witness stand and become state witness. More importantly, you
makes an admission prejudicial to a third have to prove that the accused applying to
person, is the rule on res inter alios acta become a state-witness must not be the most
still applicable? guilty of the crime charged.
NO. Statements made in open court by a What assurance can you give the proposed
witness implicating a person aside from his own state-witness in case he testifies?
judicial admissions, are admissible as
declarations from one who has personal If the court denies the motion for discharge of
knowledge of the facts testified thereto. the accused as state witness, his sworn
statement shall be inadmissible as evidence.
Who is a state witness?
Discuss the procedure for one to become a
He is one of two or more persons jointly charged witness for purposes of RA 6981.
with the commission of a crime but who is
discharged with his consent as such accused so MEMAID WORK LANG ITO.
that he may be a witness for the State


What is the assurance that the accused will If the person does not comply with the
testify for the state? conditions, may the sworn statement be
used against him? (Sworn statement of a
Any witness admitted into the program of the person who refuses to testify thereon)
Witness Protection, Security and Benefit Act
cannot refuse to testify or give evidence or Yes, if he fails or refuses to testify or to continue
produce books, documents, records or writings to testify without just cause when lawfully
necessary for the prosecution of the offense or obliged to do so, he shall be prosecuted for
offenses for which he has been admitted into the contempt. If he testifies falsely or evasively, he
Program on the ground of the constitutional right shall be liable to prosecution for perjury. If a
against self-incrimination but he shall enjoy State witness fails or refuses to testify, or
immunity from criminal prosecution and cannot testifies falsely or evasively, or violates any
be subjected to any penalty or forfeiture for any condition accompanying such immunity without
transaction, matter or thing concerning his just cause, as determined in a hearing by the
compelled testimony or books, documents, proper court, his immunity shall be removed and
records and writings produced (Sec. 14, R.A. he shall be subject to contempt or criminal
6981). prosecution. Moreover, the enjoyment of all
rights and benefits under R.A. 6981 shall be
Who may be admitted to the Witness deemed terminated. The witness may, however,
Protection, Security and Benefit Program? purge himself of the contumacious acts by
testifying at any appropriate stage of the
Any person who has witnessed or has proceedings (Sec. 13, R.A. 6981).
knowledge or information on the commission of
a crime and has testified or is testifying or about If in a criminal case the accused pleads
to testify before any judicial or quasi-judicial guilty, can he be convicted of the crime
body, or before any investigating authority may charged?
be admitted provided that:
YES. No need to present evidence on the part of
1. the offense in which his testimony will the prosecution.
be used is a grave felony as defined
under the Revised Penal Code, or its How may an accused change his plea?
equivalent under special laws;
2. his testimony can be substantially At any time before the judgment of conviction
corroborated in its material points; becomes final, the court may permit an
3. he or any member of his family within improvident plea of guilty to be withdrawn and
the second civil degree of consanguinity be substituted by a plea of not guilty.
or affinity is subjected to threats to life or
bodily injury or there is a likelihood that Can the prosecutor make use of the
he will be killed, forced, intimidated, withdrawn plea as an evidence against him?
harassed or corrupted to prevent him
from testifying, or to testify falsely, or No. a plea of guilty later withdrawn, or an
evasively, because or on account of his unaccepted offer of a plea of guilty to a lesser
testimony; and offense, is not admissible in evidence against
4. he is not a law enforcement officer, even the accused who made the plea or offer.
if he would be testifying against the
other law enforcement officers. In such Is the same applicable in a civil case? If so,
a case, only the immediate members of how can you do it?
his family may avail themselves of the
protection provided for under the Act Yes. Such can be done by amending a partys
(Sec. 3, R.A. 6981). pleadings. Upon admissions made in an answer
he can amend the admissions in the answer
into a specific denial.


RULE NO DNA EVIDENCE 2. The biological sample:
3. was not previously subjected to the type
What is DNA? of DNA testing now requested; or
4. was previously subjected to DNA
DNA (deoxyribonucleic acid) is the chain of testing, but the results may require
molecules found in every nucleated cell of the confirmation for good reasons;
body (Sec. 3, Rule on DNA Evidence). It is the 5. The DNA testing uses a scientifically
fundamental building block of a persons entire valid technique;
genetic make-up, which is found in all human 6. The DNA testing has the scientific
cells and is the same in every cell of the same potential to produce new information
person (People v. Umanito, G.R. No. 172607, that is relevant to the proper resolution
Oct. 26, 2007). of the case; and
7. The existence of other factors, if any,
What is DNA evidence? which the court may consider as
potentially affecting the accuracy or
It constitutes the totality of the DNA profiles, integrity of the DNA testing (Sec. 4).
results and other genetic information directly
generated from DNA testing of biological Is the order granting the DNA testing
samples (Sec. 3). appealable?
What is DNA testing? No. An order granting the DNA testing shall be
immediately executory and shall not be
It means verified and credible scientific methods appealable. Any petition for certiorari initiated
which include the extraction of DNA from therefrom shall not, in any way, stay the
biological samples, the generation of DNA implementation thereof, unless a higher court
profiles and the comparison of the information issues an injunctive order (Sec. 5).
obtained from the DNA testing of biological
samples for the purpose of determining, with During Alexis trial for rape with murder, the
reasonable certainty, whether or not the DNA prosecution sought to introduce DNA
obtained from two or more distinct biological evidence against him, based on forensic
samples originates from the same person (direct laboratory matching of the materials found at
identification) or if the biological samples the crime scene and Alexis hair and blood
originate from related persons (Kinship samples. Alexis counsel objected, claiming
Analysis). that DNA evidence is inadmissible because
the materials taken from Alexis were in
May DNA testing be conducted absent a violation of his constitutional right against
prior court order? self-incrimination as well as his right of
privacy and personal integrity. Should the
Yes. The Rules on DNA Evidence does not DNA evidence be admitted or not? Reason.
preclude a DNA testing, without need of a prior
court order, at the behest of any party, including The DNA evidence should be admitted. It is not
law enforcement agencies, before a suit or in violation of the constitutional right against self-
proceeding is commenced (Sec. 4). incrimination or his right of privacy and personal
integrity. The right against self-incrimination is
What are the requisites for the issuance of a applicable only to testimonial evidence.
DNA testing order? Extracting a blood sample and cutting a strand
from the hair of the accused are purely
In pending actions, the appropriate court may, at mechanical acts that do not involve his
any time issue a DNA testing order either motu discretion nor require his intelligence.
proprio or upon application of any person who
has a legal interest in the matter in litigation after Is the result of DNA testing automatically
due hearing and notice to the parties and upon admitted as evidence in the case in which it
showing of the following: was sought for?
1. A biological sample exists that is No. The grant of a DNA testing application shall
relevant to the case; not be construed as an automatic admission into


evidence of any component of the DNA What is the remedy of the convict if the post-
evidence that may be obtained as a result conviction DNA testing result is favorable to
thereof (Sec. 5). him?
If a DNA test was conducted, what are the The convict or the prosecution may file a petition
possible results that it may yield? for a writ of habeas corpus in the court of origin.
In case the court, after due hearing, finds the
1. The samples are similar, and could have petition to be meritorious, it shall reverse or
originated from the same source (Rule modify the judgment of conviction and order the
of Inclusion). In such a case, the analyst release of the convict, unless continued
proceeds to determine the statistical detention is justified for a lawful cause.
significance of the similarity.
2. The samples are different hence it must What should the courts consider in
have originated from different sources determining the probative value of DNA
(Rule of Exclusion). This conclusion is evidence?
absolute and requires no further
analysis; 1. The chain of custody, including how the
3. The test is inconclusive. This might biological samples were collected, how
occur due to degradation, they were handled, and the possibility of
contamination, failure of some aspect of contamination of the samples;
protocol, or some other reasons. 2. The DNA testing methodology, including
Analysis might be repeated to obtain a the procedure followed in analyzing the
more conclusive result (People v. samples, the advantages and
Vallejo, G.R. No. 144656, May 9, 2002). disadvantages of the procedure, and
compliance with the scientifically valid
What should the courts consider in standards in conducting the tests;
evaluating DNA testing results? 3. The forensic DNA laboratory, including
accreditation by any reputable
1. The evaluation of the weight of matching standards-setting institution and the
DNA evidence or the relevance of qualification of the analyst who
mismatching DNA evidence; conducted the tests. If the laboratory is
2. The results of the DNA testing in the not accredited, the relevant experience
light of the totality of the other evidence of the laboratory in forensic casework
presented in the case; and and credibility shall be properly
3. DNA results that exclude the putative established; and
parent from paternity shall be conclusive 4. The reliability of the testing result (Sec.
proof of non-paternity (Sec. 9) 7).
To whom is post-conviction DNA testing What are the things to be considered in

available? assessing the probative value of DNA
evidence?
Post-conviction DNA testing may be available,
without need of prior court order, to the 1. How the samples are collected;
prosecution or any person convicted by final and 2. How they were handled;
executory judgment. 3. The possibility of the contamination of
the samples;
What are the requisites for the applicability 4. The procedure followed in analyzing the
of the Post-conviction DNA testing? samples;
5. Whether the proper standards and
1. Existing biological sample; procedures were followed in conducting
2. Such sample is relevant to the case; the tests; and
and 6. The qualification of the analyst who
3. The testing would probably result in the conducted the tests. (Ibid.)
reversal or modification of the judgment
of conviction (Sec. 6).


What are the things to be considered in HEARSAY EVIDENCE
evaluating whether or not the DNA testing
methodology is reliable? What is Sec. 36?
1. The falsifiability of the principles or A witness can testify only to those facts which
methods used, that is, whether the he knows of his personal knowledge; that is,
theory or technique can be and has which are derived from his own perception,
been tested; except as otherwise provided in these rules.
2. the subjection to peer review and
publication of the principles or methods; Are there any exceptions to the hearsay
3. The general acceptance of the rule?
principles or methods by the relevant
scientific community; 1. dying declaration
4. The existence and maintenance of 2. declaration against interest
standards and controls to ensure the 3. act or declaration about pedigree
correctness of data generated; 4. family reputation or tradition regarding
5. The existence of an appropriate pedigree
reference population database; and 5. common reputation
6. The general degree of confidence 6. res gestae
attributed to mathematical calculations 7. entries in the ordinary course of
used in comparing DNA profiles and the business
significance and limitation of statistical 8. entries in official records
calculations used in comparing DNA 9. commercial lists
profiles. 10. learned treatises
11. testimony or deposition at a former
What Kind of Evidence is DNA Evidence? proceeding
12. Sec. 28 of the Rules on Examination of
It can be object, documentary, or testimonial, a Child Witness
depending on what you present in court. It is not 13. Rule 8 of the Rules on Electronic
exclusively classifiable. Evidence
In post-conviction DNA testing, what does Can a documentary evidence be hearsay?

conviction mean?
YES. The one who knows the contents of the
Conviction means a person has been convicted document must testify in court and must have
by final judgment. Even if he is already personal knowledge of the facts stated therein.
sentenced by final judgment, he may still avail of
such remedy. When a document is presented in court, there is
a presumption that someone has prepared the
Does the rule on post-conviction DNA testing said document. In order to properly submit the
violate the rule on immutability of judgment? same, the person who prepared it or who had a
part in the execution of the said document must
No. Once post-conviction testing turns out to be testify as to the contents of the same. If it the
favorable to the accused, it has the same effect said document was merely presented to the
as annulling the courts judgment. court without giving the adverse party any
opportunity to cross examine the person who
If that is the case, then why is the remedy a prepared or who was part of the preparation of
petition for Habeas Corpus? Why not an the said document, then the same document
action for annulment of judgment under Rule constitutes hearsay evidence.
47?
Is hearsay evidence relevant? Why should
An action for habeas corpus has the same effect we exclude such relevant evidence?
as that of an action for annulment of judgment.
The difference is that according to Jara, Rule 47 Hearsay evidence is relevant because it may
is only available to civil cases. Habeas Corpus have a reasonable tendency to prove the facts in
may be availed of in criminal cases. issue. However, it is not competent; it is


expressly excluded by the Rules. The reason for Supposing it is the other way around? If it is
its exclusion is the absence of the opportunity to the witness who testifies according to his
cross-examine the witness testifying before the own personal knowledge? Is it possible that
court. The veracity of the facts cannot be tested. it can be hearsay? (Jara 2004 Notes)
Opportunity to cross-examine
Yes. There is still hearsay evidence if the
What are the two aspects of hearsay witness testifies according to his own personal
evidence? knowledge, BUT his testimony was not
subjected to cross-examination.
1. Testimonial evidence that was not
derived from personal knowledge; NOTE: If failure of the witness to return to court
2. Testimony of a witness that may be is due to the act of the adverse party, then such
derived from personal knowledge but testimony does not become hearsay.
did not give the adverse party an
opportunity to cross-examine the What is the Rule on Independently Relevant
witness. Statements? Is it hearsay?
Can you not cross-examine the witness who The doctrine provides that a witness ma testify
offered the hearsay evidence? to the statements made by a person if, for
instance, the fact that such statements were
YES. OPINION (HPM): In fact, you can ask made by the latter would indicate the latters
anything during cross examination (generally, mental state or physical condition. Such
we follow the ENGLISH RULE), therefore, there statements are relevant since the statements
is nothing wrong if you cross-examine the made are the very facts in issue or
witness. You can cross-examine him on how he circumstantial evidence of the facts in issue.
acquired the hearsay knowledge, or those It is not hearsay evidence. It may have certain
independently relevant statements. See also the characteristics of hearsay, but its application is
purposes of cross-examination, and it does not not hearsay. It is DIRECT EVIDENCE.
only include testing the truthfulness of the
statement but also to discredit the witness. What are the different classifications of
Hence, even if the testimony is hearsay, you can Independently Relevant Statements?
attack the credibility of the witness during cross-
examination. However, it is submitted that once 1. Those statements which are the very
you cross-examine a witness who testified on facts in issue; and
hearsay, the adverse party is deemed to have 2. Those statements which are
waived his right to object on its admissibility. The circumstantial evidence of the facts in
objection must be raised during the direct exam, issue.
hence, if the counsel was able to object, then
there is no necessity for him to cross-examine. Does the hearsay rule apply to summary
procedure? Is there an opportunity to cross-
OPINION (IPL): You could cross-examine the examine in summary procedure?
witness who offered the hearsay testimony.
WHAT YOU CANNOT CROSS-EXAMINE IS YES. Although in both civil and criminal cases
THE PERSON WHO MADE THE OUT-OF- the direct testimonies of the witnesses shall be
COURT STATEMENT. That is the problem the contained in their affidavits, the accused in
hearsay rule wants to address. criminal cases covered by Summary Procedure
has the right to cross-examine the witnesses.
It is because of the above reason that if the However, no such right is available to the parties
affiants of affidavits do not take the witness in civil cases. But see Sec. 20 of the Rule on
stand to affirm their averments in their affidavits, Summary Procedure (which is applicable to both
such affidavits must be excluded from the civil and criminal) such that, hearsay statement
judicial proceeding, being inadmissible hearsay. shall subject witness to disciplinary proceedings
and expunge the statements off the record.


People vs. Cloud Cloud and family left his house at No. 69 San
Isidro Street, barangay Sto. Nio, Quezon City[;]
At around 11:00 oclock in the morning on the boys body was brought to Rey Funeral
August 2, 1988 while a certain Mrs. Josephine Homes[;] Dr. E. Cacas certified that the cause of
Aguilar was at the emergency room of St. Lukes death of John Albert Cloud is broncho
Hospital, Quezon City to have some stitches pneumonia with heart complications (exh. D-48)
removed from her daughters head her attention [;] and that the autopsy on the cadaver was
was called by a limpid boy being carried by a waived by Natividad Calpito Cloud who claimed
man followed by an old woman who was to be the boys mother per her Affidavit dated
shouting hysterically. The boy is John Albert August 3, 1988 (Exh. D-47). Atty Balbin
Cloud. She noticed that the face of the boy was thereafter contacted the NBI and requested for
swollen and bruised and his body covered with the exhumation of the boys cadaver.
dry blood. A nurse commented that the little boy
not more than three years old must have Issue: WON the statements of Josephine Aguilar
been hit by a truck (tsn, J. Aguilar, June 21, are admissible as evidence.
1993, pp. 7-10, 14-15, 33).
Held: Yes. The trial court was of the opinion that
But the words of the old woman the lola - of what Ms. Aguilar heard or saw does not merely
the little boy, showed the cause of the injury to constitute an independently relevant statement
be otherwise for she was repeatedly saying in a which it considered as an exception to the
potpourri of cries and tears: Pinatay siya nf hearsay rule, only as to the tenor rather than the
sariling ama! The old woman told the people intrinsic truth or falsity of its contents.[18] We
inside the Emergency Room that the boys will clarify this. Insofar as the statements of
father Robert Cloud wouldnt allow John Rufina Alconyes are concerned, they are
Albert to come with her and when the boy admissible as part of the res gestae they having
started to cry and wouldnt stop crying his father been caused by and did result from the startling,
began to beat the boy hard, tied his hands, and if not gruesome, occurrence that she witnessed;
made tusok, tusok in his body. The father and these were shortly thereafter uttered by her
continued beating the boy even when with spontaneity, without prior opportunity to
excrements were already coming out from the contrive the same. The report made thereof by
boys anus (tsn. J Aguilar, June 21, 1993, pp. Josephine Aguilar is not hearsay since she was
12-13, 22). actually there and personally heard the
statements of Alconyes which she recounted in
The male companion of the boy said to the old court. Her account of said statements of
woman: Hoy, tigil ka na! Wag kang maingay. Alconyes are admissible under the doctrine of
And told the people at E.R.: Sira and ulo ng Aindependently relevant statements, with
matanda, eh! (tsn, J Aguilar, July 12, 1993, pp. respect to the tenor and not the truth thereof,
8-9). But the old woman wouldnt stop and since independent of the truth or falsity of the
continued to say: Putang-ina ang ama niya . . . same they are relevant to the issue on the cause
Hayop siya! of the death of the victim.
When the doctor pronounced the boy dead the Who was the Ponente?
old woman knelt before him and cried like (Ix)ion
(tsn, J. Aguilar, June 21, 1993, p. 10). His Justice Regalado
baptismal certificate says that John Albert was
born on October 2, 1987 to Janet Villagracia and The decision made use of independently
John Robert Cloud (Exh. 3). relevant statements. How?
The ear-piercing would probably have ended The witness in this case testified as to the fact
there but for the fact that Mrs. Aguilars that a certain old lady was screaming invectives
conscience was bothered by what she saw and against a person who allegedly killed his son.
heard as narrated above and decided to do
something about it. She approached Atty.
Remedios Balbin, Chairman in Quezon City of a
civil liberties organization. Atty. Balbin, after a
few weeks of research found out that Robert


Does that mean that the prosecution can Why is it exempted?
convict a person of a serious crime using
only circumstantial evidence? Necessity and trustworthiness.
YES, provided that: What is the legal maxim that is usually

quoted?
1. there is more than one circumstance;
2. the facts from which the inferences are Truth sits on the lips of the dying man.
derived are proven; and
3. the combination of all the circumstances What if the defense presents evidence that
is such as to produce a conviction the declarant during his lifetime is a
beyond reasonable doubt. congenital liar? Is that a good strategy on
the part of the defense?
What do you mean by the term ante litem
motam? NO. That is not a good defense. It will not even
have any effect at all. The rule on dying
In cases applicable, the statement must be prior declarations does not require that the declarant
to the controversy, but according to CJ Moran, it be one of proven honesty. For as long as the
means that it must not only be prior to the suit essential elements of a dying declaration is
but prior to any controversy even if a suit has not present, the same may be admitted in evidence.
yet been instituted.
Essential Elements/Requisites of a dying
What is the concept of a dying declaration? declaration?
The declaration of a dying person, made under Requisites:

the consciousness of an impending death, may
be received in any case wherein his death is the 1. That death is imminent and the
subject of inquiry, as evidence of the cause and declarant is conscious of that fact;
surrounding circumstances of such death. 2. That the declaration refers to the cause
and the surrounding circumstances of
Can we apply this to a criminal case? How such death;
about a civil case (HOW)? 3. That the declaration relates to the facts
which the victim is competent to testify
Commonly applicable to criminal cases since the to;
subject of the statement is the death of the 4. That the declaration is offered in a case
declarant. However, it is applicable to civil cases wherein the declarants death is subject
when the subject matter of the cases involves of the inquiry (the victim necessarily
the death of the declarant, or that the death is a must have died);
vital issue in the civil case. 5. That the statement is complete in itself
(People v. De Joya, G.R. No. 75028,
As long as the relevance is clear, a dying November 8, 1991); and
declaration may now be introduced in a criminal 6. The declarant should have died.
or a civil action and the relevance is satisfied
when the subject of the inquiry is the death of How do you prove to the court that the
the declarant himself. statements were made under the
consciousness of an impending death?
Must a dying declaration be in writing?
A declaration will be deemed as having been
NO. The Revised Rules on Evidence do not made under the consciousness of imminent
require that a dying declaration must be made in death, in consideration of:
writing to be admissible. Indeed, to impose such
a requirement would be to exclude many 1. The words or statements of the
statements from a victim in extremis for want of declarant on the same occasion;
paper and pen at the critical moment (People v. 2. His conduct at the time the declaration
Viovicente, G.R. No. 118707). is made;


3. The serious nature of his wounds as Distinction of declaration against interest vs.
would necessarily engender a belief on admission?
his part that he would not survive
therefrom. Admissions against interest are those made by a
party to a litigation or by one in privity with or
Can a dying declaration be used if the crime identified in legal interest with such party, and
charged is Rape with Homicide? are admissible whether or not the declarant is
available as a witness. Declarations against
Only as to the death, i.e., the facts surrounding interest are those made by a person who is
the death, but not the facts surrounding the neither a part nor in privity with a party to the
rape. suit, are secondary evidence, but constitute an
exception to the hearsay rule, and are
Jara: if the declarant says that he/she was admissible only when the declarant is
raped, and subsequently dies, that cannot be unavailable as a witness.
considered a dying declaration.
Give an example of a declaration against
What if the victim does not die? interest.
Always remember DEATH IS AN ESSENTIAL Make sure to give an example both for a criminal
ELEMENT. Why? If the declarant is alive, he case and a civil case, and remember na dapat
can testify in court personally. It will not be kumpleto lahat ng elements.
considered as a dying declaration, but
nevertheless, it may be admissible as part of a What are the evidenciary Rules on Pedigree?
res gestae
SEC. 39. Act or declaration about pedigree.
What if victim dies only after three (3) The act or declaration of a person deceased, or
months? unable to testify, in respect to the pedigree of
another person related to him by birth or
As long as he believed that he is going to die. marriage, may be received in evidence where it
occurred before the controversy, and the
What is s declaration against interest? relationship between the two persons is shown
by evidence other than such act or declaration.
The declaration made by a person deceased, or The word "pedigree" includes relationship, family
unable to testify, against the interest of the genealogy, birth, marriage, death, the dates
declarant, if the fact asserted in the declaration when and the places where these facts
was at the time it was made so far contrary to occurred, and the names of the relatives. It
declarants own interest, that a reasonable man embraces also facts of family history intimately
in his position would not have made the connected with pedigree.
declaration unless he believed it to be true.
SEC. 40. Family reputation or tradition regarding
Requisites? pedigree. The reputation or tradition existing
in a family previous to the controversy, in
1. That the declarant is dead or unable to respect to the pedigree of any one of its
testify; members, may be received in evidence if the
2. That it relates to a fact against the witness testifying thereon be also a member of
interests of the declarant; the family, either by consanguinity or affinity.
3. That at the time he made said Entries in family bibles or other family books or
declaration the declarant was aware that charts, engraving on rings, family portraits and
it was contrary to his aforesaid interest; the like, may be received as evidence of
and pedigree.
4. That the declarant had no motive to
falsify and he believed such declaration
to be true.


Distinctions between Sec. 39 and Sec. 40. What is the rule on Res Gestae?
Sec. 39 Sec. 40 Statements made by a person while a startling

Act or declaration Family reputation or occurrence is taking place or immediately prior
about pedigree. tradition regarding or subsequent thereto with respect to the
pedigree. circumstances thereof, may be given in
Declarant is deceased Declarant is the evidence as part of the res gestae. So, also,
or unable to testify. witness himself. statements accompanying an equivocal act
material to the issue, and giving it a legal
Witness need not be a Witness is a member significance, may be received as part of the res
member of the family. of the family. gestae.
Relation of the The witness is himself
declarant and the the one to whom the Why are they hearsay?
person subject of the fact relates, it is not
inquiry must be necessary for him to Because the one testifying in court is not the one
established by establish by who made the declaration.
independent evidence independent evidence
his relationship to the Why do we admit them?
family.
Necessity and Trustworthiness. There are other
Give an example. declarations which are admitted as original
evidence, being distinguished from hearsay by
Just give an example regarding your family, para their connection with the principal fact under
mas medaling idefend. He grills a lot of students investigation. The affairs of men consist of a
in examples. complication of circumstances so intimately
inter-woven as to be hardly separable from each
When were you born? Is that hearsay? So if other.
it is hearsay, when you state that in court,
the court will not believe you? They are trustworthy because the statements
are made instinctively, while the declarants
the fact that you know your date of birth does mental power for deliberation in concocting
not come from your own personal knowledge matters are controlled and stilled by the
because at the time you were born you were shocking influence of a startling occurrence, so
completely ignorant or innocent. In fact, your that all his utterances at the time are the reflex
information of your birth is derived from another product of immediate sensual impressions,
source. Nevertheless, the information regarding unaided by retrospective mental action.
your birth is admissible for the convenience of Necessity, because such natural and
everybody. It is a matter of necessity. spontaneous utterances are more convincing
than the testimony of the same person on the
The birth certificate is also hearsay evidence, stand.
but because it is a public document. Documents
consisting of entries in public records made in Different classifications of Res Gestae
the performance of a duty by a public officer are Declarations
prima facie evidence of the facts therein stated.
All other public documents are evidence, even Verbal Acts Spontaneous
against a third person, of the fact which gave Statements
rise to their execution and of the date of the The res gestae is the The res gestae is the
latter. equivocal act. startling occurrence.
Verbal act must be Statements may be
Basis for admitting such evidence contemporaneous with made prior, or
or must accompany the immediately after the
Necessity and Trustworthiness equivocal act. startling occurrence.


What are Spontaneous statements? doing it may be proved if they are becessary to
understand it.
Statements made by a person while a startling
occurrence is taking place, or immediately prior What are the requisites for verbal acts to be
or subsequent thereto, with respect to the admissible?
circumstances thereof.
1. There must be an equivocal act;
What is the concept of a startling 2. The equivocal act must be material to
occurrence? the issue;
3. The statement in question muset be
As it is essential that the statements be natural necessary to understand the equivocal
and spontaneous, unreflected and instinctive, it act; and
is also essential that they should have been 4. The statement must accompany the
caused by something startling enough to equivocal act.
produce nervous excitement, and to keept the
will dormant so far as any deliberation in What is an equivocal act?
concocting matters for speech or selecting
words is concerned. JARA: it is an act that is capable of different
interpretations. In other words, pwedeng lagyan
Example? ng kulay yung mga ginawa mo. Pwedeng may
ibang kahulugan. You thought that because
A murder, a suicide, a railroad accident and the sobrang bait ni boylaloo/girlaloo sa iyo eh kayo
like. na (ano yun caritas?)
What if the statements were made for some It is only when the thing done is equivocal that it
period after the startling occurrence took is competent to prove the declarations
place? accompanying it as falling within the cases of
res gestae. What a person says that is
Experience shows that a startling occurrence explanatory of an equivocal or ambiguous act
may extend its exciting influence over a which he is then doing, or situation which he is
subsequent period of time which may be long or then occupying as that of a person in
short according to the relative gravity or possession of property may be proved as re s
seriousness of the startling occurrence. If the gestae.
statements were made while the nervous
excitement was still working on the declarants What are entries in Official Record?
mind, they are admissible; otherwise, they are
not. Entries made in official records made in the
performance of his duty by a public officer of the
How does one determine the spontaneity of Philippines, or by a person in the performance of
the occurrence? a duty specially enjoyed by law.
1. Lapse of time between the act and the Are the items recorded in the birth certificate
declaration relating to it; considered hearsay?
2. Whether there was an opportunity for
fabrication or a likelihood of it; YES, but they are considered as an exception.
3. The mental and physical condition of the
declarant and the character of the Why is a birth certificate trustworthy?
occurrence;
4. The nature and form of the declaration. Nobodys interested with the birth of a person.
Jara: You might just be another bitch in this
What are verbal acts? world. Furthermore, the law makes it clear that
they are prima facie evidence of the facts stated
Statements accompanying an equivocal act therein.
material to the issue and giving it a legal
significance. Statements accompanying and
explaining that act made by or to the person


If a mother contradicts the date alleged in the d. Impressions of the emotion,
birth certificate, what should be given behavior, condition or
greater probative weight? appearance of a person.
Birth certificate. See Sec. 23, Rule 132. What are the requisites for an Expert Opinion
to be admissible?
When are business records excepted from
the rule of hearsay evidence under the rules 1. That the fact to be proved is one
on Electronic Evidence? requiring expert;
2. That the witness is really an expert.
The hearsay rule is inapplicable if the following
requisites are present: What are the Daubert and Frye standards?
1. A memorandum, report, record or data
compilation of acts, events, conditions, Frye Standard
opinions, or diagnoses,
2. Made by electronic, optical, or other Frye involved the admissibility of opinion
similar means, evidence based upon the use of an early version
3. At or near the time of or from of the Polygraph. The D.C. Circuit Court held
transmission or supply of information, that scientific evidence was admissible if it was
4. By a person with knowledge thereof, based on a scientific technique generally
5. And kept in the regular course or accepted as reliable in the scientific community.
conduct of a business activity, Thus, Expert Testimony was admitted based on
6. And such was the regular practice to the expert's credentials, experience, skill, and
make such memorandum or report, reputation. The theory was that deficiencies or
7. All of which are shown by the testimony flaws in the expert's conclusions would be
of the custodian or other qualified exposed through cross-examination. This
witness (Sec. 1, Rule 8, REE). decision became known as the Frye test or the
general-acceptance test. By the 1990s, the Frye
OPINION AND CHARACTER EVIDENCE test had become the majority view in federal and
state courts for the admissibility of new or
What is the Opinion Rule? unusual scientific evidence, even in view of
Federal Rule of Evidence 702, passed in 1975,
As a rule, the opinion of a witness is which some courts believed to provide a more
inadmissible because when a witness testifies, a flexible test for admissibility of opinion testimony
witness does so with respect to facts personally by expert witnesses.
observed by him and it is for the court to draw
conclusions from the facts testified to. Daubert - Kumho Standard:
Are there any exceptions? In Daubert v. Merrell Dow Pharmaceuticals, Inc.,

the U.S. Supreme Court changed the standard
1. The opinion of a witness regarding a for admissibility of expert testimony. Under
matter requiring special knowledge, skill, Daubert, a trial judge has a duty to scrutinize
experience or training which he is evidence more rigorously to determine whether
shown to possess, may be received in it meets the requirements of Federal Rule of
evidence. Evidence 702. This rule states, "If scientific,
2. The opinion of a witness for which technical, or other specialized knowledge will
proper basis is given, may be received assist the trier of fact to understand the evidence
in evidence regarding: or to determine a fact in issue, a witness
a. The identity of a person about qualified as an expert by knowledge, skill,
whom he has adequate experience, training, or education, may testify
knowledge; thereto in the form of an opinion or otherwise, if
b. A handwriting with which he has (1) the testimony is based upon sufficient facts
sufficient familiarity; or data, (2) the testimony is the product of
c. The mental sanity of a person reliable principles and methods, and (3) the
with whom he is sufficiently witness has applied the principles and methods
acquainted; reliably to the facts of the case."


In Daubert, the Court stated that evidence based 2. Let him give his factual testimony, if he
on innovative or unusual scientific knowledge has knowledge of the facts;
may be admitted only after it has been 3. Begin the hypothetical question by
established that the evidence is reliable and asking him to assume certain facts as
scientifically valid. The Court also imposed a true;
gatekeeping function on trial judges by charging 4. Conclude the question, by, first asking
them with preventing "junk science" from the expert if he has an opinion on a
entering the courtroom as evidence. To that end, certain point assuming that these facts
Daubert outlined four considerations: testing, are true and secondly, asking him, after
peer review, error rates, and acceptability in the he has answered affirmatively, to give
relevant scientific community. These four tests his opinion on the point;
for reliability are known as the Daubert factors or 5. After he has stated his opinion, ask him
the Daubert test. to give his reasons.
In 1999, the U.S. Supreme Court significantly What is the rule on Character Evidence?
broadened that test and the trial court's
gatekeeping role to include expert testimony SEC. 51. Character evidence not generally
based on technical and other specialized admissible; exceptions:
knowledge. Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed. 2d 238 (a) In Criminal Cases:
(U.S. Mar 23, 1999) (NO. 97-1709). In Kumho,
the Court held that the gatekeeping obligation (1) The accused may prove his good moral
imposed upon trial judges by Daubert applies to character which is pertinent to the moral trait
scientific testimony as well as to expert opinion involved in the offense charged.
testimony. In order to meet its gatekeeping
obligation, a trial court may use the criteria (2) Unless in rebuttal, the prosecution may not
identified in Daubert only when they can be prove his bad moral character which is pertinent
applied to determine the reliability of either the to the moral trait involved in the offense
underlying scientific technique or the expert's charged.
conclusions. But inasmuch as the Daubert
gatekeeping function is meant to be a flexible (3) The good or bad moral character of the
one, it must necessarily be tied to the particular offended party may be proved if it tends to
facts of a case. Thus, the factors identified in establish in any reasonable degree the
Daubert do not constitute an exhaustive probability or improbability of the offense
checklist or a definitive litmus test. charged.
Are the said standards important in our (b) In Civil Cases:

jurisdiction?
Evidence of the moral character of a party in a
We do not apply these standards in this civil case is admissible only when pertinent to
jurisdiction. In the US, these standards are used the issue of character involved in the case.
with regard to the admissibility of scientific
evidence. See Rule on DNA Evidence, which (c) In the case provided for in Rule 132, Section
uses the standards to determine the probative 14.
value of DNA evidence and not to its
admissibility, because in our jurisdiction What is Character in the first place?
admissibility is determined by the axioms of
admissibility. See also the case of Rosendo C. Character means the peculiar qualities
Herrrera v. CA impressed by nature or by habit on a person
which distinguishes him from others; these
How do you qualify an expert witness? constitute his real character. In other words, it
means the aggregate of a persons traits,
In Presenting an Expert Witness: including those relating to care and skill and
their opposites.
1. Introduce and qualify the witness;


In a case for Estafa, is the character of the 3. In some instances by evidence of
accused relevant? particular acts of said person from which
his character may be inferred.
See Sec. 51(a). The good character of an
accused is admissible in evidence to show the Can we use testimonial evidence?
improbability of his doing the act charged. The
principle upon which good character maybe YES.
proved is, that it affords presumption against the
commission of a crime. Should the witness belong to the same
community as the accused?
Why dont we just follow the axiom of
relevancy? Why do we exclude character? YES. As Justice Berry said: As it is the fact of
disposition which is important and material,
The evidence of a persons character does not there can be no reason why this fact may not be
prove that such person acted in conformity with proved by any witness who knows what it is.
such character or trait in a particular occasion. There is certainly no reason why general repute
is any better or more satisfactory evidence of
Even if it is merely circumstantial, cant we disposition than the testimony of one who knows
not admit it based on the two axioms? that the disposition is from his personal
observation.
OPINION: The Rule provides for the instances
where character evidence may be presented. So If a person is presented to prove the
think. When are you going to admit character common reputation, is he not offering a
evidence? conclusion?
What moral trait is involved in swindling? No. It is merely the opinion of the community.
Honesty. Can the accused offer witness to prove that

he has not defaulted in his previous
Why is the accused allowed to prove his transactions, and thereby prove that he did
character right away while the prosecution not commit estafa?
cannot avail of the same privilege?
No. He cannot prove particular instances. What
On the part of the prosecution, the purpose is to he must prove is his reputation as perceived by
prevent a pronouncement of guilt not because the community.
there exist sufficient evidence of his guilt, but
because he is a bad man. BURDEN OF PROOF AND PRESUMPTIONS
The reason for the rule is that evidence of bad Burden of Proof; Definition?
character may create an unfair prejudice against
the accused who may be convicted not because Burden of proof is the duty of a party to present
he is guilty of the crime charged, but because of evidence on the facts in issue necessary to
his being a crooked man. establish his claim or defense by the amount of
evidence required by law.
How is character evidence offered? In other
words, what are the evidences that may be What are the two concepts of burden of
used in order to prove the character of a proof?
person?
1. Burden of going forward Partys
The best rule founded on sound logic and wise obligation of producing evidence.
experience is that the character of a person may 2. Burden of persuasion The burden of
be proved by: persuading the trier of fact that the
burdened party is entitled to prevail.
1. Evidence of reputation;
2. By witnesses who know him personally;
and


Distinguish Burden of Proof from Burden of cases, there is no need to distinguish since the
Evidence. accused is always presumed innocent.
Burden of Proof Burden of Evidence Reverse order of trial is possible in both civil
It is the duty of a party to It is the duty of a party to and criminal cases. How can the reverse
present evidence on the provide evidence at any order of trial take place if we do not allow the
facts in issue necessary stage of the trial until he court to inquire as to the defenses of the
to establish his claim or has established a prima accuseds offer of a not guilty plea?
defense by the amount of facie case, or the like
evidence required by law duty of the adverse party
If the accused raises justifying or exempting
(Sec. 1, Rule 131) to meet and overthrow
that prima facie case thus circumstances, the burden of evidence is
established. In both civil shifted, and he must prove the existence of
and criminal cases, the these circumstances.
burden of evidence lies
on the party who asserts In civil cases, reverse trial is allowed when the
an affirmative allegation. party raises an affirmative defense.
Does not shift as it Shifts to the other party
remains throughout the when one party has Reverse order of trial in civil cases can the
entire case exactly where produced sufficient
defendant stipulate in the pre-trial to change
the pleadings originally evidence to be entitled to
placed it a ruling in his favor the order of trial even if he raises mere
Generally determined by Generally determined by negative defenses in his pleading?
the pleadings filed by the the developments at the
party; and whoever trial, or by the provisions Generally no. However, see Sec. 5, Rule 30
asserts the affirmative of of the substantive law or wherein the court may, for special
the issue has the burden procedural rules which circumstances, allow modifications in the order
of proof may relieve the party of trial.
from presenting evidence
on the fact alleged
Can the same principle be applied in a
It does not shift the It creates a prima facie
criminal case?
burden of proof. case and thereby
However, the one who sustains the said burden
has the burden of proof is of evidence on the point NO. because such would violate his right to be
relieved from the time which it covers, shifting it informed of the nature of the offense charged
being, from introducing to the other party. It against him which is contained in the
evidence in support of his relieves those favored information.
averment because the thereby of the burden of
presumption stands in proving the fact What happened in Barlin vs. Ramirez?
the place of evidence. presumed.
The defendant, Ramirez, having been appointed
Who has the burden of proof? With respect by the plaintiff parish priest, took possession of
to the defendant, is it possible that he has the church on 7/5/01. He administered if as such
the burden of proof? under the orders of his superiors until 11/14/02.
His successor having been then appointed, the
General Rule: In civil cases, the plaintiff has the latter made a demand on this defendant for the
burden of proof; and in criminal cases, it is the delivery to him of the church, convent, and
prosecution because innocence is presumed. cemetery, and the sacred ornaments, books,
jewels, money, and other prop. of the church.
Exception: In civil cases, burden of proof is on The defendant, by a written document of that
the defendant if he raises affirmative defenses. date, refused to make such delivery, stating that
"the town of Lagonoy, in conjunction w/ the
Why do we distinguish between negative and parish priest of thereof, has seen fit to sever
affirmative defenses in a civil case? Can we connection w/ the Pope at Rome and his
apply the same distinctions in a criminal representatives in these Islands, and to join the
case? Filipino Church, the head of w/c is at Manila.
Because if the defendant raises affirmative The plaintiff brought this action against
defenses, he has the burden of proof. In criminal defendant, alleging in his amended complaint


that the Roman Catholic Church was the owner title to such properties; to refund to the plaintiff a
of the church bldg, the convent, cemetery, the certain sum paid by plaintiff for the recovery of
books, money, and other property belonging certain other real estate; and for an accounting
thereto, and asking that it be restored to the by the defendants of the rents, issues and profits
possession thereof and that the defendant of certain real estate during a certain period; and
render an account of the property which he had for P25,000 damages.
received and which was retained by him, and for
other relief. The action has been erroneously described in
appellant's brief as one to annul a series of real
Issue: WON defendant has the right over the estate transactions on the ground of duress.
properties mentioned. More correctly this is an action to compel the
defendants to account unto the plaintiff for the
Held: None. As to the defendant, Ramirez, it proceeds of a series of frauds practiced upon
appears that he took possession of the property said plaintiff.
as the servant or agent of the plaintiff. The only
right which he had to the possession at the time Issue: WON there is existence of fraud.
he took it, was the right which was given to him
by the plaintiff, and he took possession under Held: It is well recognized however, that a mere
the agreement to return that possession failure to live up to a contract is not fraudulent or
whenever it should be demanded of him. Under deceitful. The furthest the authorities have gone
such circumstances he will not be allowed, when along this line, and not all have gone that far, is
the return of such possession is demanded by to declare that if, at the time a contract is made,
him the plaintiff, to say that the plaintiff is not the one of the parties has present in his mind the
owner of the property and is not entitled to have purpose and intent to break it, after getting all he
it delivered back to him. The principle of law that can out of the other party, and that purpose and
a tenant can not deny his landlords title, which intent enter into a the contract as the main
is found in section 333, paragraph 2, of the element or consideration thereof on his part,
Code of Civil Procedure, and also in the Spanish there is fraud and deceit, the authorities holding
law, is applicable to a case of this kind. An that the state of mind of the party is a fact
answer of the defendant, Ramirez, in which he entering into the consideration of the contract
alleged that he himself was the owner of the without which it would not have been made; and
property at the time he received it from the that, by virtue of that state of mind, the other
plaintiff, or in which he alleged that the pueblo party was deprived of property. That fact
was the owner of the property at that time, would however must be alleged and proved and relied
constitute no defense. There is no claim made upon before it can be utilized by the person
by him that since the delivery of the possession asserting its existence. It was not alleged or
of the property to him by the plaintiff he has proved in this case and plaintiff does not rely
acquired the title thereto by other means, nor upon it in his brief in this court. His consent was
does he is own behalf make any claim whatever not obtained by deceit in any of the transactions.
either to the property or to the possession There did not exist in any one of the transactions
thereof. complained of a condition where "by words and
insidious machinations on the part of one of the
Important matters to discuss in the case: contracting parties the other is (was) induced to
execute a contract which, without them, he
1. Why did the Court choose the estoppel would not have made."
by deed presumption?
2. Why not estoppel in pais? Reduced to the lowest terms this action
3. Was there a tenant-landlord relationship constitutes an attempt on the part of the plaintiff
in this case? to extricate himself from a series of foolish
transactions, if we may accept his allegations
What happened in Vales vs. Villa? respecting them. As we have said, the sales
were all made by the plaintiff with full knowledge
Facts: This is an action to set aside certain of the facts and there appears nothing in the
transfers of real estate from the plaintiff to one of record which warrants a rescission of them from
the defendants and to require that defendant to the standpoint of fraud. The ultimate purpose of
recover by good and sufficient conveyance the the action is the recovery of the properties


described in the deed of March 22, 1909, word in its popular and not in its legal sense, the
remaining unsold. But, as appears from the defendants, in order to intimidate him and
evidence, the plaintiff has already recovered thereby obtain the conveyance, threatening him
those properties, having purchased them from with a refusal to comply with the verbal
the defendants on April l4, 1913, for P6,800. agreement to reconvey and the consequent loss
Before this action was begun, therefore, plaintiff of his properties. At each conveyance the
had obtained the very thing which he had been defendants agreed, always verbally, as a
seeking to recover all through thus dealings with consideration therefor, to reconvey to him the
defendants and to obtain which he claims he properties remaining, but each time refused to
had suffered so much. Having secured before do so and proceeded, after each such
this action was begun precisely what defendants conveyance, to a fresh extortion. It is contended
had promised him and the very thing he sought, that plaintiff, by not incorporating the verbal
there remains nothing further to be said or done agreement to reconvey in the instrument itself,
in that connection. Certainly the repurchase of placed himself in a disadvantageous position;
the properties which he so much desired was and that he executed and delivered the
not procured by fraud or deceit; and it was a subsequent conveyances for the purpose of
complete termination of the relations existing extricating himself from the unfortunate situation
between the parties arising out of the properties so produced. The ultimate extortion, the
which he claimed were sold with a right to payment of P6,800 to recover the remaining
repurchase. After having obtained the very thing properties, was the last penalty which he paid
he desired and having done so in a manner for his mistake in not incorporating the verbal
which he deemed best and most suitable under agreement in the conveyance itself.
the circumstances, did he not thereby terminate
all relations between himself and defendants All men are presumed to be sane and normal
with respect to, or growing out of those and subject to be moved by substantially the
properties, and can he nor repudiate not only the same motives. When of age and sane, they
transaction by which he recovered them but also must take care of themselves. In their relation
every other transaction which he claims related with others in the business of life, wits, sense,
thereto? It is incomprehensible, from a legal intelligence, training, ability and judgment meet
point of view, that plaintiff, having been deprived and clash and contest, sometimes with gain and
of property by fraud and deceit, may recover that advantage to all, sometimes to a few only, with
property through a voluntary agreement loss and injury to others. In these contests men
between him and those who deceived and must depend upon themselves upon their
defrauded him, and then repudiate not only the own abilities, talents, training, sense, acument,
transaction in which he was defrauded of that judgment. The fact that one may be worsted by
property but also the very transaction by which another, of itself, furnishes no cause of
he recovered it. complaint. One man cannot complain because
another is more able, or better trained, or has
Dealing with the case from the standpoint of better sense of judgment than he has; and when
intimidation, it should be noted of March 22, the two meet on a fair field the inferior cannot
1909, was obtained in that form by force or murmur if the battle goes against him. The law
thereat. The validity of that conveyance is furnishes no protection to the inferior simply
admitted; as is also the fact that the verbal because he is inferior, any more than it protects
agreement to reconvey was omitted from the the strong because he is strong. The law
conveyance knowingly. The claim is simply that furnishes protection to both alike to one or
there was a verbal agreement to reconvey on more or less than to the other. It makes no
the repayment of the consideration named in the distinction between the wise and the foolish, the
instrument and that defendants made use of the great and the small, the strong and the weak.
fact that the agreement was verbal and, The foolish may lose all they have to the wise;
therefore, difficult to prove, as clever by which but that does not mean that the law will give it
they forced him to convey to them additional back to them again. Courts cannot follow one
properties before they would comply with the every step of his life and extricate him from bad
verbal agreement. According to plaintiff's bargains, protect him from unwise investments,
contention, then, each one of the conveyances relieve him from one-sided contracts, or annul
between him and defendants subsequent to the the effects of foolish acts. Courts cannot
original conveyance was an extortion, using that constitute themselves guardians of persons who


are not legally incompetent. Courts operate not payment made pursuant to such demand is not
because one person has been defeated or necessarily voidable. He pays for his lack of
overcome by another, but because he has been foresight. While the demand may be
defeated or overcome illegally. Men may do reprehensible morally, it is not illegal' and of
foolish things, make ridiculous contracts, use itself is not ground for relief.
miserable judgment, and lose money by them
indeed, all they have in the world; but not for that There must, then, be a distinction to be made
alone can the law intervene and restore. There between a case where a person gives his
must be, in addition, a violation of law, the consent reluctantly and even against his good
commission of what the law knows as an sense and judgment, and where he, in reality,
actionable wrong, before the courts are gives no consent at all, as where he executes a
authorized to lay hold of the situation and contract or performs an act against his will under
remedy it. a pressure which he cannot resist. It is clear that
one acts as voluntarily and independently in the
Furthermore, even if an actionable wrong be eye of the law when he acts reluctantly and with
committed in such manner as to authorize the hesitation as when he acts spontaneously and
courts to intervene, the person injured may joyously. Legally speaking he acts as voluntarily
renounce his right to take the matter to the and freely when he acts wholly against his better
courts and may compromise with the wrong- sense and judgment as when he acts in
doer. Or, having been placed in a very conformity with them. Between the two acts
disadvantageous position by the wrong there is no difference in law. But when his
committed against him, he may be offered by his sense, judgment, and his will rebel and he
adversary one or more avenues of escape. He refuses absolutely to act as requested, but is
may be required to lose more property to his nevertheless overcome by force or intimidation
enemy or go to the courts for redress. In such to such an extent that he becomes a mere
case the payment of an additional sum as a automation and acts mechanically only, a new
means of escape is not necessarily a payment element enters, namely, a disappearance of the
voidable for duress. The act was preceeded by personality of the actor. He ceases to exist as an
an exercise of judgment. This much was plain to independent entity with faculties and judgment,
him: he had either to let the matter stand as it and in his place is substituted another the
was with the loss already sustained, or go to the one exercising the force or making use of
courts to be relieved. His judgment, operating intimidation. While his hand signs, the will which
upon this condition, told him to pay the moves it is another's. While a contract is made,
additional sum rather than to suffer the it has, in reality and in law, only one party to it;
inconvenience and expense of an action in and, there being only one party, the one using
court. A payment made under such conditions is the force or the intimidation, it is unenforceable
not voidable. It is the voluntary act of a sane and for lack of a second party.
mature man performed upon reflection. Not only
this; it is a compromise of the original wrong and From these considerations it is clear that every
a ratification of the relation which the wrongful case of alleged intimidation must be examined
act was intended to establish between the to determine within which class it falls. If it is
parties. within the first class it is not duress in law, if it
falls in the second, it is.
The same may be said with greater force of a
case where a person's own voluntary act, But into whichever class it falls the party coerced
uninfluenced by another, has put him in a may, as we have seen, waive his right to annul
disadvantageous position a position which the contract and to recover damages. He may
another may unjustly make use of to his injury. do this expressly or impliedly. He may expressly
The failure to reduce a contract to writing, or to accept the agreement as it stands, or in a
have witnesses present when a verbal modified from, and live up to it as thus accepted.
agreement is made, or to record an instrument, Or, he may compromise by paying something to
or to exclude from the operation of its terms be relieved from its effects or to have its terms
things verbally agreed to be excluded, etc., may changed. Or, he may accept benefits under the
place a person in a disadvantageous position contract. In any one of which cases, and there
with respect to another; and the demand that he are others not now necessary to mention, he
pay to secure his extrication is not illegal, and a renounces and waives his defense of


intimidation and thereby eliminates that element Is there a conclusive presumption under civil
as one having any influence on the case procedure?
thereafter.
Yes. Under the Sec. 48 and 49 of Rule 39 (Res
Taking the case as a whole, we are therefore of Judicata)
the opinion that there was no intimidation and
that, if there was, the plaintiff has placed himself If a judgment is not yet executory/final, can
in a position where he was not entitled to urge it there be a presumption of regularity?
as a defense.
YES there is a disputable presumption of
NOTE: You must discuss what disputable correctness of judgment.
presumptions were used in the case.
How can this be rebutted?
What are the conclusive presumptions under
the Rules of Court? Upon appeal, ASSIGNMENT OF ERRORS.
1. Whenever a party has, by his own PRESENTATION OF EVIDENCE

declaration, act, or omission,
intentionally and deliberately led another US vs. Baluyot
to believe a particular thing is true, and
to act upon such belief, he cannot, in At the general election which was held on June
any litigation arising out of such 6, 1916, Conrado Lerma was elected governor
declaration, act or omission, be of the Province of Bataan. One of his
permitted to falsify it. competitors upon this occasion was the
2. The tenant is not permitted to deny the accused, Jose I. Baluyot, who came out third in
title of his landlord at the time of the the race. As a result of this contest a feeling of
commencement of the relation of personal rancor was developed in the mind of
landlord and tenant between them. Baluyot against his successful competitor, and
during the two years which followed the accused
Is the enumeration of conclusive became fully imbued with the idea that Governor
presumptions exclusive? Lerma was persecuting him. Because of this,
Baluyot killed Gov. Lerma.
No. There are many conclusive presumptions
found in substantive and other procedural laws. During the trial of the case, it appears that after
For example, ignorance of the law excuses no the witnesses had been examined in court for
one from compliance therewith. Another is the the prosecution, they were turned over to the
conclusive presumeption of non-filiation in DNA attorney for the accused and were by him fully
cases. cross-examined. Later, when the giving of
testimony for the prosecution had been
Review Tijam vs. Sibonghanoy. What were concluded, the defense proceeded to introduce
the conclusive presumptions applied in the sundry witnesses who were examined in due
case? course. After four had thus testified, and
immediately before the accused was placed
Estoppel in pais after heavily participating in the upon the stand in his own behalf, his attorney
case knowing that that the court had no made the request that the declarations or
jurisdiction to try the same. statements made by the witnesses during the
preliminary inquiry conducted by the fiscal
Give example of estoppel in pais. preparatory to the prosecution of the case
should be produced. The attorney for the
Note: give an example aside from Tijam prosecution objected on the ground that one
party cannot be compelled to produced evidence
in favor of the other.
Issue: WON the prosecution may be compelled

to produce such declarations and statements


made by the witnesses in a preliminary inquiry get before the court contradictory statements
made by the fiscal. made by a witness who is testifying for the
adversary party. For instance, if the attorney for
Held: No. They were not original or independent the accused had information that a certain
evidence of such a character as to give the witness, say Pedro Gonzales, had made and
accused an unqualified right to compel their signed a sworn statement before the fiscal
production, and no proper basis was laid in the materially different from that given in his
cross-examination of the witnesses who had testimony before the court, it was incumbent
made those statements to justify their production upon the attorney when cross-examining said
with a view to the impeachment of the witness to direct his attention to the discrepancy
declarants. The request was of course based and to ask him if he did not make such and such
upon the supposition or expectation that if the statement before the fiscal or if he did not there
statements of the witnesses before the fiscal make a statement different from that delivered in
were produced, they might be found to contain court. If the witness admits the making of such
something different from what was contained in contradictory statement, the accused has the
their testimony given in court. benefit of the admission, while the witness has
the opportunity to explain the discrepancy, if he
We know of no rule of practice which sustains can. On the other hand, if the witness denies
the contention of the appellant. The statements making any such contradictory statement, the
in question were not the sworn declarations of accused has the right to prove that the witness
witnesses taken in conformity with the did make such statement; and if the fiscal should
requirements of section 13 of General Orders, refuse upon due notice to produce the
No 58, and which are commonly attached to the document, secondary evidence of the contents
"expediente" transmitted by the committing thereof would be admissible. This process of
magistrate to the Court of First Instance. In the cross-examining a witness upon the point of
case at bar the preliminary examination before prior contradictory statements is called in the
the committing magistrate was waived by the practice of the American courts "laying a
accused, and the declarations of the witnesses predicate" for the introduction of contradictory
for the prosecution were therefore not taken statements. It is almost universally accepted that
before the magistrate. The declarations referred unless a ground is thus laid upon cross-
to were, on the contrary, taken in an examination, evidence of contradictory
investigation conducted by the fiscal under the statements are not admissible to impeach a
authority of section 1687 of the Administrative witness; though undoubtedly the matter is to a
Code. This section authorizes the fiscal, if he large extent in the discretion of the court.
deems it wise, to conduct an investigation into
the matter of any crime or misdemeanor for the We wish to add that in a case of this kind, if the
purpose of instituting or carrying on a criminal accused had, by affidavit or otherwise, made it
prosecution. It is expressly declared that this appear to the satisfaction of the court that the
section shall not be construed to authorize a witnesses named had made statements in their
provincial fiscal to act as a justice of the peace declarations before the fiscal materially at
in any preliminary investigation. The proceeding variance with their statements in court and that
here contemplated is of an administrative the production of said declarations was
character, and the information thereby acquired necessary or even desirable, in the interests of
is intended for the use of the fiscal in the justice, the court would have had ample power
conduct of the prosecution. Such declarations to order their production. No such showing, or
therefore pertain to the official file in the office of intimation, was made in this case; and the
the public prosecutor and are not subject to attorney who made the motion was merely
production at the mere request of the attorney angling at random to discover something that
for the accused where no ground therefor had might prove to be favorable to his client. To put
been laid Qrb4Fxm. a court in error for refusing to entertain such a
motion would encourage frivolous delays and
In order that we may not be misunderstood, as tend to embarrass the speedy and proper
well as for the purpose of clarifying the practice administration of justice.
in such matters, a few words may here by
properly said in respect to the proper mode of
proceeding in a case where a party wishes to


Under the existing rules, can the accused What is a misleading question?
compel the production of the said evidence
to be used in his favor? A misleading question is one which assumes as
true a fact not yet testified to by the witness, or
(Pwede: Right under the Constitution - Right of contrary to that which he has previously stated.
Compulsory process); See Rule 112, Sec. 7(b)
Why is a leading question is disallowed in
How can an accused seek the production of direct? Why is it allowed in cross?
evidence in court?
Leading questions are disallowed in direct
Rule 116, Sec. 10: Upon motion of the accused examination because the Rules need to avoid
showing good cause and with notice to the coaching the witness.
parties, the court, in order to prevent surprise,
suppression, or alteration, may order the In cross, the witness is expected to be hostile to
prosecution to produce and permit the the cross-examiner. OPINION: Again, remember
inspection and copying or photographing of any the purpose of cross, hence, the cross-examiner
written statement given by the complainant and is allowed to lead the witness or to suggest to
other witnesses in any investigation of the the latter the answer the former desires in order
offense conducted by the prosecution or other to test whether the witness is consistent with his
investigating officers, as well as any designated statement. However, the direct examiner, not
documents, documents, papers, books, being adverse to the witness, must refrain from
accounts, letters, photographs, objects, or leading his witness. The direct examiner must
tangible things not otherwise privileged, which show that the witness knows what he is saying
constitute or contain evidence material to any not as suggested by the direct examiner.
matter involved in the case and which are in the
possession or under the control of the Example of leading question (Trial Court setting)
prosecution, police, or other law investigating
agencies. The Scope of Cross-examination?
How do you lay the predicate? English Rule: where a witness is called to testify
to a particular fact, he becomes a witness for all
By calling the attention of the witness to the purposes and may be fully cross-examined upon
former contradicting statement. If the statement all matters material to the issue, the examination
be in writing they must be shown to the witness not being confined to the matters inquired about
before any question is put to him. in the direct examination.
What if the witness states that he does not American Rule: restricts cross-examination to
remember? Or what if he denies making the facts and circumstances which are connected
said statements? with the matters that have been stated in the
direct examination of the witness.
Offer the said evidence as an extrajudicial
admission (Regalado, citing Juan Ysmael & Co What rule do we follow here?
vs. Hashim, 50 Phil 132).
It depends on the witness and the nature of the
What is a leading question? case being heard. If the witness is an accused in
the criminal case, he/she may only be cross
A leading question is one that is framed in such examined on matters discussed in the direct
a way that the question indicates to the witness examination.
the answer desired by the party asking the
question. It is a question which suggests to the Can an accused who testifies on his on
witness the answer which the examining party behalf, be examined using strictly the
desires. American Rule?
YES, otherwise his right against self-

incrimination may be violated.


If the opponent decides not to conduct a OFFER OF EVIDENCE
cross-examination on the witness, will that
be prejudicial to the clients cause? Can a How do you offer an evidence?
cross-examination cause prejudice to a
client? 1. The court shall consider no evidence
which has not been formally offered.
The BOSTON LEGAL Rule: Kapag walang na- The purpose for which the evidence is
establish sa direct, do not cross examine. Baka offered must be specified.
kapag nagcross-examination ka e madale ka at 2. As regards the testimony of a witness,
maestablish ang claim ng kalaban mo. the offer must be made at the time the
witness is called to testify.
What is the Rule on Revival of past 3. Documentary and object evidence shall
recollection/present memory? be offered after the presentation of a
partys testimonial evidence. Such offer
1. A witness may be allowed to refresh his shall be done orally unless allowed by
memory respecting a fact, by anything the court to be done in writing.
written or recorded by himself or under
his direction at the time when the fact Procedural steps?
occurred, or immediately thereafter, or
at any other time when the fact was For testimonial evidence, just follow the codal
fresh in his memory and he knew that procedure.
the same was correctly written or
recorded; but in such case the writing For documentary or object evidence:
the writing or record must be produced
and may be inspected by the adverse 1. Call upon the witness;
party who may, if he chooses, cross- 2. Qualify the witness;
examine the witness upon it, and may 3. Ask the witness preliminary questions;
read it in evidence. 4. Present evidence to witness and ask
2. A witness may testify from such a him to authenticate/identify the evidence
writing or record, though he retain no if necessary;
recollection of the particular facts,if he is 5. Mark the evidence as an exhibit.
able to swear that the writing or record 6. After all the witnesses have testified,
correctly stated the transaction when offer the exhibits in court, identifying
made; but such evidence must be each of them, and stating their purpose.
received with caution.
Challenging the qualification of a witness?
Are we to assume every time that a
memorandum is available for reference? Through voi dire examination.
Opinion: No. The same must be presented in Should you allow the witness to testify first
court. before you disqualify him?
The memorandum from which the witness may No there are instances where a witness before
be permitted to refresh his memory need NOT he can be allowed to testify, may be disallowed
be an original writing. It is sufficient if it is shown to testify.
that the witness knows the copy to be a true
one, and his memory refreshed thereby enables Absolute disqualifications?
him to testify from his own recollection of the
facts, independent of his confidence in the Those witnesses not identified in the pre-trial
accuracy of the copy. brief. Are they disqualified?
Generally, YES.


If the witness is excluded prior to testifying, During the trial, the plaintiff, having been placed
what is the remedy? on the stand as a witness by his on attorney,
testified at length and answered all the
The Court may be liberal. Kausapin mo lang questions asked him with respect to the said
daw sabi ni Jara (in reference to Phoenix vs. contract, the details of the same, the persons
Pratts). who witnessed it, the place where it was made,
and various other circumstances connected with
If the witness is allowed to testify, questions its execution. These questions and answers
will be asked. In the course of propounding cover six pages of the record, and yet the
questions, there are certain objectionable defendants' counsel raised no objection to the
questions. How do you classify objections? examination, aside from challenging one of the
(General/Specific). Distinguish. questions as leading and another of them as
irrelevant. It seems that only when the
General Objection It does not go beyond examination was terminated did counsel for
declaring the evidence as immaterial, defendants move to strike out all of the
incompetent, irrelevant or inadmissible. In other testimony given and statements made by
words, it does not specify the grounds for plaintiff in regard to the contract, on the ground
objection. (Also known as a Broadside that the period for the fulfillment of the contract
Objection) exceeded one year and that it could not be
proven except by means of a written instrument.
Specific Objection It states why or how the Issue: WON the statements may be stricken out
evidence is irrelevant or incompetent. E.g. despite not being objected to during the
Objection to the question for being leading. examination of the witness.
Formal Objection is one directed against the Held: No. Now then, it has been repeatedly laid
alleged defect in the formulation of the question. down as a rule of evidence that a protest or
E.g. ambiguous question objection against the admission of any evidence
must be made at the proper time, and that if not
Substantive Objection objections made and so made it will be understood to have been
directed against the very nature of the evidence, waived. The proper time to make a protest or
i.e., it is inadmissible either because it is objection is when, from the question addressed
irrelevant or incompetent or both. e.g. parol, to the witness, or from the answer thereto, or
hearsay evidence from the presentation of the proof, the
inadmissiblity of the evidence is, or may be,
What if there is a failure to object, can the inferred.
court prohibit the witness from answering
the question? A motion to strike out parol or documentary
evidence from the record is useless and
Yes. If it involves an infringement of the right of ineffective if made without timely protest,
the witness. objection, or opposition on the part of the party
against whom it was presented.
Abrenica vs. Gonda
Objection to the introduction of evidence should
These proceedings were brought by the plaintiff be made before the question is answered. When
to compel the defendant to return to him the two no such objection is made, a motion to strike out
parcels of land described in the complaint which the answer ordinarily comes too late. (De Dios
he alleges were sold by him under right of Chua Soco vs. Veloso, 2 Phil. Rep., 658).
repurchase to the defendant on February 21,
1916, for the sum of P75 and for the period of The fact that the defendants' counsel asked
seven years. The plaintiff alleged that the various cross-questions, both of the plaintiff and
defendant refused to deliver said property to him of the other witness, in connection with the
when, upon the expiration of the period answers given by them in their direct
mentioned, he endeavored to redeem the same examination, with respect to particulars
and tendered payment to the defendant of the concerning the contract, implies a waiver on his
sum aforesaid. part to have the evidence stricken out.


It is true that, before cross-examining the plaintiff occurrence and that the further hearing of the
and one of the witnesses, this same counsel case be postponed. Two days afterward the
requested the permission of the court, and clerk entered in his record as recital of the
stipulated that his clients' rights should not be incident substantially as above, and also a
prejudiced by the answers to those witnesses in statement that on other and prior occasions the
view of the motion presented to strike out their attorney, Marcelino Aguas, had been wanting in
testimony; buy this stipulation of the defendants' respect to the court by making use of "improper
counsel has no value or importance whatever, phrases," and by interrupting opposing counsel
because, if the answers of those witnesses were in their examination of witnesses. The court on
stricken out, the cross-examination could have this record adjudged the attorney to be in
no object whatsoever, and if the questions were contempt of court and suspended him from the
put to the witnesses and answered by them, practice of his profession for a period of twenty
they could only be taken into account by days.
connecting them with the answers given by
those witnesses on direct examination Issue: WON the counsel may be cited in
contempt of court.
As no timely objection or protest was made to
the admission of the testimony of the plaintiff Held: No. In our opinion the action of the judge
with respect to the contract; and as the motion to in seizing the witness, Alberto Angel, by the
strike out said evidence came to late; and, shoulder and turning him about was
furthermore, as the defendants themselves, by unwarranted and an interference with that
the cross-questions put by their counsel for the freedom from unlawful personal violence to
witnesses in respect to said contract, tacitly which every witness is entitled while giving
waived their right to have it stricken out, that testimony in a court of justice. Against such
evidence, therefore, cannot be considered either conduct the appellant had the right to protest
inadmissible or illegal, and court, far from having and to demand were respectfully made and with
erred in taking it into consideration and basing due regard for the dignity of the court. The only
his judgment thereon, notwithstanding the fact question, therefore in this case is, Was the
that it was ordered to be stricken out during the appellant respectful and regardful of the court's
trial, merely corrected the error he committed in dignity in presenting his objection and asking
ordering it to be so stricken out and complied that it be recorded in the proceedings? The
with the rules of procedure hereinbefore cited. witnesses say and the judge finds that "his
attitude was menacing" (bastante amenazadora)
In Re Aguas? in the moment of making his protest, but beyond
that there is nothing in the record which even
It appears from the record in this matter that on tends to show that he was disrespectful to the
the 29th of August, 1900, during the progress of court or unmindful of its dignity. In our opinion
a trial then being held before the Court of First both testimony and finding state a mere
Instance at Bacolor, in the Province of conclusion which, in the absence of the facts
Pampanga, the court had occasion to caution from which it was deduced, is wholly valueless
Angel Alberto, a witness in the case, not to look to support a judgment of contempt. The
at the attorney for the defendant but to fix his statement that the attorney's attitude was
attention on the judge who was at the time "menacing" tended no more to competently
examining him. It seems that the witness did not establish the alleged offense of contempt than if
give heed to this warning, and the judge the witnesses had testified and the court had
thereupon arose from his seat and approaching found that his conduct was "contemptuous or
the witness, seized him by the shoulders, and lacking in respect." The specific act from which it
using the expression, "Lingon ang mucha" was inferred that his attitude was menacing
("Look at me"), either shook him, as insisted by should have been testified to by the witnesses
the attorney for the defendant, or only turned and found by the court, and failing that, the
him about, as claimed by the judge and others. record does not show concrete facts sufficient to
Whether the witness was shaken or only turned justify the conclusion that he was disrespectful
about, at all events "seizing him," brought the to the court or offensive to its dignity.
defendant's attorney to his feet, who, protesting
against the action of the judge as coercive of the
witness, demanded that a record be made of the


US vs. Baluyot? in question were not the sworn declarations of
witnesses taken in conformity with the
At the general election which was held on June requirements of section 13 of General Orders,
6, 1916, Conrado Lerma was elected governor No 58, and which are commonly attached to the
of the Province of Bataan. One of his "expediente" transmitted by the committing
competitors upon this occasion was the magistrate to the Court of First Instance. In the
accused, Jose I. Baluyot, who came out third in case at bar the preliminary examination before
the race. As a result of this contest a feeling of the committing magistrate was waived by the
personal rancor was developed in the mind of accused, and the declarations of the witnesses
Baluyot against his successful competitor, and for the prosecution were therefore not taken
during the two years which followed the accused before the magistrate. The declarations referred
became fully imbued with the idea that Governor to were, on the contrary, taken in an
Lerma was persecuting him. Because of this, investigation conducted by the fiscal under the
Baluyot killed Gov. Lerma. authority of section 1687 of the Administrative
Code. This section authorizes the fiscal, if he
During the trial of the case, it appears that after deems it wise, to conduct an investigation into
the witnesses had been examined in court for the matter of any crime or misdemeanor for the
the prosecution, they were turned over to the purpose of instituting or carrying on a criminal
attorney for the accused and were by him fully prosecution. It is expressly declared that this
cross-examined. Later, when the giving of section shall not be construed to authorize a
testimony for the prosecution had been provincial fiscal to act as a justice of the peace
concluded, the defense proceeded to introduce in any preliminary investigation. The proceeding
sundry witnesses who were examined in due here contemplated is of an administrative
course. After four had thus testified, and character, and the information thereby acquired
immediately before the accused was placed is intended for the use of the fiscal in the
upon the stand in his own behalf, his attorney conduct of the prosecution. Such declarations
made the request that the declarations or therefore pertain to the official file in the office of
statements made by the witnesses during the the public prosecutor and are not subject to
preliminary inquiry conducted by the fiscal production at the mere request of the attorney
preparatory to the prosecution of the case for the accused where no ground therefor had
should be produced. The attorney for the been laid Qrb4Fxm.
prosecution objected on the ground that one
party cannot be compelled to produced evidence In order that we may not be misunderstood, as
in favor of the other. well as for the purpose of clarifying the practice
in such matters, a few words may here by
Issue: WON the prosecution may be compelled properly said in respect to the proper mode of
to produce such declarations and statements proceeding in a case where a party wishes to
made by the witnesses in a preliminary inquiry get before the court contradictory statements
made by the fiscal. made by a witness who is testifying for the
adversary party. For instance, if the attorney for
Held: No. They were not original or independent the accused had information that a certain
evidence of such a character as to give the witness, say Pedro Gonzales, had made and
accused an unqualified right to compel their signed a sworn statement before the fiscal
production, and no proper basis was laid in the materially different from that given in his
cross-examination of the witnesses who had testimony before the court, it was incumbent
made those statements to justify their production upon the attorney when cross-examining said
with a view to the impeachment of the witness to direct his attention to the discrepancy
declarants. The request was of course based and to ask him if he did not make such and such
upon the supposition or expectation that if the statement before the fiscal or if he did not there
statements of the witnesses before the fiscal make a statement different from that delivered in
were produced, they might be found to contain court. If the witness admits the making of such
something different from what was contained in contradictory statement, the accused has the
their testimony given in court. benefit of the admission, while the witness has
the opportunity to explain the discrepancy, if he
We know of no rule of practice which sustains can. On the other hand, if the witness denies
the contention of the appellant. The statements making any such contradictory statement, the


accused has the right to prove that the witness Impeachment of a witness via contradictory
did make such statement; and if the fiscal should evidence. How is this done?
refuse upon due notice to produce the
document, secondary evidence of the contents See Illustration made by Riano on page 325.
thereof would be admissible. This process of
cross-examining a witness upon the point of In case of dying declarations, can you
prior contradictory statements is called in the impeach the declaration of a deceased?
practice of the American courts "laying a
predicate" for the introduction of contradictory You can now use the adverse character of the
statements. It is almost universally accepted that deceased declarant in impeaching the said
unless a ground is thus laid upon cross- testimony.
examination, evidence of contradictory
statements are not admissible to impeach a Is the impeachment limited on the person on
witness; though undoubtedly the matter is to a the stand?
large extent in the discretion of the court.
No.
We wish to add that in a case of this kind, if the
accused had, by affidavit or otherwise, made it Rule on Evidence on Motions
appear to the satisfaction of the court that the
witnesses named had made statements in their When a motion is based on facts not appearing
declarations before the fiscal materially at of record, the court may hear the matter on
variance with their statements in court and that affidavits or depositions presented by the
the production of said declarations was respective parties, but the court may direct that
necessary or even desirable, in the interests of the matter be heard wholly or partly on oral
justice, the court would have had ample power testimony or depositions.
to order their production. No such showing, or
intimation, was made in this case; and the Is there a need to present evidence when one
attorney who made the motion was merely files a motion? How?
angling at random to discover something that
might prove to be favorable to his client. To put Yes. Attach the evidence on the motions.
a court in error for refusing to entertain such a
motion would encourage frivolous delays and Is there a motion that requires a full blown
tend to embarrass the speedy and proper hearing and presentation of evidence?
administration of justice.
BAIL (Evidence of Guilt is strong quantum of
What is the effect when there are proof)
inconsistencies between a witness affidavit
and his testimony in open court? How about in a civil case?
Discrepancies and/or inconsistencies between a In cases of injunction

witness affidavit and testimony in open court do
not impair credibility as affidavits are taken ex QUANTUM OF PROOF
parte and are open incomplete or inaccurate for
lack or absence of searching inquiries by the Proof Beyond Reasonable Doubt
investigating officer. The general rule that
contradictions and discrepancies between the It does not mean such degree of proof as,
testimony of a witness and his statements in an excluding possibility of error, produces absolute
affidavit do not necessarily discredit him is not certainty. Moral certainty only is required, or that
without exception, as when the omission in the degree of proof which produces conviction in an
affidavit refers to a very important detail of the unprejudiced mind.
incident that one relating to the incident as an
eyewitness would not be expected to fail to Clear and Convincing
mention, or when the narration in the sworn
statement substantially contradicts the testimony That degree of proof which will produce in the
in court (Edwin Tabao v. People, G.R. No. mind of the trier of facts a firm belief or
187246).


conviction as to the allegations sought to be Are there Court cases that only require
established. substantial evidence?
Is there a definition given in the Rules? Yes. AMPARO. HABEAS DATA. KALIKASAN.
(Jara: do not make the mistake in stating that
No. such quantum of proof is defined by substantial evidence is only available in
jurisprudence. administrative and quasi-judicial cases.
When do we use this?
In extradition proceedings and other cases as

may be defined by jurisprudence.
Preponderance of Evidence?
That which is of greater weight or more

convincing than that which is offered in
opposition to it.
Substantial evidence
That amount of relevant evidence which a

reasonable mind might accept as adequate to
justify a conclusion.
You always expect the mind of the judge to

be reasonable right?
Yes. Presumption of regularity of official

functions.
What is the concept of Demeanor Evidence?
Whenever a witness testifies in court, the judge

may be allowed to determine his credibility by
observing his demeanor while he is testifying in
court.
What is the importance of demeanor

evidence as far as the appellate court is
concerned?
NONE. Appellate courts are not in a position to

observe the demeanor of a witness.
Nevertheless, it does not preclude them from
entertaining questions of fact (opinion lang po).
Quasi Judicial bodies are given authority to

make rules of procedure right? Are they
allowed to make rules as to the quantum of
evidence that may be used in their
proceedings?
No. Quantum of proof is always determined by

the Courts. Sec. 5 Art.VIII of the Constitution is
controlling.

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2011-

PRELIMINARY MATTERS It refers to a denial of the material facts or facts

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A prosecutor files in the court an information How about in Quasi-Judicial Proceedings?

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1. Object: evidence that is directly What are the Axioms of Admissibility?

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YES. Rule 10, Sec. 5.

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No. Held: Yes. In the course of long experience we

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What is Object Evidence?

Objects as evidence are those addressed to the

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GENERAL RULE: When the terms of an STEPS:

What is Parol Evidence? Distinguish Parol Evidence rule from the

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(b) The guardian ad litem: (1) Shall attend all

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What is a self-serving statement? Doctrine: The Angara diary is admissible in

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To whom is post-conviction DNA testing What are the things to be considered in

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In post-conviction DNA testing, what does Can a documentary evidence be hearsay?

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YES, provided that: What is the legal maxim that is usually

The declaration of a dying person, made under Requisites:

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Sec. 39 Sec. 40 Statements made by a person while a startling

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Are there any exceptions? In Daubert v. Merrell Dow Pharmaceuticals, Inc.,

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Are the said standards important in our (b) In Civil Cases:

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