TESTIMONIAL EVIDENCE

1. Testimonial or oral evidence is evidence elicited from the mouth of witness as

distinguished from real and documentary evidence.1 It is sometimes called viva voce
evidence which literally means “living voice” or by word of mouth. In this kind of
evidence, a human being is called to the stand, is asked question, and answer question
asked of him. The person who gives the testimony is called a witness.

2. Recall that competent evidence means evidence that is not excluded by the law or rules.
It, therefore, means the eligibility of an evidence to be admitted by the court. When
applied to a witness, competence means that the witness is qualified to take the stand and
testify. It means that he fit or eligible to testify on particular matter in a judicial
proceeding.

If a witness cannot perceive or even he can perceive but he cannot remember he has
perceived, he is incompetent to testify. If he has no personal knowledge of an event the
truth of which he wants to prove, he has also incompetent to testify. Competence of a
witness, therefore, refers to his personal qualifications to testify. Competence also
includes the absence of any factor that would disqualify him from being a witness.

3. Experience and plain observation will tell us that the presentation and introduction
Of every kind of evidence, whether it be object, demonstrative or documentary evidence,
need the intervention of the witness. The admission of any evidence requires its
identification by a witness. It is legal truth that identification proceeds authentication.
Without a witness, no evidence can ever be authenticated. Even the so-called “self-
authenticating documents” need a witness to identify the document. The reason is simple.
Being inanimate, a document or an object cannot speak for itself.

1
Black’s law Dictionary, 5th Ed.,p 1323

1
 1. QUALIFICATIONS OF A WITNESS

1. As to the qualifications of a witness, Rule 130 of the Rules of Court provides:

Sec. 20 “Witnesses; their qualifications.--- Except as
provided in the next succeeding section, all persons who
can perceive, and perceiving, can make known their
perception to others, may be witnesses.
Religious of political belief, interest in the outcome of
the case, or conviction of a crime unless otherwise
provided by law, shall not be a ground for
disqualification.”

2. The above provision supplies the basic qualifications of a witness, namely:

(a) He can perceive; and
(b) He can make known his perception to others.
To these, we may add the following:
(a) He must take either an oath or an affirmation;2 and
(b) He must not possess any of the disqualifications imposed by law of the
rules.

Oath or affirmation

1. While the taking of an oath or of an affirmation is either rarely mentioned and

merely glossed over by commentators in discussing the qualifications of a witness
to take the stand, the rule clearly requires that the examination of a witness in a
trial or hearing shall be done x x x under oath or affirmation.3 The willingness to
take an oath or affirmation is an essential qualification of a witness. No court
would and should allow the testimony of someone who desires to testify but
refuses to swear or make an affirmation.

2. A person is not qualified to be a witness if he is incapable of understanding the

duty to tell the truth. An oath or affirmation is necessary for the witness to
recognize the duty to the truth. The oath of a witness signifies that he is swearing
to the Creator “to tell the truth and nothing but the truth” and that if he does not,
he will later on answer for all the lies he is guilty of. Of course, in the early stages
of legal history, this was concededly the underlying reason for requiring an oath
before a witness testifies. In modern times, this reason may have been obscured
by a universal shift in moral values but the oath is, nevertheless, required, as a

2
Sec. 1, Rule 132, Rules of Court
3
Ibid.

2
 rule, even if, too many, the oath appears merely to be a pious incantation or a
meaningless ritual which must simply be done to be allowed to testify.

3. The issue which a judge must resolve before the witness the witness is allowed to
take the stand is whether the witness understands the nature of an oath, realizes
the moral duty to tell the truth, and understands the prospects of being punished
for a falsehood. This understanding is not necessarily inferred from the age of the
witness. One American case4 ruled that it is not required that the understanding of
the importance of an oath be a detailed one. It is enough that the witness
understands and believes that some earthly evil will occur to him for lying.

4. Not all may want to take an oath for reasons of religion or the lack of it. Thus, the
rule in this jurisdiction affords the courts to flexibility to deal with those who
refuse to being sworn by requiring the witness to make an affirmation instead.
Consider this hypothetical:
Suppose that the prosecution calls a witness and offers his testimony to
prove that it was indeed the accused who ran over the victim with a car. Here goes
the brief exchange between the bailiff or appropriate court personnel and the
supposed witness:
“Sir, please raise your right hand.”
The supposed witness retorts: “For what?”
The bailiff snaps: “You are going to be sworn before you testify, Sir.”
“No! I will not!”
“Do you instead want to make an affirmation?”
“I won’t do that either!”
The next most probable scenario is of the court dismissing the proposed
witness. Most likely, that person will not be allowed to testify. This is because he
failed to meet the oath or affirmation requirement.

Ability to perceive
A witness must be able to perceive an event. Thus, it will be absurd to ask a
blind man what he saw or a deaf person what he heard. Corollary to this capacity to
perceive is the requirement that the witness must have personal knowledge of the facts
surrounding the subject matter of his testimony. Sec. 36 of Rule 130 explicitly requires
that a witness can testify only to those facts which he knows of his personal knowledge,
i.e., those which are derived from his own perception. When the witness takes an oath or
an affirmation to tell the truth, he cannot live up to that oath or affirmation without his

4
People V. Berry [1968], 260 CA2d 649, 67 CR 312

3
ability to show that his testimony is based on his personal knowledge. Without this
personal knowledge, the witness lacks the competence to testify. To illustrate:

A witness is called to testify in defamation suit for alleged defamatory

acts committed against the offended party on March 27, 2015 in the
corner of XYZ and ABC Sts. In Manila, he willingly took the oath.
Q: Sir, where were on the 27th of March 2015 at around 7:30 in the
evening?

A: I was in Israel, Sir, for a pilgrimage.

Obviously, the witness will be dismissed from the stand. The court has no
use of him. He is incompetent for the purpose for which he was called. While taking the
oath enabled him to meet the first requirement for competency, he miserably failed the
next test. He did not perceive anything about the incident and could offer no facts about
the incident based on his personal knowledge.

Ability to make known the perception to others

1. The ability of the witness to make known his perception to the court involves two
factors: (a) ability to remember what has been perceived; and (b) ability to
communicate the remembered perception. Consider a witness who has taken the
oath and has personal knowledge of the event on which he is going to testify.
Imagine the exchange that follows the court room:
Q: What incident, if any, occurred… etc… etc…
A: Sorry, sir. I… can’t recall… I don’t remember.
It is of common reason to realize that a witness is presented to testify on a
matter he has perceived. If he cannot remember what he perceived, he cannot be a
competent witness.

2. Deaf-mutes are not necessarily incompetent as witnesses. They are competent

where they can: (1) understand and appreciate the sanctity of an oath; (2)
comprehend facts they are going to testify to; and (3) communicate their ideas
through a qualified interpreter.5

5
People v. Tuangco, 345 SCRA 429

4
 2. COMPETENCY AND CREDIBILITY

1. Competency is the legal fitness or legal capacity of a person to testify as a witness.

Competency involves a determination of whether the person offered as a witness has all
the qualifications prescribed by law and is not among those disqualified by law or by the
rules of evidence. (Note: One who is not qualified is loosely termed as “incompetent”
which is not the accurate term). Credibility goes to the character of the witness to be
believable or not. This goes to the truth of the testimony. It includes the ability of the
witness to inspire belief or not. Hence a witness maybe competent but is not credible.

2. Competence is a matter of law or, in this jurisdiction, also a matter of rule. Credibility
of the witness has nothing to do with the law or the rules it refers to the weigh and
trustworthiness or reliability of the testimony. In deciding the competence of a witness,
the court will not inquire into the trustworthiness of a witness.6

In deciding the competence of a witness, the court will not inquire into the
trustworthiness of a witness. A witness who has given contradicting testimonies is still a
competent witness.7 Bias is not even a basis for declaring a witness incompetent to
testify.8

5. Under the Rules of Court, persons covered by the Survivorship Disqualification Rule
(Dead Man's Statute) cannot testify as to any matter of fact occurring before the death or
insanity of the adverse party.9 This rule is directed to the issue of competency of a
witness, not to his credibility.

6. Drug abuse will not render a person incompetent to testify10. While bias and drug
abuse may not be grounds for barring a witness from testifying, they may serve as
grounds for attacking the credibility of a witness. Deaf-mutes, drug addicts, intoxicated
persons, or persons under hypnotic influence may likewise testify, provided they are
competent, and have legal capacity, and perceiving can make known their perception to
others.

7. Questions concerning the credibility of a witness are best addressed to the sound
discretion of the trial court as it has the best position to observe his demeanor and bodily
movements.11 The Supreme Court generally defers to the trial court's assessment because

6
https://www.batasnatin.com/law-library/remedial-law/evidence/1089-rule-130-rules-of-court-
admissibility-of-evidence.html
7
Riano, p. 168
8
Ibid, citing U.S. V. Cervantes-Pacheco, 826 F2d 310[5th Cir. 1987]
9
Sec. 23, Rules of Court
10
Ibid. citing U.S. v. Behrens, 689F.2d 621 [D.C. Cir. 1980]
11
Ibid. citing Llanto v. Alzona, 450 SCRA 288

5
it has the singular opportunity to observe the demeanor of witnesses and their manner of
testifying.12

8. Findings of the trial court, its calibration of the testimony of the witnesses, and its
assessment of the probative weight thereof, as well as its conclusions anchored on said
findings are accorded respect if not conclusive effect.13

Findings of the lower courts with respect to the credibility of a rape victim, for example,
are conclusive14

Competency Presumed; How Questioned

A person who takes the witness stand, as a general rule is presumed to possess the
qualifications of a witness. If a party desires to question the competence of a witness he
may do so by interposing an objection; this objection should be made as the facts tending
to show incompetency are discovered. If the objection is not made at such time, it may be
considered as waived.

Voir Dire Examination

Voir Dire Examination is an examination conducted by the court on the competency of a

witness whenever there is an objection to the competency of the witness and is usually
made before the witness starts with his testimony. The party objecting maybe allowed to
present evidence on his objection or the court itself may conduct the questioning on the
witness. 15

The party who raises the objection may pray for leave to conduct a voire dire
examination on such witness to test his competency. The court may motu proprio conduct
the voir dire examination. In United States v. Buncad, this Court held that when a child of
tender age is presented as a witness, it is the duty of the judge to examine the child to
determine his competency.16 In Republic v. Court of Appeals, this Court held that:

When a witness is produced, it is a right and privilege accorded to the adverse party to
object to his examination on the ground of incompetency to testify. If a party knows
before trial that a witness is incompetent, objection must be made before trial that a
witness is incompetent, objection must be made before he has given any testimony; if the
incompetency appears on the trial, it must be interposed as soon as it becomes apparent.

12
Ibid. citing People v. Bustamante 533 SCRA 179
13
Ibid. citing Ricalde v. People, GR No. 211002, January 21, 2015
14
Ibid. citing People v. Dayapdapan, GR No. 209040, December 9, 2015
15
Supra.
16
Pp. v. Bisda, GR No. 140895

6
 A. DISQUALIFICATION OF A WITNESS

Who Are Disqualified?

General Rule: Only those expressly covered under the enumerations by law maybe
disqualified from testifying.

1. TOTAL OR ABSOLUTE17 - the person is disqualified to testify in any case:

a. Mental incapacity or insanity. – Those who are of unsound mind at the
time of their production for examination, to such degree as to be incapable
of perceiving and making known their perception to others.
b. Mental immaturity – Children who appear to the court to be of such tender
age and inferior capacity as to be incapable of receiving correct
impressions of the facts respecting which they are examined, or of relating
them truly.
2. PARTIAL OR RELATIVE - the person is qualified to be a witness but is
disqualified to testify in certain matters.
a. Marital disqualification rule18 - A husband cannot be examined for or
against her husband without her consent; nor a wife for or against her
husband without his consent, except in a civil case by one against the
other, or in criminal case for a crime committed by one against the other.
The husband or the wife during the marriage or afterwards, cannot be
examined without the consent of the other as to any communication
received in confidence by one from the other during the marriage.
b. Survivor's disqualification rule or dead man's statute19
c. Marital communication rule20
d. Attorney-client privilege21
e. Physician-patient privilege22
f. Priest-penitent privilege23
g. Privilege of State secrets24

Exclusivity of The Grounds for Disqualification

The grounds are limited exclusively and restrictively to those enumerated by the law.

17
Sec. 21, Rule 130, Rules of Court
18
Sec. 22, ibid.
19
Sec. 23, ibid.
20
Sec. 24(a), ibid.
21
Sec. 24(b), ibid.
22
Sec. 24(c), ibid.
23
Sec. 24(d), ibid.
24
Sec. 24(e), ibid.

7
Under Sec. 20 of Rule 130, except as provided by the law and the rules, the following
factors do not, as a general rule, constitute a disqualification of a witness:

a. Religious belief;
b. Political belief;
c. Interest in the outcome of the case; or
d. Conviction of a crime, unless otherwise provided by law. 25
i.e.:

 Rule 119 Section 17. An accused may not be discharged to act as a state
witness when he has been convicted of a crime involving moral turpitude.

 Civil Code Art. 821. Those who have been convicted of falsification of
document, perjury, or false testimony are disqualified from being
witnesses to a will.

As a consequence, these persons who are expressly prohibited by the civil code may not
also testify as witnesses in the probate of a will where the subject of the testimony is the
very fact of execution of the will in their presence.26

The specific enumeration of disqualified witnesses excludes the operation of causes of

disability other than those mentioned in the Rules. It is a maxim of recognized utility and
merit in the construction of statutes that an express exception, exemption, or saving
clause excludes other exceptions.27 As a general rule, where there are express exceptions
these comprise the only limitations on the operation of a statute and no other exception
will be implied. The Rules should not be interpreted to include an exception not
embodied therein.

CASES: CONVICTION OF A CRIME

The fact of prior criminal conviction does not suffice to automatically disqualify or
discredit a witness, the testimony of such a witness must be assayed and scrutinized in
exactly the same way the testimony of other witnesses must be examined for its relevance
and credibility.28

INTEREST IN THE CASE

It is true that in most instances, corroboration by relatives of the accused is accorded

scant consideration in view of the truism that blood is thicker than water. However, a
witness' testimony cannot be stripped of full faith and credit simply on account of his

25
Supra.
26
Ibid.
27
In Re: Estate of Enriquez, 29 Phil. 167
28
Pp. v. Dominguez, 217 SCRA 170

8
relationship to the parties. Although relationship can put the testimony of a witness in
doubt, it cannot affect credibility itself. The lower court should have subjected the
testimony of the defense witness to the ordinary process of evaluation and accordingly
assigned to it the proper intrinsic weight.29

RELATIONSHIP WITH A PARTY

The relationship of a witness with a party does not ipso facto render him biased witness
in criminal cases where the quantum of evidence is proof beyond reasonable doubt. There
is no reason why the same principle should not apply to a civil case where the quantum of
evidence is only preponderance of evidence.30

B. DISQUALIFICATION BY REASON OF MENTAL CAPACITY

OR IMMATURITY
(Rule 130, Sec. 21)

The following persons cannot be witnesses:

a) Those whose mental condition, at the time of their production for
examination, is such that they are incapable of intelligently making known
their perception to others;
b) Children whose mental maturity is such as to render them incapable of
perceiving the facts respecting which they are examined and of relating
them truthfully.

MENTAL INCAPACITY

Sec.21 (a) of Rule 130 establishes the rule that the mental incapacity of a witness at the
time of his perception of the events subject of the testimony does not affect his
competency as long as he is competent at the time he is produced for examination to
make known his perception to others. His incapacity at the time of perception, although
without legal effect on his competency to testify, would, however, affect his credibility31.
As long as the witness can convey ideas by words or signs and give sufficiently
intelligent answers to questions propounded, he/she is a competent witness even if he/ she
is feebleminded.32

Regardless of the nature or cause of mental disability, the test of competency to testify is
as to whether the individual has sufficient understanding to appreciate the nature and

29
Pp. v. Entila, 325 SCRA 226
30
Supra. citing Northwest Airlines, Inc. v. Chiong, 543 SCRA 308
31
Riano, W., EVIDENCE: The bar lecture series, 2016 ed, p188
32
People vs. De Jesus, L-39087, April 27, 1984

9
 obligation of an oath and sufficient capacity to observe and describe correctly the facts in
regard to which he is called to testify.

Presumption of Sanity
The law presumes that every person is of sound mind, in the absence of proof to the
contrary. But mental unsoundness alone does not per se disqualify a witness, it must be of
such degree that the person’s ability to perceive, recall, and testify are so impaired that
the witness’s testimony is worthless.33

Exception: If the witness is a lawful inmate of an asylum for the insane.34

Rules on Time of Insanity

1. At the time of trial- incompetent
2. At the time of the transaction- competent but may affect the witness’ credibility
3. At some other period- no effect

 Deaf-mutes are competent witnesses when they can understand and appreciate the
sanctity of an oath, can comprehend facts they are going to testify to and can
communicate their ideas through a qualified interpreter.35

IMMATURITY
Basic requirements of a child’s competency as a witness:
a) Capacity to distinguish right from wrong or to comprehend the obligation of his
oath;
b) Capacity to receive correct impressions;
c) Capacity to relate those facts truly to the court at the time he is offered as a
witness.
In ascertaining whether a child is of sufficient intelligence according to the foregoing
requirements, it is settled rule that the trial court is called upon to make such
determination (competency examination).

To be disqualified as a witness by reason of immaturity, the following must concur:

a) The mental maturity of the witness must render him incapable of perceiving the
facts respecting which he is examined; and
b) He is incapable of relating his perception truthfully

33
5 Herrera, 1999 ed., p285
34
Torres vs. Lopez, 48 Phil. 72.
35
People vs. Hayag, L-38635, November 17, 1980

10
In disqualification by reason of immaturity, the incompetence of the witness must occur
at the time he perceives the event including his incapability to relate perceptions
truthfully.36

36
Riano, p. 189

11
 THE RULE ON EXAMINATION OF CHILD WITNESS
(A.M. No. 00-4-07-SC)
Effectivity: December 15, 2000

Applicability of the Rule

Unless otherwise provided, this Rule shall govern the examination of child witnesses who
are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all
criminal proceedings and non-criminal proceedings involving child witnesses.37

Definitions
A "child witness" is any person who at the time of giving testimony is below the age of
eighteen (18) years. In child abuse cases, a child includes one over eighteen (18) years
but is found by the court as unable to fully take care of himself or protect himself from
abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental
disability or condition.38

Presumption of Competency
Every child is presumed qualified to be a witness. However, the court shall conduct a
competency examination of a child, motu proprio or on motion of a party, when it finds
that substantial doubt exists regarding the ability of the child to perceive, remember,
communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in
court.39
 A party seeking a competency examination must present proof of necessity of
competency examination. The age of the child by itself is not sufficient basis for a
competency examination40
 To rebut the presumption of competence enjoyed by a child, the burden of proof
lies on the party challenging his competence.41
 Only the following are allowed to attend a competency examination:
(1) The judge and necessary court personnel;
(2) The counsel for the parties;
(3) The guardian ad litem;
(4) One or more support persons for the child; and
(5) The defendant, unless the court determines that competence can be
fully evaluated in his absence.42

37
Sec 1.
38
Sec 4(a)
39
Sec 6
40
Sec. 6(a)
41
Sec. 6(b)
42
Sec.6(c)

12
  Examination of a child as to his competence shall be conducted only by the judge.
Counsel for the parties, however, can submit questions to the judge that he may,
in his discretion, ask the child.43
 The questions asked at the competency examination shall be
a. Appropriate to the age and developmental level of the child;
b. It shall not be related to the issues at trial;
c. It shall focus on the ability of the child to remember, communicate,
distinguish between truth and falsehood, and appreciate the duty to
testify truthfully.44
 The court has the duty of continuously assessing the competence of the child
throughout his testimony.45

Before testifying, a child shall take an oath or affirmation to tell the truth.46

The examination of a child witness presented in a hearing or any proceeding shall be

made as follows:
1. It shall be done in open court.
2. Unless the witness is incapacitated to speak, or the question calls for a different
mode of answer, the answers of the witness shall be given orally.
3. The party who presents a child witness or the guardian ad litem of such child
witness may, however, move the court to allow him to testify in the manner
provided in this Rule.47

The court may:

1. Allow the child witness to testify in a narrative form,
2. Allow leading questions in all stages of the examination of a child if the same will
further the interests of justice.
3. Permit the child to use dolls anatomically correct dolls, puppets, drawings,
mannequins, or any other demonstrative device to assist him in his testimony.
4. Allow the child to have an item of his own choosing such as blanket, toy or doll
(emotional security item)
5. Allow the child reasonable periods of relief while undergoing direct, cross, re-
direct, and re-cross examinations as often as necessary depending on his
developmental level.
6. Allow that the testimony of the child be taken in a room outside the courtroom
and be televised to the courtroom by live-link television if there is a substantial

43
Sec 6(d)
44
Sec. 6(e)
45
(Sec. 6(f)
46
Sec.7
47
Sec.8

13
 likelihood that the child would suffer trauma from testifying in the presence of the
accused, his counsel or the prosecutor as the case maybe. The trauma must be of a
kind which would impair the completeness or truthfulness of the testimony of the
child.48
7. Permit that a deposition be taken of the testimony of the child and that it be
recorded and preserved on videotapes
8. Excluded the public from the court room when they do not have a direct interest
in the case. The court may also, on motion of the accused, exclude the public from
trial, except court personnel and the counsel of the parties.

Corroboration shall NOT be required of a testimony of a child. His testimony, if

credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment
subject to the standard of proof required in criminal and non-criminal cases.

“Sexual Abuse Shield Rule”

General Rule: The following evidence is not admissible in any criminal proceeding
involving alleged child sexual abuse:
1. Evidence offered to prove that the alleged victim engaged in other sexual
behavior; and
2. Evidence offered to prove the sexual predisposition of the alleged victim.

Exception: Evidence of specific instances of sexual behavior by the alleged victim to

prove that a person other than the accused was the source of the semen, injury, or other
physical evidence shall be admissible.

 It is likewise settled jurisprudence that testimonies of child-victims are given full weight
and credit. When a woman or child says that she has been raped, she says in effect all that
is necessary to show that rape was indeed committed.49

Hearsay Exception in Child Abuse Cases

A statement made by a child describing any act or attempted act of child abuse, not
otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal
or non-criminal proceeding.

Rules in the admissibility of such statements:

1. Before such hearsay statement may be admitted, its proponent shall make known to
the adverse party the intention to offer such statement and its particulars to provide
him a fair opportunity to object. If the child is available, the court shall, upon motion
of the adverse party, require the child to be present at the presentation of the hearsay

48
Sec. 25(f), Rule on Examination of a Child Witness
49
People v. Pulanco, G.R. No. 141186, Nov. 27, 2003

14
 statement for cross-examination by the adverse party. When the child is unavailable,
the fact of such circumstances must be proved by the proponent.
2. In ruling on the admissibility of such hearsay statement, the court shall consider the
time, content and circumstances thereof which provide sufficient indicia of reliability.

When a child witness is considered unavailable?

1. Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will
be exposed to severe psychological injury; or
2. Is absent from the hearing and the proponent of his statement has been unable to
procure his attendance by process or other reasonable means.
 When the child witness is unavailable, his hearsay testimony shall be admitted only if
corroborated by other admissible evidence.

Protective Orders
 Any videotape or audiotape of a child that is part of the court record shall be under a
protective order.
 The court may, motu proprio or on motion of any party, the child, his parents, legal
guardian, or the guardian ad litem, issue additional orders to protect the privacy of the
child.

Child Witness Ordinary witness

Only the judge is allowed to ask questions Opposing counsels are allowed to ask
to a child witness during preliminary questions during preliminary examination
examination
Leading questions are allowed Leading questions are generally not
allowed
Testimony in a narrative form is allowed Testimony in a narrative form is not
allowed
The child witness is assisted by a facilitator An ordinary witness is not assisted by a
facilitator

15
 C. DISQUALIFICATION BY REASON OF MARRIAGE
“Marital Disqualification”
(Rule 130, Sec. 22)

As a general rule, during their marriage, neither the husband nor the wife may testify for
or against the other without the consent of the affected spouse.

Purpose
 To obviate perjury and to prevent domestic disunity and unhappiness.
 To preserve the marriage relations and promote domestic peace.

The case of Alvarez v. Ramirez50 gives the specific reasons for the rule, thus:
(a) There is identity of interests between husband and wife;
(b) If one were to testify for or against the other, there is a consequent danger in
perjury;
(c) The policy of the law is to guard the security and confidences of private life,
even at the risk of an occasional failure of justice, and to prevent domestic
disunion and unhappiness; and
(d) Where there is want of domestic tranquility, there is danger of punishing one
spouse through the hostile testimony of the other.

Who May Object

Only the spouse-party and not the other spouse who is offered as a witness. The benefit
may be waived, impliedly or expressly.

The requisites of this rule are the following:

1) That the spouse for or against whom the testimony is offered is a party to the case;
2) That the spouses are legally married (valid until annulled);
3) Testimony is offered during the existence of marriage;
4) The case is not one of the exceptions provided in the rule51

Duration of the Privilege

In order that the husband or wife may claim the privilege, it is essential that they be
validly married. If not, there is no privilege. The rule, therefore, does not cover illicit
cohabitation.

Further, it does not only requires a valid marriage but the existence of that valid marriage
at the moment the witness-spouse gives the testimony.

50
473 SCRA 72
51
Herrera, p. 302

16
Aside from that, it does not matter if the facts subject of the testimony occurred or came
to the knowledge of the witness-spouse before the marriage. The affected spouse may
still invoke the rule by objecting to the testimony as long as it is offered during the
marriage. Nothing in the tenor of the rule allows a contrary view.

Illustration:
Before the marriage of W to H, she witnessed the murder of X by H but she never
reported what she witnessed to the authorities. A year after the murder, H and W married.
Barely six months after the marriage, W became a battered wife and to get even with H,
she decided to report the murder to the police. (a) May she testify against H over the
latter's objection even if the murder took place before the marriage? Answer: She cannot
testify over the objection of H. The situation is covered by the marital disqualification
rule. (b) Suppose a year after the marriage, the marriage is annulled, may W now testify
despite the objection of H? Answer: She can now testify after the marriage annulled. The
prohibition no longer applies since the testimony is to be offered after, not during the
marriage.

Nature of the Prohibition

It is an absolute prohibition against the spouse's testifying to any fact affecting the
husband or the wife however the knowledge of these facts may have been acquired. The
prohibition extends not only to a testimony adverse to the spouse but also to testimony in
favor of the spouse.

The exceptions to the marital disqualifications are the following:

1) Where the testimony was made outside the marriage;
2) In a civil case by one spouse against the other; or
3) In a criminal case for a crime committed by one spouse against the other or the latter’s
direct descendant or ascendants.

Civil case by one spouse against the other

In order for a spouse to be allowed to testify against the other in civil case, the case must
be a "civil case by one against each other." This contemplates the situation where one
spouse is plaintiff or petitioner and the other spouse is a defendant or respondent. Where
the civil case is between a spouse and the direct descendants or ascendants of the other,
the marital disqualification rule still applies. Thus, if the wife sues the father of her
husband for collection of a loan, the husband may be barred from testifying against the
wife upon the objection of the latter. Thus is because the civil case is not by one spouse
against the other but between a spouse and the parent of the other.52

52
Riano, p. 200

17
Criminal case for a crime committed by one spouse against the other or the latter’s
direct descendant or ascendants.

In a criminal case, the privilege of one to testify against the other is not confined to
crimes committed by one against the other, but covers crimes committed by one against
the direct descendant or ascendants of the latter like the latter's children or parents.
However, crimes committed by the spouse against a spouse's collateral relatives like
uncles, aunties, cousins or nephews and nieces are not covered by the exception because
they are neither direct descendants or ascendants.53

If the wife sues the husband for fraudulently embezzling the paraphernal funds of the
former, the reason for the prohibition in the rule ceases. The wife can now testify against
the husband. Also, if the wife is sued for adultery, the husband cannot be barred from
testifying against the wife. In a suit for annulment of marriage, each spouse can testify
against each other. The same rule applies when the husband is sued by the wife for
bigamy.54

Testimony where a spouse is accused with others

May a spouse testify in a trial where the other spouse is a co-accused? Consider
the following:

Illustration:
Accused-appellant and his brothers were jointly accused with parricide for the
alleged killing of their own father. One of the witnesses presented by the prosecution
against all the accused was the wife of accused-appellant. May the wife testify in the
proceedings against all the accused?

In People v. Quidato, Jr.55, the Court ruled in the affirmative but, likewise, held
that the testimony of the wife in reference to her husband must be disregarded since the
husband timely objected thereto under the marital disqualification rule. The Court
explained that the disqualification is between husband and wife, but the rule does not
preclude the wife from testifying when it involves other parties or accused. Hence, the
wife could testify in the murder case against the brothers who were jointly tried with her
husband. The Court also stressed, however, that the testimony cannot be used against
accused-appellant directly or through the guise of taking judicial notice of the
proceedings in the murder case without violating the marital disqualification rule. "What
cannot be done directly cannot be done indirectly."

53
Riano, p. 201
54
Ibid, p. 200
55
297 SCRA 1

18
Testimony by estranged spouse
Literally, the prohibition would cover testimony by the estranged spouse because a
separation “de facto” does not sever the marriage bonds and the spouses remain legally
married to each other. A testimony under such a situation would still technically be a
testimony “during their marriage” However, the literal construction has been rejected by
SC in the case of Alvarez v. Ramirez. The disqualification does not apply where an
offense directly attacks or directly and vitally impairs the conjugal relations.

“It does not apply in the case of estranged spouses, where the marital and domestic
relations are so strained that there is no more harmony to be preserved nor peace and
tranquility which may be disturbed. Identify of interest disappears and the consequent
danger of perjury based on that identity is non-existent. Likewise, in such a situation, the
security and confidence of private life, which the law aims at protecting, will be nothing
but ideals, which through their absence, merely leave a void in the unhappy home”56

Marrying the Witness

An accused can effectively "SEAL THE LIPS” of a witness by marrying a witness. As
long as a valid marriage is in existence at the time of the trial, the witness-spouse cannot
be compelled to testify even where the crime charged is against the witness' person, and
even though the marriage was entered into for the express purpose of suppressing the
testimony.

56
Alvarez v. Ramirez, 473 SCRA 72 [October 14, 2005] citing People v. Castaneda, 271 SCRA 504

19
 D. DISQUALIFICATION BY REASON OF DEATH OR INSANITY OF
ADVERSE PARTY
Survivorship Disqualification or Dead Man’s Statute
(Rule 130, Section 23)

Parties or assignor of parties to a case, or persons in whose behalf a case is

prosecuted, against an executor or administrator or other representative of a deceased
person, or against a person of unsound mind, upon a claim or demand against the estate
of such deceased person or against such person of unsound mind, cannot testify as to any
matter of fact occurring before the death of such deceased person or before such person
became of unsound mind57

This rule applies only to a civil case or a special proceeding over the estate of a
deceased or insane person.58

Purpose of the Rule

The Supreme Court had repeatedly held, in not a few cases, that the object of the rule is
to guard against the temptation to give false testimony in regard to the transaction on the
part of the surviving party and thereby put the parties upon equal terms. Its purpose is to
close the lips of the plaintiff when death has closed the lips of the defendant, in order to
remove form the plaintiff the temptation to do falsehood and the possibility of fictitious
claims against the deceased.59

The following are the elements for the application of this rule:
a. The suit is upon a claim by the plaintiff against the estate of said deceased or
person of unsound mind;
b. The defendant in the case is the executor or administrator or a representative of
the deceased or the person of unsound mind;
c. The witness is the plaintiff, or an assignor of that party, or a person in whose
behalf the case is prosecuted; and
d. The subject of the testimony is as to any matter of fact occurring before the death
of such deceased person or before such person became of unsound mind.60

57
Sec. 23, Rule 130, Rules of Court
58
Regalado, p. 743
59
Tan v. Court of Appeals, 295 SCRA 247; See also Garcia v. Vda. de Caparas, G.R. No. 180843, April 17,
2013
60
Sec. 23, Rule 130, Rules of Court

20
  Incompetency to testify applies whether the deceased died before or after the
commencement of the action against him if at the time the testimony was given he
was already dead and cannot disprove it.

Assignor pertains to the assignor of a cause of action which has already arisen and not
the assignor of a night before any cause of action accrued.

A simple hypothetical example may help us understand the rule:

Mr. D approaches Mr. C, one rainy Sunday morning, to borrow P100, 000.00 to
be paid exactly a year later. Without hesitation, Mr. C gives Mr. D the amount requested.
Mr. C does not require Mr. D to execute a promissory note. They have been very good
friends for as long as they can remember. Years ago, when Mr. C's small business was on
the verge of bankruptcy, it was the generosity of the then wealthy Mr. D that bailed him
out. Exactly a day before the agreed date for payment, Mr. D peacefully joins his Creator
without paying the debt. What does Mr. C do? Well, he does what every creditor would
do under the circumstances. He goes to the executor of what remains of the estate of Mr.
D, and tells him of the debt of Mr. D. He says:

"Today is supposed to be the due date of his debt. I cannot demand payment from
him because he is dead. You are the executor and you are very much alive. I am asking
you to pay his debt."

The executor retorts:

"Look Sir! I am not sure if you are telling the truth. Don't get me wrong! I am not
calling you a liar but I cannot verify the truth of your claim. Mr. D is dead. He cannot
speak. His lips are forever sealed. I would be doing an act unfair to the memory of Mr. D
if I were to listen to you. I am sorry, I cannot pay."

What is the effect of the death of Mr. D in relation to Sec. 23 of Rule 130? The
rule is clear. Mr. C is rendered incompetent to testify as to the transaction he had with
Mr. D. He is incompetent because of the possibility that his claim is fraudulent. If Mr. C
were to be heard, there would be a high risk of paying fraudulent or a fictitious claim. It
is Mr. C who has the motive to lie. He is the survivor. Mr. D cannot lie. He is dead. He
did not survive. Worse, he cannot answer back. He cannot disprove the claim of Mr. C.
To level the playing field between the lucky survivor and the poor deceased, our remedial
law ancestors devised a rule that would seal the lips of the survivor by declaring him
incompetent to testify on the transaction between him and the deceased. The rule is
definitely one that does not protect the survivor even at the risk of not paying a just and
valid claim because it is the survivor who has the stronger reason to file a false claim.
The rule is for the protection of the guy who died. Hence, the name, Dead Man's Statute.

21
Scope or Application of the survivor’s disqualification:
1. Disqualify the plaintiff, his assignor, or person in whose behalf the case is
prosecuted.
This rule does not prohibit a testimony by a mere witness (disinterested witness)
to the transaction between the plaintiff and the deceased and who has no interest
in such transaction.
2. The rule protects the executor, administrator, or other representative of the
deceased, or of a person of unsound mind when he is the defendant.
Conversely, the rule will not apply where the plaintiff is the executor or
administrator as representative of the deceased or if the plaintiff is the person of
unsound mind.
Examples:
a. If the Executor of the estate of X sues Z to collect an unpaid debt incurred in
favor of X before the latter’s death, Z, although a survivor, is not precluded
from testifying as the transaction he previously had with X because the case
is not a claim against the estate of X but a claim by his estate against Z.
b. As declared by the court, the rule contemplates a suit against the estate, its
administrator or executor and not a suit filed by the administrator or
executor of the estate. A defendant, who opposes the suit filed by the
administrator to recover alleged shares of stock belonging to the deceased, is
not barred from testifying as to his transaction with the deceased with
respect to the share.61
c. When a counterclaim is set up by the administrator of the estate, the case is
removed from the operation of the dead man’s statute. The plaintiff may
testify the occurrence before the death of the deceased to defeat the
counterclaim which is not brought against the representative of the estate but
by the said representative.62

3. The rule may be invoked in any action based upon a claim or demand against the
estate of the deceased or person of unsound mind.

This rule does not apply when the action brought is not against the estate or not a
claim or demand against the estate. This claim, by its nature, is civil, not criminal,
because the estate cannot be criminally liable.

4. The rule excludes testimony on any matter of fact occurring before the death of
the deceased person or the insane become of unsound mind.

61
Razon vs Intermediate Appellate Court, 207 SCRA 234
62
Sunga-Chan v. Chua, 363 SCRA 249

22
 Facts favorable to the deceased are NOT prohibited. As the statutes are designed
to protect the interest of a deceased or insane person, they do not exclude
testimonies which are favorable to the representative of such person or to the
estate or to the insane person.
Example:
A witness who testifies on the basis of their knowledge of a transaction, not
based on their dealings with the deceased, are not barred. As the court
ruled: “The dead man’s statute does not operate to close the mouth of a
witness as to any matter of fact coming to his knowledge in any other way
than through personal dealings with the deceased person, or
communication made by the deceased to the witness”63

When Dead man's statute cannot be invoked:

1. Testimony of mere witnesses who are neither party plaintiffs, nor their assignors,
nor persons in whose behalf a case is prosecuted, nor to a nominal party, nor to
officers and stockholders of a plaintiff corporation;
2. If the plaintiff is the executor or administrator or other representative of a
deceased person, or the person of unsound mind;
3. In an action against a partnership;
4. If the person or persons mentioned under the rule file a counterclaim;
5. When the testimony refers to fraudulent transactions committed by the persons
mentioned in the rule, provided that fraud has been clearly established by other
evidence;
6. When there is waiver;
The protection may be waived by (a) failing to object to the testimony, or (b)
cross-examining the witness on the prohibited testimony,64 or by (c) offering
evidence to rebut the testimony.
7. When the testimony of a plaintiff refers to the non-occurrence of a fact, because
in that case, the plaintiff does not testify on the occurrence of fact but on its non-
occurrence;
8. In cadastral cases since there is neither plaintiff nor defendant, nor in land
registration cases instituted by the decedent's representatives, as the oppositors are
considered defendants and may, therefore, testify against petitioner;
9. Testimony on the possession by witness of a written instrument mad by the
deceased, as such fact exists even after the decedent's demise;

63
Bordalba v. CA, 373 SCRA 555
64
Santos vs Santos, 366 SCRA 39

23
 10. Where the deceased contracted with the plaintiff through an agent and said agent
is alive and can testify, but the testimony of the plaintiff should be limited to acts
performed by the agent.

CASE: Sunga-Chan Vs. Chua65

The "Dead Man's Statute" provides that if one party to the alleged transaction is
precluded from testifying by death, insanity, or other mental disabilities, the surviving
party is not entitled to the undue advantage of giving his own uncontradicted and
unexplained account of the transaction.But before this rule can be successfully invoked to
bar the introduction of testimonial evidence, it is necessary that:
"1. The witness is a party or assignor of a party to case or persons in whose behalf a case
in prosecuted.
2. The action is against an executor or administrator or other representative of a deceased
person or a person of unsound mind;
3. The subject-matter of the action is a claim or demand against the estate of such
deceased person or against person of unsound mind;
4. His testimony refers to any matter of fact of which occurred before the death of such
deceased person or before such person became of unsound mind."

Two reasons forestall the application of the "Dead Man's Statute" to this case.

First, petitioners filed a compulsory counterclaim against respondents in their answer

before the trial court, and with the filing of their counterclaim, petitioners themselves
effectively removed this case from the ambit of the "Dead Man's Statute". Well
entrenched is the rule that when it is the executor or administrator or representatives of
the estates that sets up the counterclaim, the plaintiff, herein respondent, may testify to
occurrences before the death of the deceased to defeat the counterclaim. Moreover, as
defendant in the counterclaim, respondent is not disqualified from testifying as to matters
of facts occurring before the death of the deceased, said action not having been brought
against but by the estate or representatives of the deceased.

Second, the testimony of Josephine is not covered by the "Dead Man's Statute" for the
simple reason that she is not "a party or assignor of a party to a case or persons in whose
behalf a case is prosecuted." Records show that respondent offered the testimony of
Josephine to establish the existence of the partnership between respondent and Jacinto.
Petitioners' insistence that Josephine is the alter ego of respondent does not make her an
assignor because the term "assignor" of a party means "assignor of a cause of action
which has arisen, and not the assignor of a right assigned before any cause of action has
arisen."Plainly then, Josephine is merely a witness of respondent, the latter being the
party plaintiff.

65
GR 143340 (2001)

24
 E. DISQUALIFICATION BY REASON OF PRIVILEGED COMMUNICATIONS

Marital privileged communications (Bar 1995; 2004 ; 2010)

1. There are two independent codal provisions which cover marital disqualifications.
The first in sec. 22 of rule 130 ( Disqualification by reason of marriage) and the
second is Sec. 24 (a) of rule 130 (Disqualification by reason of privileged
communication)
2. Under sec. 24 of rule 130 of the rules of the court, there are certain person who
cannot testify as to matters learned in confidence. Among those subject to the rule
are legitimate spouses. The provision states as follows:
“SEC. 24 Disqualification by reason of privilege of
communication.- The following person cannot testify as to matters
learned in confidence in the following cases:
a. The husband or a wife, during or after the marriage, cannot
be examined without the consent of the other as to any
communication received in confidence by one from the
other during the marriage except in a civil case by once
against the other or the latter’s direct descendants or
ascendants;
x x x”

3. Under the provisions of sec. 24(a) of rule 130, the husband or the wife cannot be
examined without the consent of the other as to any communication received in
confidence by one from the other during the marriage.
The application of the rule requires the presence of the following elements;

(a). there must be a valid marriage between the husband and wife;
(b). there is a communication received in confidence by one from the other; and
(c). the confidential communication was received during the marriage.

4. The law insures absolute freedom of communication between the spouses by making it
privileged x x x . Neither may be examine without the consent of the other as to any
communication received in confidence by one from the other during the marriage, save
for specified exceptions. But one thing is freedom of communication; quite another is a
compulsion for each one to share what one knows with the other and this has nothing to
do with the duty of fidelity that each owes to the other”66
5. Since the application of the rules requires confidential information received by one
spouse from the other during the marriage, information acquired by a spouse before a

66
Zulueta v. court of appeals, 253 scra 699

25
 marriage, even if received confidential, will not fall squarely with the provision Sec.
24(a) of rule 130. However, divulging the same maybe objected to under Sec. 22 of rule
130 upon proper objection as long as the information is sought to be revealed during the
marriage through a testimony for or against the affected spouse. The tenor of Sec. 22 of
rule 130 does not distinguish as to when the information subject of the testimony was
acquired and, thus, may cover matters which occurred or to adverse information acquired
prior to the marriage. It is sufficient that witness-spouse testifies during the marriage. It is
unlike Sec. 24(a) which explicitly requires that the confidential information be received
during the marriage.
Note that sec. 24(a) of rule 130 also requires that the information received in
confidence during the marriage be “by one from the other.” The implication is clear:
confidential information received from a third person is not covered by the privilege.

6. For the information to be confidential, it must be made during or by reason of the marital
relations and is intended not to be shared with others. Without such intention, common
reasons suggest that the information is not confidential. Thus, in U.S. v. Antipolo67, the
wife was allowed, in a prosecution for murder, to testify as to her husband’s declaration
regarding the identity of the assailant because there was no intent of confidentiality in the
information. The declaration is intended be communicated after the husband’s death
because it was made in the furtherance of justice.

7. The marital privilege rule, being a rule of evidence, may be waived by failure of the
claimant to object timely to its presentation or by any conduct that may be construed as
implied consent.68

Explanation of distinctions between the marital disqualification rule and the marital
privileged communication rule
1. Sec. 24 (a) of rule 130 has reference to confidential communication received by
one spouse from the other during the marriage. The marital disqualification rule
under Sec.22 of rule 130 does not refer to confidential communications between
the spouses. It will not come into play when the fact pattern in a problem makes
reference to confidential communications between husband and wife during the
marriage. Sec. 24 (a) of rule 130 will instead, apply.
However, communications that are not intended to be confidential because
they were uttered in the presence of third parties are not deemed confidential even
when made during the marriage, but Sec. 22 could apply, instead of Sec. 24 (a),
when used as parts of a testimony for or against the party-spouse.

67
37 Phil. 726
68
Lacurom v. Jacoba, 484 SCRA 206

26
 The marital privileged communication rule in sec. 24 (a), applies only to
testimonies of a confidential nature received by one spouse from the other during
the marriage and obviously does not include acts merely observed by the spouse
unless such acts are intended as a means of conveying confidential
communication by one to the other.
2. Sec. 22 of rule 130 includes facts, occurrences or information even prior to the
marriage unlike sec. 24 (a) which applies only to confidential information
received during the marriage. In this sense, sec. 22 is broader because it prevent
testimony for or against the spouse on any facts and not merely a disclosure of
confidential information.

3. When the marital privileged communication rule under Sec. 24 (a) applies, the
spouse affected by the disclosure of the information or testimony may object even
after the dissolution of the marriage. The privilege does not cease just because the
marriage was ended. The marital disqualification rule under Sec.22, on the other
hand, can no longer be invoked once the marriage is dissolved. It may be asserted
only during the marriage. In this sense, Sec. 24 (a) is broader.

4. The marital disqualification rule in Sec. 22 requires that the spouse for or against
whom the testimony is offered is the party to the action. This is not required in the
marital privileged communication rule in sec. 24. (a) which applies regardless of
whether the spouses are parties or not.

Note: in the marital disqualification rule in Sec. 22, the prohibition is a testimony for or
against the other. In Sec. 24 (a), what is prohibited in the examination of the spouse as to
matters received in confidence by one from the other during the marriage.

Case: Alvarez Vs. Ramirez69

Like all other general rules, the marital disqualification rule has its own exceptions,
both in civil actions between the spouses and in criminal cases for offenses
committed by one against the other. Like the rule itself, the exceptions are backed by
sound reasons which, in the excepted cases, outweigh those in support of the general
rule. For instance, where the marital and domestic relations are so strained that there
is no more harmony to be preserved nor peace and tranquility which may be
disturbed, the reason based upon such harmony and tranquility fails. In such a case,
identity of interests disappears and the consequent danger of perjury based on that
identity is non-existent. Likewise, in such a situation, the security and confidences of
private life, which the law aims at protecting, will be nothing but ideals, which
through their absence, merely leave a void in the unhappy home.

69
GR No. 143439, October 14, 2005

27
 Obviously, the offense of arson attributed to petitioner, directly impairs the conjugal
relation between him and his wife Esperanza. His act, as embodied in the Information
for arson filed against him, eradicates all the major aspects of marital life such as
trust, confidence, respect and love by which virtues the conjugal relationship survives
and flourishes.

As correctly observed by the Court of Appeals:

The act of private respondent in setting fire to the house of his sister-in-law Susan
Ramirez, knowing fully well that his wife was there, and in fact with the alleged
intent of injuring the latter, is an act totally alien to the harmony and confidences of
marital relation which the disqualification primarily seeks to protect. The criminal act
complained of had the effect of directly and vitally impairing the conjugal relation. It
underscored the fact that the marital and domestic relations between her and the
accused-husband have become so strained that there is no more harmony, peace or
tranquility to be preserved. The Supreme Court has held that in such a case, identity is
non-existent. In such a situation, the security and confidences of private life which the
law aims to protect are nothing but ideals which through their absence, merely leave a
void in the unhappy home.70 Thus, there is no longer any reason to apply the Marital
Disqualification Rule.

It should be stressed that as shown by the records, prior to the commission of the
offense, the relationship between petitioner and his wife was already strained. In fact,
they were separated de facto almost six months before the incident. Indeed, the
evidence and facts presented reveal that the preservation of the marriage between
petitioner and Esperanza is no longer an interest the State aims to protect.
At this point, it bears emphasis that the State, being interested in laying the truth
before the courts so that the guilty may be punished and the innocent exonerated,
must have the right to offer the direct testimony of Esperanza, even against the
objection of the accused, because (as stated by this Court in Francisco[14]), it was the
latter himself who gave rise to its necessity.

Attorney-Client Privilege (Bar 2008)

1. The following is the applicable provision under rule 130 involving privileged
communications between an attorney and his client:

“SEC. 24. Disqualification by reason of privileged communication.

– the following person cannot testify as to matters learned in
confidence in the following cases:
(a) xxx

70
Ibid, citing People v. Castaeda, 271 SCRA 504

28
 (b) An attorney cannot, without the consent of his client, be
examined as to any communication made by the client to him, or his
advice given thereon in the course of, or with a view to,
professional employment, nor can an attorney’s secretary,
stenographer, or clerk be examines, without the consent of the client
and his employer, concerning any fact the knowledge of which has
been acquired in such capacity.”

2. The following requisites must be present for the privilege to arise;

(a) There must be communication made by client to the attorney, or an advice
given by the attorney to his client;
(b) The communication or advice must be given in confidence; and
(c) The communication or advice must be given either in the course of the
professional employment or with a view to professional employment.

3. The present rules do not require a perfected attorney-client relationship for the
privileged to exist. The communication between the attorney and the client no
longer need to be in the course of an actual professional employment. It is enough
that the communication or advice be “ with a view to” professional employment.71
Hence, the privilege is extended to communications made for the purpose of
securing the services of counsel even if the counsel later refuses the professional
relationship. The insertion of the clause “with a view to” includes preliminary
negotiations within the privilege. Without the clause, it would seem extremely
risky to consult an attorney for the first time and communicate to him certain
sensitive information without the protection of confidentiality.

4. Accordingly, the privilege is not confined to communications regarding actual

pending cases. The communication may refers to anticipated litigations or may
not refers to any litigation at all. It is sufficient that the statements be made in the
course of legitimate professional relationship between the attorney and the
client.72

The communication may be oral or written but is deemed to extent to other forms
of conduct, like physical demonstration, as long as they are intended to be
professional. It is, likewise, submitted that the communication between a client
and his lawyer is not deemed lacking in confidentiality solely because the
communication is transmitted facsimile, cellular telephone or other electronics
means.

71
Sec. 24[b], Rule 130, Rule of Court
72
Jones on Evidence, Vol. 3, §749

29
 5. It is commonly acknowledged that the privileged does not extend to
communications were the client’s purpose is the furtherance of a future intended
crime or fraud,73 or for the purpose of committing a crime or a tort,74 or those
made when used to furtherance of illicit activity.75 Accordingly, although
communications made when used to further crimes are not privileged, the
discussion of the communications in confidence with the lawyer after the crime
has been committed may still be privileged even though the earlier ones were
not.76

6. The statements of the client need not to be made to attorney in person, those made
to the attorney’s secretary, clerk, or stenographer for transmission to the attorney
for the purpose of the professional relationship, or with a view to such
relationship, or those knowledge acquired by such employees in such capacity are
covered by the privilege. Like the attorney, their employer, these person cannot be
examined as to the communication made by the clients or the advice given by the
attorney without the clients consent and also the employers consent.77

7. A lawyer is bound to comply with canon 21 of the Code of Professional

Responsibility which states that, “a lawyer shall preserve the confidence secret of
his client even after the attorney-client relation is terminated.” The reason to
provision is found in the relation of attorney and client, which is one of trust and
confidence of the highest degree. A lawyer becomes familiar with all the facts
connected with his client’s case. He learns from his client the weak points of the
action as well as the strong ones. Such knowledge must be considered sacred and
guarded with care.78

CASE: MERCADO VS VITRIOLO79

In engaging the services of an attorney, the client reposes on him special powers of trust
and confidence. Their relationship is strictly personal and highly confidential and
fiduciary. The relation is of such delicate, exacting and confidential nature that is
required by necessity and public interest. Only by such confidentiality and protection will
a person be encouraged to repose his confidence in an attorney. The hypothesis is that
abstinence from seeking legal advice in a good cause is an evil which is fatal to the

73
8 Wigmore, Evidence, §§2298, 2299 [ McNaughton Reev. 1961]; Gardner, The Crime of Fraud Exception
to the Attorney-Client Privilege, 47 A.B.A.J 708
74
U.S. v. Wilson, 798 F.2d 509 [1st Cir. 1986]
75
U.S. v. Aucion, 964 F.2d 1492 [5th Cir. 1992]
76
In re Federal Grand Jury Proceedings 89-10 [MIA], 938 F.2d 1578 [11th Cir. 1991]
77
Sec. 24 [b], Rule 130, Rule of Court
78
Samala v. Valencia, 512 SCRA 1; Mercado v. Vitriolo, 459 SCRA 1
79
459 SCRA 1

30
administration of justice. Thus, the preservation and protection of that relation will
encourage a client to entrust his legal problems to an attorney, which is of paramount
importance to the administration of justice. One rule adopted to serve this purpose is the
attorney-client privilege: an attorney is to keep inviolate his clients secrets or confidence
and not to abuse them. Thus, the duty of a lawyer to preserve his clients secrets and
confidence outlasts the termination of the attorney-client relationship, and continues even
after the clients death. It is the glory of the legal profession that its fidelity to its client
can be depended on, and that a man may safely go to a lawyer and converse with him
upon his rights or supposed rights in any litigation with absolute assurance that the
lawyers tongue is tied from ever disclosing it. With full disclosure of the facts of the case
by the client to his attorney, adequate legal representation will result in the ascertainment
and enforcement of rights or the prosecution or defense of the clients cause. Now, we go
to the rule on attorney-client privilege.

In fine, the factors are as follows:

(1) There exists an attorney-client relationship, or a prospective attorney-client

relationship, and it is by reason of this relationship that the client made the
communication.

Matters disclosed by a prospective client to a lawyer are protected by the rule on

privileged communication even if the prospective client does not thereafter retain the
lawyer or the latter declines the employment.[23] The reason for this is to make the
prospective client free to discuss whatever he wishes with the lawyer without fear that
what he tells the lawyer will be divulged or used against him, and for the lawyer to be
equally free to obtain information from the prospective client.[24] On the other hand, a
communication from a (prospective) client to a lawyer for some purpose other than on
account of the (prospective) attorney-client relation is not privileged. Instructive is the
case of Pfleider v. Palanca,[25] where the client and his wife leased to their attorney a
1,328-hectare agricultural land for a period of ten years. In their contract, the parties
agreed, among others, that a specified portion of the lease rentals would be paid to the
client-lessors, and the remainder would be delivered by counsel-lessee to client's listed
creditors. The client alleged that the list of creditors which he had confidentially supplied
counsel for the purpose of carrying out the terms of payment contained in the lease
contract was disclosed by counsel, in violation of their lawyer-client relation, to parties
whose interests are adverse to those of the client. As the client himself, however, states,
in the execution of the terms of the aforesaid lease contract between the parties, he
furnished counsel with the confidential list of his creditors. We ruled that this indicates
that client delivered the list of his creditors to counsel not because of the professional
relation then existing between them, but on account of the lease agreement. We then held

31
that a violation of the confidence that accompanied the delivery of that list would partake
more of a private and civil wrong than of a breach of the fidelity owing from a lawyer to
his client.

(2) The client made the communication in confidence. The mere relation of attorney and
client does not raise a presumption of confidentiality. The client must intend the
communication to be confidential. A confidential communication refers to information
transmitted by voluntary act of disclosure between attorney and client in confidence and
by means which, so far as the client is aware, discloses the information to no third person
other than one reasonably necessary for the transmission of the information or the
accomplishment of the purpose for which it was given. Our jurisprudence on the matter
rests on quiescent ground. Thus, a compromise agreement prepared by a lawyer pursuant
to the instruction of his client and delivered to the opposing party,[29] an offer and
counter-offer for settlement, or a document given by a client to his counsel not in his
professional capacity, are not privileged communications, the element of confidentiality
not being present.

(3) The legal advice must be sought from the attorney in his professional capacity. The
communication made by a client to his attorney must not be intended for mere
information, but for the purpose of seeking legal advice from his attorney as to his rights
or obligations. The communication must have been transmitted by a client to his attorney
for the purpose of seeking legal advice. If the client seeks an accounting service, or
business or personal assistance, and not legal advice, the privilege does not attach to a
communication disclosed for such purpose.
Applying all these rules to the case at bar, we hold that the evidence on record fails to
substantiate complainants allegations. We note that complainant did not even specify the
alleged communication in confidence disclosed by respondent. All her claims were
couched in general terms and lacked specificity. She contends that respondent violated
the rule on privileged communication when he instituted a criminal action against her for
falsification of public documents because the criminal complaint disclosed facts relating
to the civil case for annulment then handled by respondent. She did not, however, spell
out these facts which will determine the merit of her complaint. The Court cannot be
involved in a guessing game as to the existence of facts which the complainant must
prove.
Indeed, complainant failed to attend the hearings at the IBP. Without any testimony from
the complainant as to the specific confidential information allegedly divulged by
respondent without her consent, it is difficult, if not impossible to determine if there was
any violation of the rule on privileged communication. Such confidential information is a
crucial link in establishing a breach of the rule on privileged communication between

32
attorney and client. It is not enough to merely assert the attorney-client privilege.The
burden of proving that the privilege applies is placed upon the party asserting the
privilege

Physician-Patient Privilege (Bar 1998)

1. The privileged communication between the physician and his patient is stated as
follow in Sec. 24 of Rule 130:
“SEC. 24. Disqualification by reason of privileged communication. –
The following person cannot testify as to matters learned in
confidence in the following cases:
(a) xxx
(b) xxx
(c) A person authorized to practice medicine, surgery or
obstetrics cannot in a civil case, without the consent of the patient, be
examine as to any device or treatment given by him or any
information which he may have acquired in attending such patient in
professional capacity, which information was necessary to enable him
to act in that capacity, and which would blacken the reputation of the
patient; x x x”

2. The privileged, embodies in Sec. 24 (c) of the Rule 130, applies to a civil case,
whether the patient is a party or not. The Phraseology of the rule implies that the
privileged cannot be claimed in a criminal case presumably because the interest of
the public in criminal case prosecution should be deemed more important than the
secretary of the communication.

3. Accordingly, this privilege protects the interest of the patient. It is designed to

promote health. Not truth. It encourages free disclosure in the sickroom by
preventing disclosure in the courtroom. The patient is the person to be encouraged
and he is the holder of the privilege.80

4. The person against whom the privilege is claimed is a person duly authorized to
practice medicine, surgery, or obstetrics.

The information which cannot be disclosed refers:

(a) any advice given to the client;
(b) any treatment given to the client;

80
Metropolitan Life and Insurance Co. v. Kaufman, 104 Colo. 13,87 P.2d 758 in McCormick, Evidence, §
102

33
 (c) any information acquired in attending such patient provided that the
advice, treatment or information was made or acquired in professional
capacity and was necessary to enable him to act in that capacity; and
(d) the information sought to be disclosed would tend to blacken the
reputation of the patient.81 The world “reputation” is used instead of the
provision word, “character.”

5. Also, it is opined that the rule does not require that the relationship between the
physician and the patient be a result of a contractual relationship. It could be the
results of a quasi-contractual relationship as when the patient is seriously ill and
the physician treats him even if he is not in a condition to give his consent as in
the situation described in Art.2167 of the Civil Code of the Philippines.

6. The privilege does not apply to shield the commission of a crime or when the
purpose is an unlawful one because there is not treatment involved. Similarly,
where the purpose is to ask a physician to have one’s appearance disguised by
cosmetics or plastics surgery to escape apprehension, the privilege does not apply.
Common reason suggests that all these case be deemed outside the operation of
the privilege because the purpose is not for treatment or prevention of any disease
or injury.

7. The privilege survives the death of the patient. Death does not permit the living to
impair the deceased’s name by disclosing communication held confidential by
law.

Thus, in Gonzales v. Court of Appeals82 the Supreme Court, prevented the

disclosure of medical findings that would tend to blacken the reputation of the
patient even after his death.
8. The privilege may be waived by the patient. The waiver may be made expressly
or impliedly. The waiver may be by a contract as in medical or life insurance.
When there is disclosure by the patient of the information, there is necessarily, a
waiver. When the patient answers questions on matters which are supposedly
privileged on cross- examination, the waiver also exists.
There could also be a waiver by operation of law or the rules. Under rule 28 of the
rules of court, the in which the action is pending may, in its discretion, order a
party to submit to a physical or mental examination.83 This happens when the
mental or physical condition of a party is in dispute. The party examined may
request a report of the examination. By doing so, he waives any privilege he may

81
Sec. 24[c], Rule 130, Rules of Court
82
298 SCRA 322
83
Sec.1,Rule 28, Supra.

34
 have in that action regarding the testimony of every other person who has
examined him in respect of the same examination.84

CASE: KROHN VS. CA85

The treatise presented by petitioner on the privileged nature of the communication
between physician and patient, as well as the reasons therefor, is not doubted. Indeed,
statutes making communications between physician and patient privileged are intended to
inspire confidence in the patient and encourage him to make a full disclosure to his
physician of his symptoms and condition. Consequently, this prevents the physician from
making public information that will result in humiliation, embarrassment, or disgrace to
the patient. For, the patient should rest assured with the knowledge that the law
recognizes the communication as confidential, and guards against the possibility of his
feelings being shocked or his reputation tarnished by their subsequent disclosure. The
physician-patient privilege creates a zone of privacy, intended to preclude the humiliation
of the patient that may follow the disclosure of his ailments. Indeed, certain types of
information communicated in the context of the physician-patient relationship fall within
the constitutionally protected zone of privacy, including a patient’s interest in keeping his
mental health records confidential. Thus, it has been observed that the psychotherapist-
patient privilege is founded upon the notion that certain forms of antisocial behavior may
be prevented by encouraging those in need of treatment for emotional problems to secure
the services of a psychotherapist.

Petitioner’s discourse while exhaustive is however misplaced. Lim v. Court of Appeals

clearly lays down the requisites in order that the privilege may be successfully invoked:
(a) the privilege is claimed in a civil cases; (b) the person against whom the privilege is
claimed is one duly authorized to practice medicine, surgery or obstetrics; (c) such person
acquired the information while he was attending to the patient in his professional
capacity; (d) the information was necessary to enable him to act in that capacity; and, (e)
the information was confidential and, if disclosed, would blacken the reputation
(formerly character) of the patient."

In the instant case, the person against whom the privilege is claimed is not one duly
authorized to practice medicine, surgery obstetrics. He is simply the patient’s husband
who wishes to testify on a document executed by medical practitioners. Plainly and
clearly, this does not fall within the claimed prohibition. Neither can his testimony be
considered a circumvention of the prohibition because his testimony cannot have the
force and effect of the testimony of the physician who examined the patient and executed

84
Sec. 4 Rule 28, ibid.
85
G.R. No. 108854. June 14, 1994

35
the report.

Counsel for petitioner indulged heavily in objecting to the testimony of private

respondent on the ground that it was privileged. In his Manifestation before the trial court
dated 10 May 1991, he invoked the rule on privileged communications but never
questioned the testimony as hearsay. It was a fatal mistake. For, in failing to object to the
testimony on the ground that it was hearsay, counsel waived his right to make such
objection and, consequently, the evidence offered may be admitted.

: red

Priest/ minister-penitent privilege

1. Another privileged communication under the rules is as follows:
“SEC. 24 Disqualification by reason of privileged
communication.- The following persons cannot testify as to matter
learned in confidence in the following cases:
xxx
(d) A minister or priest cannot, without the consent of the
person making the confession, be examined as to any confession to
or any advice given by him in his professional character in the
course of discipline enjoined by the church to which the priest or
minister or priest belongs;
x x x”
2. The person making the confession holds the privilege, and the priest or minister
hearing the confession in his professional capacity is prohibited from making a
disclosure of the confession without the consent of the person confessing.
The privilege also extends not only to a confession made by the penitent
but also to any advice given by the minister or priest. The confession and the
advice must be made or given pursuant to the course of discipline of the
denomination or sect to which the minister or priest belongs.86 Thus, the minister
or priest must be duly ordained or consecrated by his sect.

3. Not every communication made to a minister or priest is privileged,. The

communication must be made pursuant to confessions of sins.87
As clearly provided in the rule, the advice given as a results of the confession
must be made in the minister’s “Professional character”88, or in his “spiritual”

86
Sec. 24[d], Rule 130, Rules of Court
87
Wigmore on Evidence, §848
88
Sec. 24 [d], Supra

36
 capacity. Accordingly, where the penitent discussed business arrangement with
the priest, the privilege does not apply.89

Privileged communications to public officers

1. As to privileged communication to public officers, the relevant rule declares:

“SEC. 24 Disqualification by reason of privileged communication.-

The following persons cannot testify as to matter learned in confidence
in the following cases:
xxx

(e) A public officer cannot be examined during his term of officer or

afterwards, as to communications made to him in official confidence,
when the court findings that the public interest would suffer by the
disclosure.”

2. Under the above rule, communication made to a public officer in official

confidence are privileged when the court finds that the disclosure would adversely
affect the public interest. It is the interest of the public that is sought to be
protective by the rule. Hence, the disclosure or non- disclosure is not dependent
on the will of the officer but on the determination by a competent court. The
privilege may be invoked not only during the team of the public officer but also
afterward.90
3. National security matters and state secrets are, of course, confidential and a court
will most likely uphold the privilege. A society mat not always be able to conduct
its business with total openness and matters affecting national interest must not
be divulged.91

Executive privilege; Presidential communication privilege

1. The concept of “executive privilege” and its origins were elucidated in sufficient
detailed in Senate of the Philippines v. Ermita92 In relation to its American
origins, the privilege has been described as “the power of the government to
withhold information form the public, the counter, and congress.”

2. The doctrine of the executive privilege found recognition in the 1995 case of
Almonte v. Vasquez.93 Here, the court acknowledges that there are certain types
of information which the government may withhold from the public like military,

89
U.S. v. Gordon, 493 F. Supp. 822[7th Cir. 1987]
90
Sec. 24 [e], ibid.
91
Guong v. U.S., 860 F. 2d 1063 [Fed. Cir 1988]
92
488 SCRA 1
93
244 SCRA 286

37
 diplomatic and national security secrets. Alluding to foreign jurisprudence, it was
ruled that the president and those who assit him must be free to explore
alternatives in the process of shaping policies and making decisions and to do so
in a way many would be unwilling to express except privately.
3. Chavez v. PCGG94 ruled that there is a privilege against disclosure on certain
matters involving state secrets regarding the following:
(a) Military;
(b) Diplomatic; and
(c) Other national security matters.
Again, in Chavez v. Public Estates Authority95, it was similarly held that
secrets involving military, diplomatic, and national security matters, and
information on investigations of crimes by law enforcement agencies
before the prosecution of the accused were exempted from the right to
information. The right to information does not also extend to presidential
conventions, correspondences, and discussions in closed-door cabinet
meetings.
4. The constitution of the Philippines recognizes the right of the people to
information on matters of public concern and guarantees access to official
records, documentation and papers pertaining to official acts, transactions, or
decisions as well as to government research data used as basis for policy
development, subject to such limitations as may be provided by law.96
What matters may be disclosed in relation to the right to information on matters of
public concern?
This was actually one of the issues sought to be resolved in AKBAYAN v. Aquino
(558 SCRA 468). The petitioners in the case a tapestry of various personalities like
citizens, tax- payers, congressmen including non- government organization,
sought via a petition for mandamus and prohibition to obtain from respondents in
the persons various government functionaries, the full text of the Japan-
Philippines Economic Partnership Agreement (JPEPA), information which the
government previously refused the disclose. The petitioners assert among others,
that the refusal of the government to disclose the documents bearing on the
JPEPA violates their right to information on matters of public concern, and
contravenes other constitutional provisions on transparency, such as the policy of
full disclosure of all transactions involving public interest. They likewise posit
that non-disclosure of the documents undermines their right to effective and

94
299 SCRA 74
95
384 SCRA 152
96
Sec. 7, Art. III [Bill of Rights], Constitution of the Philippines

38
 reasonable participation in all levels of social, political and economic decision-
making.
Respondents do not dispute that the JPEEPA, as an international trade
agreement, is a matters of public concern but they claimed that a full disclosure of
matters would involve disclosure of diplomatic negotiations which were then in
progress. They assert that diplomatic negotiations are covered by the doctrine of
executive privilege, thus constituting an exception to the right information and the
policy of full public disclosure.
In resolving the conflict claims of the parties, the court first affirmed what it
termed “the well-established jurisprudence that neither the right to information
nor the policy of full disclosure is absolute, there being matters which, albeit of
matters of public concern or public interest, are recognized as privileged in
nature.”
The Court reiterated what it held in previous cases that the information on
inter-government exchanges prior to the conclusion of treaties and executive
agreements may be subject to reasonable safeguards for the sake of national
interest. The Court held that while the final text of the JPEPA may not be left
perpetually confidential since there is a need to discuss the same before it is
approved, the offers exchange by the parties during the negotiations continue to
be privileged, even after the JPEPA is published. Disclosing these exchanges
could impair the ability of the Philippines to deal not only with Japan but with
other foreign governments in future negotiations. Chaves v. PCGG97, that while
the constitutional right to information includes official information on ongoing
negotiations before a final contract, such information does not cover recognized
exceptions like privileged information, military and diplomatic secrets and similar
matters affecting national interest. The matters falling under these exceptions,
according to the Court, cannot be disclosed even if they constitute definite
propositions. Since diplomatic negotiation enjoys a presumptive privilege against
disclosure, petitioners need to sufficiently show the existence of a public interest
sufficient to overcome the privilege. The court concluded with a finding that the
petitioners have failed to present a “sufficient showing of need “in their
arguments.
5. An earlier case, Neri v. Senate Committees on Accountability of Public officers
and Investigation98, similar demonstrates the extent of the right to information on
matters alleged to be of public concern. Romulo Neri, the petitioner in this case,
as then Director of the NEDA, was accordingly said to have discussed with the

97
299 SCRA 744
98
435 SCRA 110, 148

39
 President of the Philippines regarding the ZTE-NBN deal. The petitioner, upon
invitation of the respondents (Senate Committee on Accountability of Public
Officers and Investigations, Senate Committee on National Defense and
Security), testified on the ZTE-NBN contract and the bribe offers in connection
with the deal. When asked on the details of the matters he discussed with the
President after he divulged to the latter the bribe offers, petitioner declined to
disclose the details of their conversation on specifically the following matters:
(a) Whether the President followed up the NBN project;
(b) Whether Neri was dictated upon to follow up the project; and
(c) Whether the President said to go ahead and approve the project after being
told of the alleged bribe.
The Court, in deciding the case, started with the premise recognizing the power of
Congress to conduct in2quiries in aid of legislation, a power which extends even
to public officials. The only way for them to be exempted from the compulsory
process of congressional subpoena is through a valid claim of executive privilege.
The Neri case emphasized the rule that for the claim of executive privilege to be
invoked, there must be a formal claim of the privilege, lodge by the head of the
department which has control of the matter, and that a formal and proper claim of
the privilege requires a “ precise and certain reason” for preserving confidentiality
, but Congress must not require the executive to state the reasons for the claim
with such particularity as to compel the disclosure of the information which the
privilege is meant to protect. This is a matter if respect for a coordinate and co-
equal department. It was ruled that letter of Secretary Ermita to the respondent
satisfies the requirement.

CASE: SECRETARY ERMITA VS SENATE COMMITTEE99:

On April 21, 2007, the Department of Transportation and Communication (DOTC)
entered into a contract with Zhong Xing Telecommunications Equipment (ZTE) for the
supply of equipment and services for the National Broadband Network (NBN) Project in
the amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos). The Project was to
be financed by the People’s Republic of China.
The Senate passed various resolutions relative to the NBN deal. In the September 18,
2007 hearing Jose de Venecia III testified that several high executive officials and power
brokers were using their influence to push the approval of the NBN Project by the
NEDA.
Neri, the head of NEDA, was then invited to testify before the Senate Blue Ribbon. He

99
G.R. No. 180643, March 25, 2008

40
appeared in one hearing wherein he was interrogated for 11 hrs and during which he
admitted that Abalos of COMELEC tried to bribe him with P200M in exchange for his
approval of the NBN project. He further narrated that he informed President Arroyo
about the bribery attempt and that she instructed him not to accept the bribe. However,
when probed further on what they discussed about the NBN Project, petitioner refused to
answer, invoking “executive privilege”.
In particular, he refused to answer the questions on:
(a) whether or not President Arroyo followed up the NBN Project,
(b) whether or not she directed him to prioritize it, and
(c) whether or not she directed him to approve.

He later refused to attend the other hearings and Ermita sent a letter to the senate averring
that the communications between GMA and Neri are privileged and that the
jurisprudence laid down in Senate vs Ermita be applied. He was cited in contempt of
respondent committees and an order for his arrest and detention until such time that he
would appear and give his testimony.

ISSUE:
Are the communications elicited by the subject three (3) questions covered by executive
privilege?

HELD: The communications are covered by executive privilege. The revocation of EO

464 (advised executive officials and employees to follow and abide by the Constitution,
existing laws and jurisprudence, including, among others, the case of Senate v. Ermita
when they are invited to legislative inquiries in aid of legislation.), does not in any way
diminish the concept of executive privilege. This is because this concept has
Constitutional underpinnings. The claim of executive privilege is highly recognized in
cases where the subject of inquiry relates to a power textually committed by the
Constitution to the President, such as the area of military and foreign relations. Under our
Constitution, the President is the repository of the commander-in-chief, appointing,
pardoning, and diplomatic powers. Consistent with the doctrine of separation of powers,
the information relating to these powers may enjoy greater confidentiality than others.
Several jurisprudence cited provide the elements of presidential communications
privilege:

1) The protected communication must relate to a “quintessential and non-

delegable presidential power.”
2) The communication must be authored or “solicited and received” by a close

41
 advisor of the President or the President himself. The judicial test is that an
advisor must be in “operational proximity” with the President.
3) The presidential communications privilege remains a qualified privilege that
may be overcome by a showing of adequate need, such that the information
sought “likely contains important evidence” and by the unavailability of the
information elsewhere by an appropriate investigating authority.
In the case at bar, Executive Secretary Ermita premised his claim of executive privilege
on the ground that the communications elicited by the three (3) questions “fall under
conversation and correspondence between the President and public officials” necessary in
“her executive and policy decision-making process” and, that “the information sought to
be disclosed might impair our diplomatic as well as economic relations with the People’s
Republic of China.” Simply put, the bases are presidential communications privilege and
executive privilege on matters relating to diplomacy or foreign relations.
Using the above elements, we are convinced that, indeed, the communications elicited by
the three (3) questions are covered by the presidential communications privilege. First,
the communications relate to a “quintessential and non-delegable power” of the
President, i.e. the power to enter into an executive agreement with other countries. This
authority of the President to enter into executive agreements without the concurrence of
the Legislature has traditionally been recognized in Philippine jurisprudence. Second, the
communications are “received” by a close advisor of the President. Under the
“operational proximity” test, petitioner can be considered a close advisor, being a
member of President Arroyo’s cabinet. And third, there is no adequate showing of a
compelling need that would justify the limitation of the privilege and of the unavailability
of the information elsewhere by an appropriate investigating authority. Respondent
Committees further contend that the grant of petitioner’s claim of executive privilege
violates the constitutional provisions on the right of the people to information on matters
of public concern.50 We might have agreed with such contention if petitioner did not
appear before them at all. But petitioner made himself available to them during the
September 26 hearing, where he was questioned for eleven (11) hours. Not only that, he
expressly manifested his willingness to answer more questions from the Senators, with
the exception only of those covered by his claim of executive privilege.
The right to public information, like any other right, is subject to limitation. Section 7 of
Article III provides:
The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.

42
Privileged communication under the Rules on Electronic Evidence
Privileged communications apply even to electronic evidence. Under Sec. 3, Rule
3 of the Rules on Electronic evidence, the confidential character of a privileged
communication is not lost soley on the ground that it is in the form of an electronic
document.

Parental and filial privilege (Bar 1998)

1. Two privilege are embodied in sec. 25 of Rule 130, namely (a) the parental
privilege rule: and (b) the filial privilege rule.
Under the parental privilege rule, a parent cannot be compelled to testify against
his child or other direct descendants.
Under the filial privilege rule, a child may not be compelled to testify against his
parents or other direct ascendants.
2. A person, however, may testify against his parents or children voluntarily but if
he refuses to do so, the rule protects him from any compulsion. Said rule applies
to both criminal and civil cases since the rule makes no distinction.100 The rule
states:
“SEC. 25. Parental and filial privilege. – No person may be
compelled to testify against his parents, other direct ascendants,
children or other direct descendants.”

In criminal cases, the Family Code of the Philippines lays down, as a general rule,
policy substantially similar to Sec. 25, Rule 130 of the Rules of Court. Under the
Family Code, no descendant shall be compelled, in a criminal case , to testify
against his parents and grandparents. The code, however, specifically provides for
an exception. The descendant may be compelled to give his testimony in the
following instances:

(a) When such testimony is indispensable in a crime committed against

said descendant, or
(b) In crime committed by one person parent against the other.101
“Art. 215. No descendant shall be compelled, in a criminal case, to testify against his
parents and grandparents, except when such testimony is indispensable in a crime, against
the descendant or by one parent against the other.”

100
Sec.25, Rule 130, Rules of Court
101
Art. 215, Family Code of the Philippines

43
Other privileged Communications not found in the Rules of Court

1. Sec. 24 of Rule 130 deals with the type of disqualification by reason of privileged
communication, to wit: (a) communication between husband and wife; (b)
communication between attorney and client; (c) communication between
physician and patient; (d) Communication between priest and penitent; and (e)
public officers and public interest.

2. There are, however, other privileged matters that are not mentioned under Rule
130. Among them are the following: (a) editors may not be compelled to disclose
the source of published news; (b) voters may not be compelled to disclose for
whom they voted; (c) trade secrets; (d) information contained in tax census
returns; and (e) bank deposits.102

3. Under Art. 233 of the labor Code of the Philippines, information and statements
made at conciliation proceedings shall be treated as confidential.

4. Under Sec.6 of R.A. 9194, amending Sec. 9 of R.A. 9160103 institutions covered
by the law and its officers and employees who communicate a suspicious
transaction to the Anti-Money Laundering Council, are barred from disclosing the
fact of such report, that such report was made and other related information.

102
Air Philippines v. Pennswell, Inc., 560 SCRA 215
103
Anti Money Laundering Act of 2001

44
 N. EXAMINATION OF A WITNESS.

1. The examination of witnesses presented in a trial or hearing shall be done in open

court and under oath or affirmation. The answers of the witness shall be given orally
except if: (a) the witness is incapacitated to speak, or (b) the question calls for a
different mode of answer.104
2. The questions propounded to the witness and his answers thereto shall be recorded.
Also to be recorded are the statements made by the judge, any of the parties or any of
the counsels. In fact, the entire proceedings of the trial or hearing must be recorded.
The recording may be shorthand, stenotype, or any means of recording found suitable
by the court.105
3. The official stenographer, stenotypist, or recorder shall make a transcript of the record
of the proceedings and shall be certified by him as correct. The transcript so prepared
and certified shall be deemed prima facie a correct statement of such proceedings.106

Open court examination; exceptions

1. Sec. 1 of Rule 132 provides for the examination of the witness in open court and,
unless the question call for a different mode, the answer of the witness shall be
given orally. This method allows the court the opportunity to observe the
demeanor of the witness and also allows the adverse party to cross-examine the
witness.
2. There are testimonies that need not be given in open court. Under the Rules on
Summary Procedure, the affidavits of the parties shall constitute the direct
testimonies of the witnesses who executed the same.107
3. Depositions need not be taken in open court. They may be taken before a notary
public108 or before any person authorized to administer oaths.109
4. In a criminal case, either party may utilize the testimony of a witness who is
decease, out of the country, or one who is unavailable or unable to testify despite
the exercise of due diligence, even if the testimony was one used in another case
or proceeding, judicial or administrative, provided the said proceeding involved
the same parties and subject matter and the adverse party had the opportunity to
cross-examine the witness.110

104
Sec. 1, Rule 132, Rules of Court
105
Ibid
106
Ibid
107
Sec. 15, Rule on Summary Procedure
108
Sec. 10, Rule 23, Rules of Court
109
Sec. 14, Rule 23, Rules of Court
110
Sec. 1[f], Rule 115, Rules of Court

45
 5. Under the Judicial Affidavit Rule, the judicial affidavit shall take the place of
direct testimonies of witnesses111

Oath or affirmation:
1. The witness must take either an oath or an affirmation112 but the option to do so is
given to the witness and not to the court.
2. An oath is an outward pledge made under an immediate sense of responsibility to
God, or a solemn appeal to the Supreme Being in attestation of the truth of some
statement113 An affirmation is a substitute for an oath, and is a solemn and formal
declaration that the witness will tell the truth.114
3. Where the witness refuses to take an oath or give any affirmation, the testimony
may be barred115
4. The rule requiring an oath or an affirmation is satisfied when the court takes pains
to impress on the witness the need to testify truthfully and the witness says he
would.116 No special wording is necessary for an affirmation, provided that the
language used is designed to impress upon the individual the duty to tell the
truth.117

Examination of witnesses and record of proceedings

The examination of witnesses presented in trial or hearing shall be done in open court and
under oath or affirmation. The answers of the witnesses shall be given orally except if: (a)
the witness is incapacitated to speak, or (b) the question calls for a different mode of
answer118

Bar 1978
After the accused himself had testified in his defense in a murder case, the trial
judge, over the objection of the fiscal, allowed the defense counsel to file and merely
submit the affidavits of the other witnesses of the accused in lieu of their direct
testimony but subject still to cross-examination by the prosecution. The fiscal thus
filed with the Supreme Court a petition for certiorari and prohibition to nullify the
order of the trial court judge allowing such a procedure. Should the petition be
granted?

111
Sec. 2, Judicial Affidavit Rule
112
Ibid.
113
Black’s Law Dictionary, 5th ed., p.966
114
ibid., 55
115
U.S. vs Fowler, 605 F. 2d 181 [5th Cir. 1979]
116
U.S. vs Salim, 855 F. 2d 944 [2nd Cir. 1988]
117
U.S. vs Kalaydjian, 784. 2d 53 [2d Cir. 1986]
118
Supra.

46
 Suggested answer:
The petition should be granted. The provisions of the Rules of Court require that
the examination of the witnesses shall be done in open court and their answered be
given orally, not in writing unless the exceptions mentioned therein apply to wit: (a)
the witness is incapacitated to speak, or (b) the questions calls for a different mode of
answer.119 None of the exceptions apply to the case under consideration. The court
therefore, acted in excess of jurisdiction amounting to lack of jurisdiction when it
allowed the presentation of the affidavits without an oral examination of the witness.

A. RIGHTS AND OBLIGATIONS OF A WITNESS.

A witness must answer questions, although his answer may tend to establish a claim
against him. However, according to Rule 23, Section 3 of the Rules of Court it is the
right of a witness:

1. To be protected from irrelevant, improper, or insulting questions, and from

harsh or insulting demeanor;

2. Not to be detained longer than the interests of justice require;

3. Not to be examined except only as to matters pertinent to the issue;

4. Not to give an answer which will tend to subject him to a penalty for an offense
unless otherwise provided by law; or

5. Not to give an answer which will tend to degrade his reputation, unless it to be
the very fact at issue or to a fact from which the fact in issue would be
presumed. But a witness must answer to the fact of his previous final
conviction for an offense.

*Note: Under R.A. 6981 (Witness Protection, Security, and Benefit Act), a witness
admitted into the witness protection program cannot refuse to testify or give evidence or
produce books, documents, records or writings necessary for the prosecution of the
offense or offenses for which he has been admitted on the ground of the right against
self-incrimination120

Bar 2005

Under R.A. 8353, one may be charged with and found guilty of qualified rape if
he knew on or before the commission of the crime that he is afflicted with Human
Immuno-Deficiency Virus (HIV)/ Acquired Immune Deficiency Syndrome (AIDS) or

119
Ibid.
120
Sec. 14, R.A. 6981

47
 any other sexually transmissible disease and the virus or disease is transmitted to the
victim. Under Sec. 17(a) of R.A. 8504, the court may compel the accused to submit
himself to a blood test where blood sample would be extracted from his veins to
determine whether he has HIV.

Are the rights of the accused to be presumed innocent of the crime charged, to
privacy, and against self-incrimination violated by such compulsory testing?

Suggested answer:

The rights of the accused are not violated by such tests. This is a settled rule.
There is no testimonial compulsion involved by extracting blood from the accused for
testing purposes (Tijing vs Court of Appeals, 354 SCRA 17). There is hence, no
violation of the right to privacy and the right to be presumed innocent.

ONE-DAY EXAMINATION OF WITNESS RULE [AM 03-1-09-SC]

A witness has to be fully examined in one (1) day only. It shall be strictly adhered to
subject to the courts' discretion during trial on whether or not to extend the direct and/or
cross-examination for justifiable reasons.
Examination of a child witness; live link television
1. The examination of a child witness presented in a hearing or any proceeding shall
be done in open court. Unless the witness is incapacitated to speak, or the
question calls for a different mode of answer, the answers of the witness shall be
given orally.121

The examination in this provision does not refer to the competency examination of the
child pursuant to Sec. 6 of the same rule, but to a situation where the child is already
testifying in court. Under Sec. 6(c), only specified persons are allowed to attend the
competency examination of the child and is obviously not an open court examination.

When the child is testifying, the court may exclude the public and persons who do not
have a direct interest in the case, including members of the press. The order shall be made
if the court determined on the record that to testify in open court would cause
psychological harm to him, hinder the ascertainment of truth, or result in his inability to
effectively communicate due to embarrassment, fear or timidity. The court may also motu
proprio exclude the public from the courtroom if the evidence to be produced during trial
is of such character as to be offensive to decency or public morals. The court may also,
on motion of the accused, exclude the public from trial, except court personnel and the
counsel of the parties.122

121
Sec. 8, Rule on Examination of a Child Witness
122
Sec. 23, ibid.

48
 2. When a child does not understand the English or Filipino language or is unable to
communicate in said languages due to his developmental level, fear, shyness,
disability, or other similar reason, an interpreter whom the child can understand
and who understands the child may be appointed by the court, motu proprio or
upon motion, to interpret for the child.123 If a witness or member of the family of
the child is the only person who can serve as an interpreter for the child, he shall
not be disqualified and may serve as the interpreter of the child. The interpreter,
however, who is also a witness, shall testify ahead of the child.124

3. The court may, motu proprio or upon motion, appoint a facilitator if it determines
that the child is unable to understand or respond to questions asked. The facilitator
may be a child psychologist, psychiatrist, social worker, guidance counselor,
teacher, religious leader, parent, or relative.125

4. (a) A child testifying at a judicial proceeding or making a deposition shall have

the right to be accompanied by one or two persons of his own choosing to provide
him emotional support.
(1) Both support persons shall remain within the view of the child during his
testimony.
(2) One of the support persons may accompany the child to the witness
stand, provided the support person does not completely obscure the
child from the view of the opposing party, judge, or hearing officer.
(3) The court may allow the support person to hold the hand of the child or
take other appropriate steps to provide emotional support to the child in
the course of the proceedings.
(4) The court shall instruct the support persons not to prompt, sway, or
influence the child during his testimony.

(b) If the support person chosen by the child is also a witness, the court may
disapprove the choice if it is sufficiently established that the attendance of the
support person during the testimony of the child would pose a substantial risk
of influencing or affecting the content of the testimony of the child.
(c) If the support person who is also a witness is allowed by the court, his
testimony shall be presented ahead of the testimony of the child.126

5. An application may be made for the testimony of the child to be taken in a room
outside the courtroom and be televised to the courtroom by live-link television.

123
Sec. 23, ibid.
124
Ibid.
125
Ibid.
126
Sec. 11, ibid.

49
 The application may be made by the prosecutor, counsel or guardian ad litem at
least five (5) days before the trial date.127

The court may order that the testimony of the child be taken by live-link television if
there is a substantial likelihood that the child would suffer trauma from testifying in the
presence of the accused, his counsel or the prosecutor as the case may be. The trauma
must be of a kind which would impair the completeness or truthfulness of the testimony
of the child.128

If it is necessary for the child to identify the accused at trial, the court may allow the child
to enter the courtroom for the limited purpose of identifying the accused, or the court may
allow the child to identify the accused by observing the image of the latter on a television
monitor129

6. The testimony of the child shall be preserved on videotape, digital disc, or other
similar devices which shall be made part of the court record and shall be subject
to a protective order130.

7. To shield the child from the accused, the court may allow the child to testify in
such a manner that the child cannot see the accused by testifying through one-way
mirrors, and other devices.131

8. Any record regarding a child shall be confidential and kept under seal. Except
upon written request and order of the court, a record shall only be released to the
following:

(1) Members of the court staff for administrative use;

(2) The prosecuting attorney;
(3) Defense counsel;
(4) The guardian ad litem;
(5) Agents of investigating law enforcement agencies; and
(6) Other persons as determined by the court.132

9. Whoever publishes or causes to be published in any format the name, address,

telephone number, school, or other identifying information of a child who is or is
alleged to be a victim or accused of a crime or a witness thereof, or an immediate
family of the child shall be liable to the contempt power of the court133

127
Sec. 25(a), ibid
128
Sec. 25(f), ibid
129
Sec. 25(g)(3), ibid
130
Sec. 25(h), ibid.
131
Sec. 26, ibid
132
Sec. 31(a), ibid
133
Sec. 31(d), ibid

50
 10. Where the youthful offender has been charged before any city, or provincial
prosecutor or any municipal judge and the charges have been dropped, all the
records of the case shall be considered as privileged and may not be disclosed
directly or indirectly to anyone for any purpose whatsoever. If he is charged and
acquitted or the case is dismissed, the records are also privileged, as a rule.134

The youthful offender, who fails to acknowledge the case against him or to recite any fact
related thereto in response to any inquiry made to him for any purpose, shall not be held
under any provision of law to be guilty of perjury or of concealment or
misrepresentation.135

B. ORDER IN THE EXAMINATION OF AN INDIVIDUAL WITNESS.

Order in the examination of an individual witness. — The order in which the individual
witness may be examined is as follows:
(a) Direct examination by the proponent;
(b) Cross-examination by the opponent;
(c) Re-direct examination by the proponent;
(d) Re-cross-examination by the opponent.136

1. Direct examination. — Direct examination is the examination-in-chief of a

witness by the party presenting him on the facts relevant to the issue.137

2. Cross-examination; its purpose and extent. — Upon the termination of the direct
examination, the witness may be cross-examined by the adverse party as to many
matters stated in the direct examination, or connected therewith, with sufficient
fullness and freedom to test his accuracy and truthfulness and freedom from
interest or bias, or the reverse, and to elicit all important facts bearing upon the
issue.138

3. Re-direct examination; its purpose and extent. — After the cross-examination of

the witness has been concluded, he may be re-examined by the party calling him,
to explain or supplement his answers given during the cross-examination. On re-
direct-examination, questions on matters not dealt with during the cross-
examination, may be allowed by the court in its discretion.139

134
Sec. 31[g], ibid
135
Sec. 31[g], ibid.
136
Ibid.
137
Sec. 5, ibid.
138
Sec. 6, ibid.
139
Sec. 7, ibid.

51
 4. Re-cross-examination. — Upon the conclusion of the re-direct examination, the
adverse party may re-cross-examine the witness on matters stated in his re-direct
examination, and also on such other matters as may be allowed by the court in its
discretion.140

Order of trial in civil cases

Section 5. Order of trial. — Subject to the provisions of section 2 of Rule 31, and unless
the court for special reasons otherwise directs, the trial shall be limited to the issues stated
in the pre-trial order and shall proceed as follows:

(a) The plaintiff shall adduce evidence in support of his complaint;

(b) The defendant shall then adduce evidence in support of his defense,
counterclaim, cross-claim and third-party complaints;
(c) The third-party defendant, if any, shall adduce evidence of his defense,
counterclaim, cross-claim and fourth-party complaint;
(d) The fourth-party, and so forth, if any, shall adduce evidence of the material
facts pleaded by them;
(e) The parties against whom any counterclaim or cross-claim has been pleaded,
shall adduce evidence in support of their defense, in the order to be
prescribed by the court;
(f) The parties may then respectively adduce rebutting evidence only, unless the
court, for good reasons and in the furtherance of justice, permits them to
adduce evidence upon their original case; and
(g) Upon admission of the evidence, the case shall be deemed submitted for
decision, unless the court directs the parties to argue or to submit their
respective memoranda or any further pleadings.

If several defendants or third-party defendants, and so forth, having separate defenses

appear by different counsel, the court shall determine the relative order of presentation of
their evidence.141

Order of trial in criminal cases

Section 11. Order of trial. — The trial shall proceed in the following order:
(a) The prosecution shall present evidence to prove the charge and, in the proper
case, the civil liability.
(b) The accused may present evidence to prove his defense, and damages, if any,
arising from the issuance of a provisional remedy in the case.

140
Sec. 8, ibid
141
Sec. 5, Rule 30, Rules of Court

52
 (c) The prosecution and the defense may, in that order, present rebuttal and sur-
rebuttal evidence unless the court, in furtherance of justice, permits them to
present additional evidence bearing upon the main issue.
(d) Upon admission of the evidence of the parties, the case shall be deemed
submitted for decision unless the court directs them to argue orally or to
submit written memoranda.
(e) When the accused admits the act or omission charged in the complaint or
information but interposes a lawful defense, the order of trial may be
modified.142
C. WHAT ARE LEADING AND MISLEADING QUESTIONS

Leading questions:
1. A leading question is one that is framed in such a way that the question indicates
to the witness the answer desired by the party asking the question. In the words of
Sec. 10 or Rule 132, it is a question “which suggests to the witness the answer
which the examining party desires.”
2. Leading questions are not appropriate in direct and re-direct examinations
particularly when the witness is asked to testify about a major element of the
cause of action or defense. Leading questions are allowed in cross and re-cross
examination.
3. Leading questions are allowed in direct examination in the following instances:
a. On preliminary matters
b. When the witness is ignorant, or a child of tender years, or is feeble
minded or a deaf mute and there is difficulty in getting direct and
intelligible answers from such witnesses
c. When the witness is a hostile witness
d. When a witness is an adverse party, or an officer, director, or managing
agent of a corporation, partnership, or association which is an adverse
party.143
*Note: Sec. 20 of the Rule on Examination of Child Witnesses has modified Sec. 10,
Rule 132 of the Rules of Court, in so far that it allows leading questions in all stages of
examination of a child under the condition that it will further the interest of justice.
Example:
The fact situation is a robbery case. The accused claims innocence and that a
couple of hours after the alleged robbery, he is arrested by the police while in the park
with his children. The defense counsel calls the accused to the stand.

142
Sec. 11, Rule 119, ibid.
143
Sec. 10, Rule 132, Rules of Court

53
 Q: What were you doing in the park?
A: I was taking a stroll with my two adolescent children.

Q: While you were in the park with your children, the police officers arrived to
arrest you, is that true?

The question is leading. It suggests the next event which the witness should testify
to. The attorney could convert the question into a non-leading one by taking the
suggestive element out of the question. Thus, “What happened if any, while you and your
children were at the park?”

Misleading questions:

A misleading question is one which assumes as true a fact not yet testified to by
the witness, or contrary to that which he has previously stated. It is not allowed144 in any
type of examination.

Example:
Counsel: “You testified that you and the accused were in a car bound for
Baguio City. How fast were you driving?”

This question is objectionable as misleading where there was no previous testimony from
the witness that he was driving the car. The question assumes a fact not yet in evidence.

144
Ibid.

54
Impeachment of a Witness

Impeachment is basically a technique employed usually as part of the cross-examination

to discredit a witness by attacking his credibility. Destroying credibility is vital because it
is linked with a witness’ ability and willingness to tell the truth145

To “impeach” a witness means to discredit the witness’s testimony. Impeaching a witness

is a fundamental right on cross-examination. Since the witness’s credibility is always in
issue, it is never beyond the permissible scope of cross-examination.146

Guideposts in Impeaching a Witness:

1. The impeachment of a witness is to be done by the party against whom the
witness is called;147
2. As a rule, the party producing the witness is barred from impeaching his own
witness;148
Exceptions:
a. If the witness is unwilling or hostile, the party calling him may be allowed by the
court to impeach the witness. Whether or not a witness is hostile, is addressed to
judicial evaluation and the declaration shall be made only if the court is satisfied
that the witness possesses an interest adverse to the party calling him or there is
adequate showing that the reluctance of the witness is unjustified, or that he
misled the party in calling him as a witness149

b. A party may also be allowed to impeach his own witness when said witness is an
adverse party or is an officer, director, or managing agent of a corporation,
partnership or association which is an adverse party.150

3. It is also improper for the party calling him the witness to present evidence of
the good character of his own witnesses. The same is allowed only if the
character of the witness has been impeached.151 Thus, evidence of the good
character of the witness is allowed only to rebut the evidence offered to
impeach the witness’s character. If he has been impeached, then he can be
rehabilitated by evidence of his good character.

D. METHODS OF IMPEACHING OF ADVERSE PARTY’S WITNESS

145
Riano, p. 373
146
Gilbert, Evidence, Sec. 991
147
Sec. 11, Rule 132, Rules of Court
148
Sec. 12, ibid.
149
ibid.
150
ibid.
151
Sec. 14, ibid.

55
Section 11, Rule 132 of the Rules of Court specifies the manner on impeaching the
witness of the adverse party.

Section 11. Impeachment of adverse party's witness. — A witness may be impeached by

the party against whom he was called, by contradictory evidence, by evidence that his
general reputation for truth, honestly, or integrity is bad, or by evidence that he has made
at other times statements inconsistent with his present, testimony, but not by evidence of
particular wrongful acts, except that it may be shown by the examination of the witness,
or the record of the judgment, that he has been convicted of an offense.

Under the above rule, a witness may be impeached through the following modes:

(i) By contradictory evidence

Fairness demands that the impeaching matter be raised in the cross-examination of the
witness sought to be impeached by allowing him to admit or deny a matter to be used as
the basis for impeachment by contradictory evidence and the basis of this mode of
impeachment is a declaration made by the witness in his direct testimony.152

When a witness whose attention has been called during cross-examination to an alleged
contradictory statement, denies the same, another witness may be asked the direct
question whether the particular words denied were in fact used by the former
witnesses.153

The content of a witness’s testimony may be rebutted by proof of facts contrary thereto.
Such rebuttal evidence may discredit only a portion of the witness’s testimony and does
not necessarily affect her credibility as a witness per se.154
The method of impeachment raises no evidentiary problems as long as the contradictory
evidence is relevant to the issues in the case.155

A witness cannot be impeached by contradictory evidence on collateral matters, unless

said matters are relevant to the issue or tend in some way to prove any issue of fact under
inquiry.156

Collateral matters here is a matter on which evidence could not have been introduced for
any relevant purpose, because in such a case the proof of this contradiction would be a

152
Riano, p. 375

153
5 Jones Sec. 23:30
154
Gilbert, Evidence, Sec. 995
155
ibid, Sec. 997
156
4 Jones, p. 129

56
new matter, and thus would simply use valuable time and tend to confuse the issues
without any valuable result.157

A witness’ s entire testimony may be discredited because her credibility as a witness is

suspect. The facts that the law recognizes as sufficient to attack credibility are as follows:
(1) demonstrating poor character for truthfulness; (b) establishing bias or interest; and (c)
establishing prior inconsistent statements.158

This mode of impeachment may also be used to contradict conclusions made by expert
witnesses during their testimonies.159

(ii) By evidence that his general reputation for truth, honesty or integrity is bad;

Witnesses (party or nonparty) who take the stand put their character for honesty or
veracity in issue; therefore, they can be impeached by evidence that their character is
such that they may lie under oath.160 Proof of a witness’s character or reputation is a
recognized means of impeaching him or discrediting his testimony, subject to the
restrictions against impeaching one’s own witnesses.161

This mode of impeachment is a direct attack upon the general credibility of a witness.
Preliminarily, it is necessary to show that the impeaching witness knows the general
character of the person to be impeached or his reputation for truth and veracity in the
community in which he has resided, or in the society in which he moves.162

When a witness testifies, he puts his credibility at issue because the weight of his
testimony depends upon his credibility. One way to impair his credibility is by showing a
not so pleasing reputation. Hence, the prevailing rule allows his impeachment by
evidence that he has a bad general reputation.

Evidence of a bad reputation for the purpose of impeachment should refer only to the
following specific aspects: (a) for truth; (b) for honesty; or (c) for integrity.163 These are
aspects of a person’s reputation that are relevant to his credibility.

It should be noted that Sec. 11 does not allow impeachment by evidence of bad character
but by bad reputation.

In a catena of cases, “Character” is made up of the things an individual actually is and

does, whereas “reputation” is what people think an individual is and what they say about
him.
157
Salonga, Evidence, p. 680
158
.supra, Secs. 1001-1002
159
Riano, p. 376
160
Gilbert, ibid, Sec. 1002
161
Ibid.
162
5 Jones 207
163
Sec.11, Rule 132, Rules of Court

57
Be it noted too that the party calling a witness, cannot initiate proof of his good character.
Because a witness is presumed to be truthful and of good character, the party presenting
him does not have to prove he is good because he is presumed to be one. Any question
contrary to this procedure will give rise to a valid objection of “ improper character
evidence.”

This basic procedural rule is supported by the provisions of Sec. 14 of Rule 132:

Section 14. Evidence of good character of witness. — Evidence of the good character of
a witness is not admissible until such character has been impeached.

The rule that bars evidence of the good character of the witness, who has not yet been
impeached, has reference only to a mere witness. It does not refer to an accused in a
criminal case. In a criminal case, the accused may prove his good moral character
relevant to the offense charged even before his character is attacked.164

(iii) By evidence that he has made at other times statements inconsistent with his
present testimony.

E. HOW A WITNESS IS IMPEACHED BY EVIDENCE OF INCONSISTENT

STATEMENTS?

Impeachment by prior inconsistent statement is the most commonly used method because
of its simplicity and the impact it makes when properly used.

Prior inconsistent statements are statements made by a witness on an earlier occasion,

which contradict the statements he makes during the trial. The relevant rule provides:

Section 13. How witness impeached by evidence of inconsistent

statements. — Before a witness can be impeached by evidence that he has
made at other times statements inconsistent with his present testimony, the
statements must be related to him, with the circumstances of the times and
places and the persons present, and he must be asked whether he made
such statements, and if so, allowed to explain them. If the statements be in
writing they must be shown to the witness before any question is put to
him concerning them.165

164
Sec. 51 (a)(1), Rule 130, Rules of Court
165
Rule 132, Rules of Court

58
The statement to be contradicted must be related to material facts and should tend to
disprove the case of the party by whom the witness is called.166 Immaterial discrepancies
or differences in the statements or witnesses do not affect their credibility.167

The process of impeachment may be employed in two different stages. First, the facts
discrediting the witness or his testimony may be elicited from the witness himself upon
cross-examination. The second, the facts discrediting the witness are proved by extrinsic
evidence, i.e., the adverse party in rebuttal proves by another witness or documentary
evidence, the facts discrediting the testimony of the witnesses under attack.168

To effectively impeach a witness by prior inconsistent statements requires laying the

proper foundation, commonly referred as “laying the predicate”, for the impeachment to
prosper. The elements of this foundation are clearly spelled out in Sec. 13 of Rule 132.

The underlying purpose for laying the predicate is to allow the witness to admit or deny
the prior statement and afford him an opportunity to explain the same. Non-compliance
with the foundational elements for this mode of impeachment will be a ground for an
objection based on “improper impeachment.”

The requirement for “laying the foundation” aims: (1) to avoid unfair surprise to the
adversary; (2) to save time, as an admission by the witness may take the extrinsic proof
unnecessary; and (3) to give the witness, infairness to him, a chance to explain the
discrepancy.169

The impeachment process is not complete where the witness is not given an opportunity
to explain the contradictory statements.170 A witness cannot be impeached for allegedly
making inconsistent statements in Court and before police authorities where the alleged
statement before the police was neither offered in evidence nor shown to the witness so
she can explain the discrepancies.171
Prior contradictory statements of a witness which are admissible as independent evidence
may be shown without laying the predicate, e.g., where said testimony contained
admissions against interest. Where defendant made certain admissions proving his
liability, plaintiff may testify on direct examination, without the need of foundation, on
said admission. The admissions are presented as original or independent evidence, i.e, the
previous statements are offered as evidence of admission and not merely to impeach him.
But this must be offered in evidence in chief and not on rebuttal.172

166
US vs. Lasada, 18 Phil.90; 58 Am Jr 45
167
People vs Olfindo, 47 Phil.1
168
supra
169
Cleary, 72; People vs. Rainford
170
People vs Resabal
171
People vs Molo, 88 SCRA 22 (1979)
172
Ysmael & Co. vs Hoskins, 40 Phil. 132

59
If the statements be in writing, the reading of the prior inconsistent statement must be
verbatim, not a mere summary.

In People v. De Guzman,173 it settled the issue that the mere presentation of the prior
declarations of the witness without the same having been read to him while testifying in
court is insufficient for the desired impeachment of his testimony, if he was not given the
ample opportunity to explain the supposed discrepancy. This rule is founded, not only
upon common sense, but is essential to protect the character of the witness.

Where the prosecution did not object to the presentation of a document which was
offered expressly for impeachment purposes without the prosecution witness being given
an opportunity to give his own explanation of the apparent contradiction in his testimony,
the court had no alternative but to admit the evidence and determine, if it can, possible
reconciliation on the basis of logic and common experience.174

Other Modes of Impeachment aside from Section 11:

(1.) By involving him during cross-examination in contradiction;
(2.) By showing the impossibility or improbability of his testimony;
(3.) By proving action or conduct of the witness inconsistent with his testimony e.g.
Failure to make outcry in Rape case; and
(4.) By showing bias, interest or hostile feeling against the adverse party.

No impeachment by evidence of particular wrongful acts

A witness cannot be impeached by evidence of particular wrongful acts except evidence
of his final conviction of an offense as disclosed by his examination or the record of the
judgment.175

Examining another witness to elicit from his lips the prior conviction of another witness
is not the correct procedure, unless the witness is one who is competent (like an official
custodian of records) to present in court the record of conviction.176

Impeachment of the adverse party as witness

That the witness is the adverse party does not necessarily mean that the calling party will
not be bound by the former’s testimony. Unlike an ordinary witness, the calling party
may impeach an adverse witness in all respects as if he had been called by the adverse
party, except by evidence of his bad character. Under a rule permitting the impeachment

173
288 SCRA 346, 354
174
People vs Relucio, 86 SCRA 22
175
Sec. 11, ibid
176
Riano, p. 382

60
of an adverse witness, although the calling party does not vouch for the witness’ veracity,
he is nonetheless bound by his testimony if it is not contradicted or remains unrebutted.177

F. JUDICIAL AFFIDAVIT RULE (A.M. 12-8-8-SC)

Rationale for the J.A.R.

The most basic reason for the adoption of the Rule is to decongest the courts of
cases and to reduce delays in the disposition of cases. Due to these delays, the Supreme
Court declares in the “whereas clause” of the Rule, that “few foreign businessmen make
long-term investments in the Philippines because its courts are unable to provide ample
and speedy protection to their investments, keeping its people poor.”

The “whereas clause” of the Judicial Affidavit Rules likewise affirms that “case
congestion and delays plague most courts in cities, given the huge volume of cases filed
each year, and the slow cumbersome adversarial system that the judiciary has in place.”
The Rule also recognizes that “about 40% of criminal cases are dismissed annually owing
to the fact that complainants simply give up coming to court after repeated
postponements.”

Effectivity of the J.A.R.

By the terms of the Rule, the Judicial Affidavit Rule took effect on January 1,
2013 following its publication in two newspapers of general circulation not later than
September 15, 2012.178

Scope of the Judicial Affidavit Rule

1. The Rule shall apply to all (a) actions, (b) proceedings, or (c) incidents requiring
the reception of evidence179
2. The Rule, in effect, applies to all courts, other than the Supreme Court. It also
applies to certain non-judicial bodies. The Rule specifies the following courts and
bodies:
(a) Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal
Trial Courts, Municipal Circuit Trial Courts, and the Shari’a Circuit
Courts, but shall not apply to small claims cases;
(b) Regional Trial Courts and Shari’a District Courts;
(c) Sandiganbayan, Court of Tax Appeals, Court of Appeals and Shari’a
Appellate Courts;

177
Ibid. p. 384-385).
178
Sec. 12, Judicial Affidavit Rule
179
Sec. 1, ibid.

61
 (d) Investigating officers and bodies authorized by the Supreme Court to
receive evidence, including the Integrated Bar of the Philippines; and
(e) Special courts and quasi-judicial bodies, whose rules of procedure are
subject to disapproval of the Supreme Court.180
Significance of the use of a judicial affidavit; Exhibits

1. The judicial affidavit shall take the place of direct testimonies of witnesses.181 The
rule, therefore, modifies the existing practice in the conduct of a trial and
reception of evidence by doing away with the usual oral examination of a witness
in a direct examination.
2. To be attached to the judicial affidavit are the documentary or object evidence of
the parties which shall be marked as Exhibits A,B,C and so on in the case of the
complainant or plaintiff. In the case of the respondent or the defendant, the
evidence shall be marked as Exhibits 1,2,3, and so on.182
3. The original document or object evidence need not be attached to the judicial
affidavit. The party or witness may keep the same in his possession after the
exhibit has been identified, marked as an exhibit, and authenticated. He must,
however, warrant in his judicial affidavit that the copy or reproduction attached is
a faithful copy or reproduction of the original.183
Aside from the above requirement, the party or witness is required to bring the
original document or object evidence for comparison with the attached copy,
reproduction, or pictures, during the preliminary conference. In case of failure to
bring the originals for comparison, the attached copy, reproduction, or pictures
shall not be admitted.184

Applicability of the Rule to criminal cases

1. The Rule applies to criminal cases where the maximum of the imposable penalty does not
exceed six years.185 In other cases, the use of the judicial affidavits will now depend on
the accused. The Rule will apply, irrespective of the penalty involved, where the accused
agrees to the use of judicial affidavits.186
2. With respect to the civil aspect of the criminal action, the Rule shall apply, irrespective of
the penalty involved.187

180
Sec. 1, ibid.
181
Sec. 2 (a)(1), ibid.
182
Sec. 2 (a)(2), ibid
183
Sec. 2(b), ibid.
184
Ibid
185
Sec. 9(1), ibid.
186
Sec. 9(2), ibid
187
Sec. 9(3), ibid.

62
Contents of the judicial affidavit
A judicial affidavit shall be prepared in the language known to the witness and, if
not in English or Filipino, accompanied by a translation in English or Filipino, and shall
contain the following:

(a) The name, age, residence or business address, and occupation of the witness;

(b) The name and address of the lawyer who conducts or supervises the examination
of the witness and the place where the examination is being held;

(c) A statement that the witness is answering the questions asked of him, fully
conscious that he does so under oath, and that he may face criminal liability for false
testimony or perjury;

(d) Questions asked of the witness and his corresponding answers, consecutively
numbered, that:

1. Show the circumstances under which the witness acquired the facts upon
which he testifies;
2. Elicit from him those facts which are relevant to the issues that the case
presents; and
3. Identify the attached documentary and object evidence and establish their
authenticity in accordance with the Rules of Court;

(e) The signature of the witness over his printed name; and

(f) A jurat with the signature of the notary public who administers the oath or an
officer who is authorized by law to administer the same.188

Effect of non-compliance with the content requirements of Sec. 3 of the Rule

A judicial affidavit which does not conform to the content requirements of Sec. 3
of the judicial affidavit rule shall not be admitted by the court in evidence189

The relevant provision, however, does not absolutely bar the submission of a
complaint replacement judicial affidavit as long as the replacement shall be submitted
before the hearing or trial, and provided further that the following requisites are met:
(The same remedy applies for late submissions)
(a) The submission shall be allowed only once;
(b) The delay is for a valid reason;
(c) The delay would not unduly prejudice the opposing party; and

188
Sec. 3, ibid.
189
Sec. 10(c), ibid

63
 (d) The public or private counsel responsible for the preparation and submission of
the affidavit pays a fine of not less than 1,000.00 php no more than 5,000.00 php
at the discretion of the court190

Filing of service of the judicial affidavit and exhibits; modes of service

1. The parties shall file with the court and serve on the adverse party, personally or
by licensed courier service, not later than five days before pre-trial or preliminary
conference or the scheduled hearing with respect to motions and incidents.191
2. In criminal cases, the prosecution shall submit the judicial affidavits of its
witnesses not later than five days before the pre-trial, serving copies if the same
upon the accused. The complainant or public prosecutor shall attach to the
affidavits such documentary or object evidence as he may have, marking them as
Exhibits A, B, C, and so on.192 No further judicial affidavit, documentary, or
object evidence shall be admitted at the trial. This means that even before the trial,
the prosecution has to lay down on the table, all its evidence- testimonial,
documentary, and object.
3. Since the accused is already aware of the evidence of the prosecution, he has the
options to submit or not to submit his judicial affidavits. If the accused desires to
be heard on his defense after receipt of the judicial affidavits of the prosecution,
he shall have the option to submit his judicial affidavit as well as those of his
witnesses to the court within ten days from receipt of such affidavits and serve a
copy of each on the public and private prosecutor, including his documentary and
object evidence previously marked as Exhibits 1, 2, 3, and so on. These affidavits
shall serve as direct testimonies of the accused and his witnesses when they
appear before the court to testify.193

Effects of failure to submit the judicial affidavits and exhibits on time

Section 10. Effect of non-compliance with the judicial Affidavit Rule. - (a) A party who
fails to submit the required judicial affidavits and exhibits on time shall be deemed to
have waived their submission. The court may, however, allow only once the late
submission of the same provided, the delay is for a valid reason, would not unduly
prejudice the opposing party, and the defaulting party pays a fine of not less than P
1,000.00 nor more than P 5,000.00 at the discretion of the court.

190
Sec. 10(a), ibid.
191
Sec. 2(a), ibid.
192
Ibid.
193
Sec. 9(c), ibid

64
 (b) The court shall not consider the affidavit of any witness who fails to appear at the
scheduled hearing of the case as required. Counsel who fails to appear without valid
cause despite notice shall be deemed to have waived his client's right to confront by
cross-examination the witnesses there present.

(c) The court shall not admit as evidence judicial affidavits that do not conform to the
content requirements of Section 3 and the attestation requirement of Section 4 above. The
court may, however, allow only once the subsequent submission of the compliant
replacement affidavits before the hearing or trial provided the delay is for a valid reason
and would not unduly prejudice the opposing party and provided further, that public or
private counsel responsible for their preparation and submission pays a fine of not less
than P 1,000.00 nor more than P 5,000.00, at the discretion of the court.194

The waiver would mean that a party who failed to submit the judicial affidavit of
a particular witness would have no direct testimony for that witness, and the
documentary, or object evidence integrated with such affidavit could not be identified,
marked as an exhibit, and authenticated. In effect, the exhibit could not be offered in
evidence. If the waiver extends to the required affidavits of all the witnesses of a party
because all the judicial affidavits were not filed and served, then said party is deemed to
have not presented his evidence-in-chief for his case.

Offer of testimony in the judicial affidavit

Instead of offering the oral testimony of the witness, the party presenting the
judicial affidavit of his witness in place of direct testimony shall state the purpose of such
testimony at the start of the presentation of the witness.195

Objections to the testimony in the judicial affidavit; ruling of the court

1. The presentation of the judicial affidavit and the statement of the purpose of the
testimony contained therein will give the adverse party the opportunity to object to the
testimony.

The adverse party may move to disqualify the witness or to strike out his affidavit or any
of the answers found in it on ground of inadmissibility. The court shall promptly rule on
the motion and, if granted, shall cause the marking of any excluded answer by placing it
in brackets under the initials of an authorized court personnel, without prejudice to a
tender of excluded evidence under Section 40 of Rule 132 of the Rules of Court.196

194
Sec.10, ibid.
195
Sec. 6, ibid.
196
ibid.

65
*Note: The term “promptly” should be taken in its literal context and akin to the word
“immediately”, as used in Sec. 38 of Rule 132 of the Rules of Court.

Appearance of the witness at the scheduled hearing:

1. The submission of the judicial affidavit of the witness and the attached exhibits
does not exempt the witness from appearing at the scheduled hearing. The rule
still requires his appearance.197
2. The appearance of the witness is necessary because the adverse party has the right
to cross-examine him. The cross-examination shall be on his judicial affidavit and
on the attached exhibits. After the cross-examination, the party presenting the
witness may also examine him as on re-direct.198
3. A postponement of the cross-examination would be contrary to the spirit of the
rule because the judicial affidavits have been filed and served even before the
scheduled hearing.
4. The questions of the court shall not be confined to mere clarificatory questions.
The Rule mandates the court to take active part in examining the witness to (a)
determine the (i) credibility of the witness and (ii) truth of his testimony; and (b)
elicit the answers that it needs in resolving the case.199

Effect of failure of a witness to appear at the scheduled hearing; failure of counsel to

appear

1. The court shall not consider the affidavit of any witness who fails to appear at the
scheduled hearing of the case as required. Counsel who fails to appear without
valid cause despite notice shall be deemed to have waived his client's right to
confront by cross-examination the witnesses there present.200
2. If the affidavit is not considered, it is as if no judicial affidavit has been executed
by the absent witness. Such witness, hence, shall be deemed as not having given a
direct testimony in the trial.

When there is a need for the issuance of a subpoena

1. A requesting party may avail himself of the issuance of a subpoena ad

testificandum or duces tecum under Rule 21 of the Rules of Court if a witness

197
Sec.10(b), ibid.
198
Sec. 7, ibid
199
Ibid.
200
Ibid.

66
 unjustifiably declines to (a) execute a judicial affidavit, or (b) refuses without just
cause to make the relevant books, documents, or other things under his control
available for copying, authentication, and eventual production in court.201
*Note: The witness referred to is a government employee or official, or a
requested witness, who is neither the witness of the adverse party nor a hostile
witness.202

2. The rules governing the issuance of a subpoena to the witness in this case shall be
the same as when taking his deposition except that the taking of a judicial
affidavit shall be understood to be ex parte.203

Oral offer and objections to exhibits

(a) Upon the termination of the testimony of his last witness, a party shall immediately
make an oral offer of evidence of his documentary or object exhibits, piece by piece, in
their chronological order, stating the purpose or purposes for which he offers the
particular exhibit.204

(b) After each piece of exhibit is offered, the adverse party shall state the legal ground for
his objection, if any, to its admission, and the court shall immediately make its ruling
respecting that exhibit.205

(c) Since the documentary or object exhibits form part of the judicial affidavits that
describe and authenticate them, it is sufficient that such exhibits are simply cited by their
markings during the offers, the objections, and the rulings, dispensing with the
description of each exhibit.206

It is not necessary to describe each exhibit in the offer of evidence. It is sufficient that
such exhibits are simply cited by their markings during the offers, the objections, and the
rulings, dispensing with the description of each exhibit since the documentary or object
exhibits form part of the judicial affidavits that describe and authenticate them.

201
Sec. 5, ibid
202
Sec. 5, ibid
203
Ibid.
204
Sec. 8, ibid.
205
Ibid.
206
Ibid.

67