Evidence:

Basic Principles and Selected Problems

by Justice Alfredo L. Benipayo *

WHEN EVIDENCE IS NECESSARY

Evidence is the means of proving a fact. It becomes necessary to present evidence in a case
when the pleadings filed present factual issues. Factual issues arise when a party specifically
denies material allegations in the adverse party’s pleading. These are the issues which the judge
cannot resolve without evidence being presented thereon. Thus, whether a certain thing exists or
not, whether a certain act was done or not, whether a certain statement was uttered or not, are
questions of fact that require evidence for their resolution. Questions of fact exist when the doubt
or difference arises as to the truth or falsehood of alleged facts. 1 Other than factual issues, the
case invariably presents legal issues. On the other hand, a question of law exists when the doubt
or difference arises as to what the law is on a certain set of facts. Legal issues are resolved by
simply applying the law or rules applicable, or interpreting the law applicable considering the
facts of the case. Generally, no evidence need be presented on what the applicable law is.
Everyone, including the judge, is presumed to know the law.
When the parties’ pleadings fail to tender any issue of fact, either because all the factual
allegations have been admitted expressly or impliedly (as when a denial is a general denial), there
is no need of conducting a trial, since there is no need of presenting evidence anymore. The case
is then ripe for judicial determination, either through a judgment on the pleadings 2 or by
summary judgment.3

ADMISSIBILITY OF EVIDENCE
The study of the law on evidence involves two main problems, viz.: (1) determining whether a
given piece of evidence is admissible; and (2) the proper presentation of that evidence so that the
court will consider it in resolving the issues and deciding the case. Although evidence may, by
itself, be admissible, the court may not admit or consider it in the resolution of the case unless the
evidence was properly presented.
A. AXIOM OF ADMISSIBILITY OF EVIDENCE
Evidence is admissible when it is relevant to the issues and is competent, i.e., it is not
excluded by the law or the Rules of Court4. Evidence is relevant if it tends in any reasonable
degree to establish the probability or improbability of a fact in issue.5 It is of a lesser degree of
reliability as evidence than material evidence. Material evidence directly proves a fact in issue.
Thus, the testimony of an eyewitness to the commission of a crime is material; the evidence of
motive or flight of the accused may be relevant. Evidence that is material or relevant must also be
competent to be admissible. For example, although the testimony of the eyewitness may be
material, it may be inadmissible if it is excluded by the marital disqualification rule.
Relevancy or materiality of evidence is a matter of logic, since it is determined simply by
ascertaining its logical connection to a fact in issue in the case. It is therefore inadvisable for a
judge to ask an objecting counsel why an offered piece of evidence is irrelevant or immaterial. By
his inquiry, he shows his unfamiliarity with the issues in the case. A judge is expected to be aware
of the issues which he was supposed to have defined and limited in his mandatory pre-trial order.

1
* Solicitor General, Professor of Law & Bar Reviewer in Remedial Law, Dean of the
UST Faculty of Civil Law.
Parañaque Kings Enterprises v. Court of Appeals, 268 SCRA 727.
2
Rule 34, Rules of Court.
3
Rule 35, Ibid.
4
Rule 128, Sec. 3, Rules of Court.
5
Ibid.
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On the other hand, the grounds for objection to the competency of evidence must be
specified6 and are determined by the Rules or the law.
The opposites of the three requisites for admissibility of evidence, viz., irrelevancy,
immateriality or incompetency, are the general grounds for objection. The first two are valid
grounds for objection without need of specification or explanation. The third ground for
objection, incompetency, if offered without further explanation, is not valid for being unspecific,
except when invoked in reference to the lack of qualification of a witness to answer a particular
question or give a particular evidence.
B. PROPER PRESENTATION OF EVIDENCE
Every piece of evidence, regardless of its nature, requires certain processes of presentation for
its admissibility and admission:
1. Object evidence must generally be marked (Exhibit A, B, etc. for the plaintiff; Exhibit 1,
2, 3, etc. for the defendant) either during the pre-trial or during its presentation at the trial. It
must also be identified as the object evidence it is claimed to be. This requires a testimonial
sponsor. For example, a forensic chemist identifies marijuana leaves as those submitted to him in
the case for examination. Further, object evidence must be formally offered after the presentation
of a party’s testimonial evidence.7
2. Oral evidence is presented through the testimony of a witness. Under the 1989 Rules of
Evidence, oral evidence must be formally offered at the time the witness is called to testify. 8
Objections may then be raised against the testimony of the witness. If the objection is valid, as
when the witness’ testimony is barred by the hearsay rule or the opinion rule, the witness will not
be allowed to testify. If the witness is otherwise allowed to testify, he shall be sworn in, either by
taking an oath or making an affirmation.9 It is essential that the proper foundation for the
testimony of a witness must be laid. An ordinary witness must be shown to have personal
knowledge of the facts he shall testify to, otherwise his testimony will be hearsay, or he will be
incompetent to answer the questions to be asked of him. An expert witness must be specifically
qualified as such, otherwise he cannot validly give his opinion on matters for which he may have
been summoned as a witness.
However, the requirement of qualifying an expert witness may be dispensed with if:
a) the adverse counsel stipulates on the expert’s qualification; or
b) the court takes judicial notice of the witness’s expertise, because the judge happens to be
aware thereof on account of the judge’s judicial functions.
3. Documentary evidence is (a) marked; (b) identified as the document which it is
claimed to be (as when the witness asserts that the document presented to him is the same
contract which he claims was executed between the two parties); (c) authenticated, if a private
document, by proving its due execution and genuineness; and (d) formally offered after all the
proponent’s witnesses have testified.10
Rule 132, Sec. 34 provides that the court shall consider no evidence which has not been
formally offered, and that the purpose for which the evidence is offered must be specified. In this
connection, it has been asked whether it would be proper for the judge to disregard a witness’s
direct testimony given without the prior formal offer thereof which Rule 132, Sec. 35 requires, and
corollarily, whether the adverse party may be required to cross-examine that witness. In People
vs. Romil Marcos,11 the Supreme Court ruled that if a witness has given unoffered direct
6
Rule 134, Sec. 6, Rules of Court.
7
Rule 132, Sec. 35, Ibid.
8
Rule 132, Sec. 35, Ibid.
9
Rule 132, Sec. 1, Ibid.
10
Rule 132, Sec. 35, Rules of Court.
11
212 SCRA 748, August 21, 1992.
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testimony without objection from the adverse party, the latter is estopped from raising that
objection which he is deemed to have waived; hence, although not formally offered, the testimony
may be considered by the court.
PEOPLE v. MARCOS
G.R. No. 91646, 21 August 1992, 212 SCRA 748
Appellant was charged with a violation of the Dangerous Drugs Act. Relying
upon the testimonies of prosecution witnesses regarding the buy-bust operation,
the court found the appellant guilty and imposed a sentence of imprisonment.
On appeal, the appellant raised in issue, the court’s alleged reversible error in
convicting the accused based on the testimonies of the prosecution witnesses,
when such testimonies were not properly offered in evidence.
Issue: Whether the absence of the formal offer of testimonial evidence would
prevent the court from considering them in its decision.
Ruling: The testimony of one of the prosecution witnesses was formally
offered by the prosecution, whereas the testimonies of the other witnesses were
not. They were, however, included in the prosecuting Fiscal’s formal offer of
documentary evidence. Inasmuch as the appellant did not object to such offer,
nor object to the unoffered direct testimony of the witnesses, he is now estopped
from questioning their appreciation by the court. The appellant was not deprived
of any of his constitutional rights in the inclusion of the subject testimonies, nor
of his right to cross-examine all the prosecution witnesses.
The view can be advanced, however, that although the aforesaid testimony was not expressly
formally offered, it was nonetheless formally offered, albeit impliedly and automatically, the
moment each question was propounded to elicit an answer. This view is premised on two related
provisions in Rule 132, Sec. 36, i.e., that “Objection to evidence offered orally must be made
immediately after the offer is made”, and that “Objection to a question propounded in the course of
the oral examination of a witness shall be made as soon as the grounds therefore shall have
become reasonably apparent.” Clearly, the purpose of the express formal offer of oral evidence
before the witness testifies is merely to determine, on the basis of the stated substance of the
testimony and its purpose, whether the witness shall be allowed to testify. Once the witness is
allowed to testify, each question propounded to elicit specific oral evidence may still be objected to
as soon as a ground for objection becomes reasonably apparent. But it is fundamental that an
objection to evidence can be validly raised only after an offer is made. Thus, every question asked of
a witness especially on direct examination presupposes a formal offer of the answer, the oral
evidence, sought to be elicited. It would seem therefore that unlike documentary and object
evidence which are formally offered only after all the witnesses of a party have testified, oral
evidence is offered twice: once, expressly, before the witness testifies, and again, with each question
propounded to the witness.

IMPORTANCE OF THE FORMAL OFFER OF EVIDENCE; NEED FOR STATEMENT OF

THE PURPOSE OF EVIDENCE
Evidence not formally offered will not be considered by the court in deciding the case.12
A party makes a formal offer of his evidence by stating its substance or nature and the purpose
or purposes for which the evidence is offered. 13 Without a formal offer of evidence, and hence
without a disclosure of its purpose, it cannot be determined whether it is admissible or not. This is
so because it is the intended purpose of a piece of evidence which determines what rule of evidence
12
Rule 130, Sec. 34.
13
Ibid..
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will apply for its admissibility. A piece of evidence may be admissible if offered for one purpose but
may be inadmissible if offered for another. For example, the testimony of a witness, in a libel case,
that he heard the defendant call the plaintiff a liar and a crook is certainly inadmissible for being
hearsay, if offered to prove the truth of the perceived statement. However, the same testimony is
perfectly admissible if offered simply to prove that the statement was uttered. For that purpose, the
witness would be the only person qualified to testify on, and prove, what he heard defendant say.
Similarly, the declaration of a dying person made without consciousness of his impending death will
not qualify as a dying declaration, although it may be admissible if offered as part of the res gestae.
It must be noted that the mere marking, identification, or authentication of documentary
evidence does not mean that it will be, or has been, offered as part of the evidence of a party. This
was the ruling of the Supreme Court in People v. Santito, Jr.14

PEOPLE v. SANTITO
G.R. No. 91628, 22 August 1991, 201 SCRA 87
Appellant was charged with the crime of robbery with homicide. Upon
arraignment, accused, assisted by counsel, entered pleas of not guilty. After trial
on the merits, the court rendered judgment finding them guilty. Hence, this
appeal.
Issue: Whether the identification of an entry in the police blotter is
equivalent to an offer of evidence.
Ruling: Entries in official records, as in the case of a police blotter, are only
prima facie evidence of the facts therein stated. They are not conclusive.
The entry in the police blotter was never presented by the defense during the
proceedings. Even assuming that the same had been identified in court, it would
have no evidentiary value. The mere fact that a particular document is identified
and marked as an exhibit does not mean it will be or has been offered as part of
the evidence of the party. The party may, or may not, decide to formally offer it
after all.
In any case, since the defense did not identify or formally offer the said entry
in the blotter, the court still would not consider the same, identification and
marking as an exhibit being necessary for a formal offer. Under Section 35, Rule
132 of the Rules of Court, no evidence shall be considered without first having
been formally offered.
Annexes attached to pleadings, if not offered formally, are mere scraps of paper and should
not be considered by the court,15 unless the truth of their contents has been judicially admitted.
To the general rule that the court shall not consider any evidence not formally offered, there
are certain exceptions:
1. Under the Rule on Summary Procedure, where no full blown trial is held in the interest of
speedy administration of justice;
2. In summary judgments under Rule 35 where the judge bases his decisions on the
pleadings, depositions, admissions, affidavits and documents filed with the court;
3. Documents whose contents are taken judicial notice of by the court;

14
201 SCRA 87.
15
Llaban v. Court of Appeals, December 20, 1991 (Although the decision in Llaban
was withdrawn by the Supreme Court on March 17, 1993, the withdrawal affected
only the validity of final disposition of that case. This did not void the soundness of
the Court’s pronouncement on the treatment of annexes attached to pleadings.).
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4. Documents whose contents are judicially admitted;

5. Object evidence which could not be formally offered because they have disappeared or
have become lost after they have been marked, identified and testified on and described
in the record and became the subject of cross-examination of the witnesses who testified
on them during the trial, e.g., marijuana involved in a prohibited drugs prosecution.16

PEOPLE v. NAPAT-A
G.R. No. 84951, 14 November 1989, 179 SCRA 403
Accused was nabbed in a buy-bust operation and subsequently convicted of
the crime of drug-pushing.
Issue: Whether the failure to present the box and its contents of marijuana
leaves as evidence precludes conviction for drug-pushing.
Ruling: The forensic chemist of the Philippine Constabulary Crime
Laboratory testified that the box and its contents were presented, identified, and
marked as exhibits in court. The subsequent loss of these exhibits did not affect
the case for the trial court had described the evidence in the records. In People v.
Mate, the Court ruled that “(e)ven without the exhibits which have been
incorporated into the records of the case, the prosecution can still establish the
case because the witnesses properly identified those exhibits and their
testimonies are recorded.” Furthermore, in this case, the appellant’s counsel had
cross-examined the prosecution witness who testified on those exhibits.

TABUENA v. COURT OF APPEALS

G.R. No. 85432, 6 May 1991, 196 SCRA 650
Ruling: The mere fact that a particular document is marked as an exhibit
does not mean that it has thereby already been offered as part of the evidence of a
party. In Interpacific Transit v. Aviles, the Court held that “(a)t the trial on the
merits, the party may decide to formally offer (the exhibits) if it believes that they
will advance its cause, and then again it may decide not to do so at all. In the
latter event, such documents cannot be considered evidence, nor can they be
given any evidentiary value.”

MODES OF EXCLUDING INADMISSIBLE EVIDENCE

There are two ways of excluding inadmissible evidence. One is by objection and the other is
by a motion to strike out.
A. Evidence is objected to at the time it is offered (not before it is offered):

1. Oral evidence is objected to after its express formal offer before the witness
testifies.17 When thereafter the witness is allowed to testify, objection to a
question propounded in the course of the oral examination of a witness shall be
made as soon as the grounds therefore shall become reasonably apparent.18

2. Documentary and object evidence are objected to upon their formal offer after
the presentation of a party’s testimonial evidence.

16
People v. Napat-a, 179 SCRA 403; People v. Tabuena, 196 SCRA 650, May 6, 1991.
17
Rule 132, Sec. 35, Rules of Court.
18
Rule 132, Sec. 36, Ibid.
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Failure to seasonably object to offered evidence amounts to a waiver of the grounds for
objection. The rules of exclusion are not self-operating. They must be properly invoked.
The grounds for objection must be specified.19 Grounds not raised are deemed waived.
However, repetition of objection is unnecessary when a continuing objection is properly
made.20 Objection to the purpose for which evidence is offered is not proper.
B. A motion to strike out answer or testimony is proper in the following instances:

1. The witness answers prematurely.21

2. The answer is incompetent, irrelevant, or improper.22
-- the incompetency referred to here is limited to the incompetency of the witness to
answer the question posed, it does not extent to the general concept of incompetency of
evidence for being excluded by law or the Rules.
3. The answer given is unresponsive.
4. The ground for objection was not apparent when the question was asked.
5. Uncompleted testimony – e.g., a witness who gave direct testimony becomes unavailable
for cross-examination through no fault of the cross-examiner.
6. Unfulfilled condition in conditionally admitted testimony.

OBJECTIONS AND RULING

I. Objections to evidence may be formal or substantive.

A. Formal objections are based on the defective form of the question asked.
Examples:

(1) leading questions, which suggest to the witness the answer desired23
a. If a counsel finds difficulty in avoiding leading questions, the judge may
suggest, to expedite proceedings, that counsel begin his questions with the
proper interrogative pronouns, such as “who”, “what”, “where”, “why”,
“how”, etc.

b. Leading questions are allowed of a witness who cannot be reasonably

expected to be led by the examining counsel, as (a) on cross-examination24;
(b) when the witness is unwilling or hostile, after it has been demonstrated
that the witness had shown unjustified reluctance to testify or has an adverse
interest or had misled the party into calling him to the witness stand, and in
either case after having been declared by the court to be indeed unwilling or
hostile25; or (c) when the witness is an adverse party or an officer, director, or
managing agent of a public or private corporation or of a partnership or
association which is an adverse party.26

19
Rule 132, Sec. 36, Ibid.
20
Rule 132, Sec. 37, Ibid.
21
Rule 132, Sec. 39, Rules of Court.
22
Ibid.
23
Rule 132, Sec. 10, Ibid.
24
Ibid.
25
Rule 132, Secs. 10 & 12, Rules of Court.
26
Ibid.
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c. Leading questions may also be asked when there is difficulty in getting direct
and intelligible answers from a witness who is ignorant, or a child of tender
years, or is feeble minded, or a deaf-mute.27

d. Leading questions may moreover be asked on preliminary matters, i.e., on

facts not in controversy, and offered only as basis for more important
testimony to follow. For example, “You are Mrs. Maria Morales, wife of the
plaintiff in this case?”
e. Likewise, asking a question which uses as a premise admitted facts or the
witness’s previous answer is not for that reason objectionable as leading.

(2) misleading questions, which assume as true a fact not testified to by the witness
(“question has no basis”), or contrary to that which he has previously stated;28

(3) double or multiple questions, which are two or more queries in one. For
example, Q: “Did you see the defendant enter the plaintiff’s house, and was the
plaintiff there?"
(4) vague; ambiguous; indefinite or uncertain questions – not allowed because the
witness cannot understand from the form of the question just what facts are
sought to be elicited.
(5) Repetitious questions, or those already answered. However, on cross-
examination, the cross-examiner may ask a question already answered to test the
credibility of a witness.

(6) Argumentative questions, which challenge a witness’s testimony by engaging

him in an argument, e.g., Q: “Isn’t it a fact Mr. Witness that nobody could
possibly see all the circumstances you mentioned in a span of merely two
seconds, and that either your observations are inaccurate or you are lying?”

B. Substantive objections are those based on the inadmissibility of the offered

evidence, e.g.;
(1) irrelevant; immaterial
(2) best evidence rule
(3) parol evidence rule
(4) disqualification of witness
(5) privileged communication
(6) res inter alios acta
(7) hearsay
(8) opinion
(9) evidence illegally obtained
(10) private document not authenticated
II. The ruling by the court on an objection must be given immediately after an objection is made,
unless the court desires to take a reasonable time to inform itself on the question presented; but
the ruling shall always be made during the trial and at such time as will give the party against

27
Ibid.
28
Ibid.
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whom it is made an opportunity to meet the situations presented by the ruling.29 Thus, an
objection to a question asked of a witness must be at once resolved by the court by either
sustaining or overruling the objection. It would be incorrect for a judge to consider the objection
“submitted” or “noted”. Unless the objection is resolved, the examination of the witness could not
be expected to continue since in all likelihood the next question would depend on how the
objection is resolved. If the issue raised by the objection is a particularly difficult one, it would
not be improper for the judge to perhaps declare a brief recess to enable him to quickly study the
matter. But certainly, the resolution must be given before the trial resumes.
The reason for sustaining or overruling an objection need not be stated. However, if the
objection is based on two or more grounds, a ruling sustaining the objection, on one or some of
them, must specify the ground or grounds relied upon.30
Judges are advised to judiciously consider the validity of the grounds for objections and
carefully rule on them. A ruling that all evidence formally offered are “admitted for whatever they
may be worth” will not reflect well on the judge, as it implies a hasty and ill-considered resolution
of the offer and the objections. Besides, the phrase “for whatever they may be worth” is improper
since it refers to the weight or credibility of the evidence. At the formal offer, the only issue
presented is the admissibility of evidence; the weight of the evidence shall be considered only
after the evidence shall have been admitted. Another ruling that is ludicrous and even
nonsensical is “[e]vidence admitted subject to the objections”. This is a non-ruling.
In case of an honest doubt about the admissibility of evidence, it is better policy to rule in
favor of its admission. An erroneous rejection of evidence will be unfair to the offeror since the
judge cannot validly consider it even if after the trial the judge realizes his mistake. On the other
hand, if the judge had erred in admitting a piece of evidence, he may simply give it little or no
weight when deciding the case.

LAYING THE FOUNDATIONS FOR EVIDENCE

In determining the competency of an offered piece of evidence, the court must examine the
requisites provided by the pertinent rule or law for its admissibility. These requisites must be
established as foundations for the evidence. For example, for a declaration of an agent to be
admissible against his principal, as an exception to the res inter alios acta rule,31 the declaration
must be: (1) within the scope of the agent’s authority; (2) made during the existence of the agency;
and (3) the agency is shown by evidence other than by such declaration.32 If the agent’s
declaration is on a matter outside the scope of his agency, or is made after the agency had ceased,
the agent’s declaration cannot be admitted against his principal; the general rule of res inter alios
acta will apply instead.
Similarly, the foundation required by the Rules for the proper presentation of evidence must
be laid, lest the evidence be rejected. For example, when the original of a document is
unavailable, before secondary evidence thereof is admitted, the proponent must establish: (1) the
existence or execution of the original document, and (2) the circumstances of the loss or
destruction of the original, or that the original cannot be produced in court.

JUDICIAL NOTICE
A. MANDATORY AND DISCRETIONARY JUDICIAL NOTICE

29
Rule 132, Sec. 38, Rules of Court.
30
Ibid.
31
Rule 130, Sec. 28, Rules of Court.
32
Rule 130, Sec. 29, Ibid.
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Not everything alleged in a party’s pleading is required to be proved. Certain matters may be
so well known to the court that to compel a party to prove it would be a waste of time and effort.
Under the Rules, it shall be mandatory for the court to take judicial notice, without the
introduction of evidence, of the existence and territorial extent of states, their political history,
forms of government and symbols of nationalities, the law of nations, the admiralty and maritime
courts of the world and their seals, the political Constitution and history of the Philippines, the
official acts of the three departments of the Philippine government, the laws of nature, the
measure of time and the geographical divisions.33 Courts may take judicial notice of matters
which are: (a) of public knowledge, (b) capable of unquestionable demonstration, or (c) ought to
be known to judges because of their official functions.34
B. HEARING THE PARTIES ON DISCRETIONARY JUDICIAL NOTICE
During the trial, when a court is uncertain whether it may, at its discretion, take judicial
notice of a certain fact or not, it may call the parties to a hearing to give them reasonable
opportunity to present information relevant to the propriety or impropriety of taking judicial
notice of that fact. Certainly the so-called “hearing” is not for the purpose of adducing evidence
on that fact. Similarly, even after the trial and before judgment or on appeal, the court may hear
the parties on the propriety of taking judicial notice of a certain matter if such matter is decisive
of a material issue in the case.35 This procedure will apprise the parties of the possibility that the
judge will or will not take judicial notice of a fact, or of his resolution either way; it will thus
eliminate the element of surprise and enable the parties to act accordingly.
C. JUDICIAL NOTICE OF PROCEEDINGS IN ANOTHER CASE
In the adjudication of a case pending before it, a court is not authorized to take judicial notice
of the contents of another case even if said case was heard by the same judge. The following are
exceptions to this general rule: (1) when in the absence of any objection, with the knowledge of
the opposing party, the contents of said other case are clearly referred to by title and number in a
pending action and adopted or read into the record of the latter; or (2) when the original record of
the other case or any part of it is actually withdrawn from the archives at the court’s discretion
upon the request, or with the consent, of the parties, and admitted as part of the record of the
pending case.36 Parenthetically, a court will take judicial notice of its own acts and records in the
same case.37
PEOPLE v. MENDOZA
G.R. No. 96397, 21 November 1991, 204 SCRA 288
On appeal to the Supreme Court, the accused, convicted by the Regional Trial
Court of robbery with homicide, contended that the trial court erred in taking
judicial notice of testimonies in other criminal cases despite their not having been
offered or admitted.
Issue: Whether the testimonies in another case may be taken judicial notice
of despite their not having been offered or admitted.
Ruling: It is noted that when a motion to adopt the said testimonies of
witnesses was made by the prosecution, the appellant and his counsel did not
object but instead gave their consent. Moreover, when the co-conspirator of the
accused was confronted with portions of his testimonies in the previous cases, he

33
Rule 129, Sec. 1, Rules of Court.
34
Rule 129, Sec. 2, Ibid.
35
Rule 129, Sec. 3, Ibid.
36
Tabuena vs. Court of Appeals, 196 SCRA 650; PP vs. Melencio Mendoza, 294 SCRA
288
37
Republic vs. Court of Appeals, 277 SCRA 633
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merely denied them or refused to explain. Said portions, thus, became part of his
testimony which were duly subjected to cross-examination by defense counsel.
When there is an objection, and the judge therefore cannot take judicial notice of a testimony
or deposition given in another case, the interested party must present the witness to testify anew.
However, if the witness is already dead or unable to testify (due to a grave cause almost
amounting to death, as when the witness is old and has lost the power of speech38), his testimony
or deposition given in a former case or proceeding, judicial or administrative, involving the same
parties and subject matter, may be given in evidence against the adverse party who had the
opportunity to cross-examine him.39
If the testimony or deposition given in another proceeding is that of a party in a case, the
other party may simply offer in evidence the record of that testimony or the deposition without
having to call the declarant-party to testify thereon. Certainly, a party will offer the opposing
party’s declaration as evidence only if it is prejudicial to the latter’s interest. Such declaration of a
party against his interest is an extra-judicial admission which may be given in evidence against
him.40

ADMISSIONS: JUDICIAL AND EXTRA-JUDICIAL

An admission is a party’s acknowledgment of a fact which is against his interest.
A party may make an admission in any of these ways:
1. In written pleadings, motions and other papers, and stipulations filed in the case.
2. In open court, either by his testimony on the stand or by his statement or that of his
counsel.
3. In his statement made outside the proceedings in the same case.
In the first two instances above-mentioned, the admissions made are regarded as judicial
admissions. A judicial admission does not require proof and may be contradicted only by
showing that it was made through palpable mistake or that no such admission was made. A
judicial admission need not be offered in evidence since it is not evidence. It is superior to
evidence and shall be considered by the court as established.
On the other hand, statements made by a party outside the proceedings in the same case are
extra-judicial admissions which may be an act, declaration or omission made by a party as to
a relevant fact and may be given in evidence against him.41 This type of admission is regarded as
evidence and must be offered as such, otherwise the court will not consider it in deciding the case.
If the extra-judicial statement of a party is not against his interest but is in his favor, it becomes a
self-serving declaration which is inadmissible for being hearsay since it will be testified to by one
who simply heard the statement and has no personal knowledge of it. But it will not be
incompetent evidence, nor self-serving, if testified to by the party himself at the trial.42

TUASON v. COURT OF APPEALS

G.R. No.113779-80, 23 February 1995, 241 SCRA 695
Ruling: Self-serving evidence is not to be literally taken as evidence that
serves one’s selfish interest. Under the law on evidence, self-serving evidence is
one made by a party out of court at one time: it does not include a party’s
38
Tan v. CA, 20 SCRA 57.
39
Rule 130, Sec. 47, Rules of Court.
40
Rule 130, Sec. 26, Ibid.
41
Rule 130, Sec. 26, Rules of Court.
42
A. Tuason v. CA, 241 SCRA 695.
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testimony as a witness in court. It is excluded on the same ground as any hearsay

evidence, that is, the lack of opportunity for cross-examination by the adverse
party, and on the consideration that its admission would open the door to fraud
and fabrication of testimony.
On the other hand, a party’s testimony in court is sworn and affords the other
party the opportunity for cross-examination. In this case, it is clear that the
petitioner’s testimony in court, on how he was identified by the prosecution
witness, cannot be described as self-serving.
By the rule’s definition, not all admissions made by a party during a judicial proceeding are
judicial admissions. To qualify, they must be made and offered in the proceedings in the same
case. If made in one judicial proceeding, but offered in another, they become extrajudicial
admissions for purposes of the latter case. Thus, the declaration of a defendant in a case that the
plaintiff therein is his agent is a judicial admission of the agency relationship between them if that
fact is against the defendant’s interest. However, that same admission may only be an
extrajudicial admission if considered in another case between the same parties.
With more reason, an admission made in a document drafted for purposes of filing as a
pleading in the case but never filed, another pleading being filed in its stead, is not a judicial
admission, for the unfiled document is not considered a pleading. Whether it would even be an
extrajudicial admission would depend upon whether the document was signed by the client or
only by his attorney. If signed only by the attorney, it would not be admissible at all, since an
attorney has authority to make statements on behalf of his client only in open court or in a
pleading actually filed.43
In criminal cases, it should be noted that an admission or stipulation made by the accused
during the pre-trial cannot be used in evidence against him unless reduced to writing and signed
by him and his counsel.44 But this rule does not apply to admissions made in the course of the
trial. Thus, an admission made by an accused or his counsel during the trial may be used against
the accused although not signed by either of them.45

FULE v. COURT OF APPEALS

G.R. No. L-79094, 22 June 1988, 162 SCRA 446
Petitioner was convicted of a violation of B.P. 22, the Bouncing Checks Law,
on the basis of an unsigned stipulation of facts entered into between the
prosecution and the defense during pre-trial. On appeal, the respondent
appellate court upheld the stipulation of facts and affirmed the judgment of
conviction.
Issue: Whether the conviction, based solely on a stipulation of facts which
was not signed by either the petitioner or his counsel, was proper.
Ruling: The omission of the signature of the accused and his counsel, as
mandatorily required by the Rules, renders the stipulation of facts inadmissible
in evidence. The fact that the lawyer of the accused, in his memorandum,
confirmed the stipulation of facts does not cure the defect because Rule 118
requires the signature of both the accused and his counsel.
What the prosecution should have done, upon discovering the lack of the
required signatures, was to submit evidence to establish the elements of the
crime, instead of relying solely on the supposed admission of the accused.

43
Jackson vs. Schine Lexington Corporation, 305 Ky. 823, 205 S.W. 2d 1013.
44
Rule 118, Sec. 4; Manolo Fule vs. Court of Appeals, 162 SCRA 446, June 22, 1988.
45
People vs. Cristina Hernandez, 260 SCRA 25, 30 July 1996.
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Without said evidence independent of the admission, the guilt of the accused
cannot be deemed established beyond reasonable doubt.

PEOPLE v. HERNANDEZ
G.R. No. 108028, 30 July 1996, 260 SCRA 25
Issue: Whether the stipulation of facts proposed during trial by the
prosecution, and admitted by defense counsel, is admissible.
Ruling: A stipulation of facts in criminal cases is now expressly sanctioned
by law. In further pursuit of the objective of expediting trial by dispensing with
the presentation of evidence on matters that the accused is willing to admit, a
stipulation of facts should not be allowed only during the pre-trial but also, and
with more reason, during trial proper itself.
A stipulation of facts entered into by the prosecution and defense counsel
during trial in open court is automatically reduced into writing and contained in
the official transcript of the proceedings had in court. The conformity of the
accused in the form of his signature affixed thereto is unnecessary in view of the
fact that: “xxx an attorney who is employed to manage a party’s conduct of a
lawsuit xxx has prima facie authority to make relevant admissions by pleadings,
by oral or written stipulation, xxx which, unless allowed to be withdrawn, are
conclusive.” In fact, “judicial admissions are frequently those of counsel or of the
attorney of record who is, for the purpose of the trial, the agent of his client.
When such admissions are made xxx for the purpose of dispensing with proof of
some fact, xxx they bind the client, whether made during, or even after trial.”
In view of the foregoing, the stipulation of facts proposed during trial by
prosecution and admitted by defense counsel is tantamount to a judicial
admission by the appellant of the facts stipulated on. Controlling, therefore, is
Section 4, Rule 129 of the Rules of Court (Judicial Admissions).
Admissions in a pleading which had been withdrawn or superseded by an amended pleading,
although filed in the same case, are reduced to the status of extrajudicial admissions and
therefore must be proved by the party who relies thereon46 by formally offering in evidence the
original pleading containing such extrajudicial admission.47 Consistently, the 1997 Rules of Civil
Procedure provides that “An amended pleading supersedes the pleading that it amends.
However, admissions in superseded pleadings may be received in evidence against the pleader . .
.”48.

JAVELLANA v. D.O. PLAZA ENTERPRISES, INC.

G.R. No. L-28297, 30 March 1970, 32 SCRA 261
A complaint for the collection of a sum of money was filed. After the
defendant filed his answer and counter-claim, the plaintiff filed a motion to admit
his amended complaint which was granted. After trial, judgment was rendered
ordering the defendant to pay a sum of money with interest and damages. On the
basis of defendant’s motion for reconsideration, the court modified its previous
decision, decreasing the amount of interest and attorney’s fees. Hence, this
appeal.

46
Bastida vs. Menzi & Co., 58 Phil. 188.
47
Javellana vs. D.O. Plaza Enterprises, Inc., March 30, 1970; Torres vs. Court of
Appeals, 31 July 1984, 131 SCRA 24; Director of Lands vs. CA, 196 SCRA 94, April 22,
1991.
48
Rule 10, Sec. 8, Rules of Court.
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Issue: Whether the court may reduce the amount of interest and attorney’s
fees on the basis of the amounts alleged by the plaintiff in the original complaint.
Ruling: The court reduced the interest and attorney’s fees on the basis of
estoppel, the ground therefor being that the reduced amounts were those alleged,
hence admitted, by the plaintiff in his original complaint. This was error. The
original complaint was not formally offered in evidence. Having been amended,
the original complaint lost its character as a judicial admission, which would have
required no proof, and became merely an extrajudicial admission, the
admissibility of which, as evidence, requires its formal offer.
Since the record does not show that the complaint was admitted in evidence,
there is no proof of estoppel on the part of the plaintiff on his allegations in the
complaint.
Since generally a judicial admission does not require proof and cannot be contradicted, any
attempt made by a party to still prove it may be objected to as immaterial, i.e., not in issue
anymore; and any attempt to adduce evidence in contradiction of that admission may also be
objected to. In either case, the judge may himself block such attempts as improper departures
from the issues of the case. Unless, of course, it can be shown that the admission was made
through palpable mistake or that no such admission was made at all.49
BEST EVIDENCE RULE
The Best Evidence Rule is applicable only to documents. When the subject of inquiry is
the contents of a document, no evidence shall be admissible other than the original writing
itself.50 Not every writing is considered a document for purposes of the best evidence rule.
Documents as evidence consist of writings or any material containing letters, words, numbers,
figures, symbols or other modes of written expressions offered as proof of their contents.51
If a writing is offered not to prove its contents but to prove some other fact, e.g., that the
writing exists, or that it is done on sheepskin, or the size of the paper it is written on, it is, for
purposes of evidence, only object evidence. To determine the admissibility of object evidence, the
best evidence rule does not apply. Hence, the original writing need not be presented. The
existence or condition of that writing may be proved, at once, by any other evidence, like oral
testimony.52

PEOPLE v. TANDOY
G.R. No. 80505, 4 December 1990, 192 SCRA 28
Accused was convicted of a violation of the Dangerous Drugs Act. He
appealed to the Supreme Court, contending that the trial court erred, in violation
of the Best Evidence Rule, in admitting a xerox copy of the bill allegedly used as
buy-bust money.
Issue: Whether the xerox copy of the marked bill is admissible in evidence.
Ruling: The Best Evidence Rule applies only when the contents of the
document are the subject of inquiry. Where the issue is only as to whether or not
such document was actually expected, or exists, or in the circumstances relevant
to or surrounding its execution, the best evidence rule does not apply and
testimonial evidence is admissibile.

49
Rule 129, Sec. 4, Ibid.
50
Rule 130, Sec. 3, Ibid.
51
Rule 130, Sec. 2, Ibid.
52
People vs. Tandoy, 192 SCRA 28.
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Since the photocopy of the marked money was presented by the prosecution
solely for the purpose of establishing its existence and not its contents, other
substitutionary evidence, like a xerox copy, is therefore admissible without
accounting for the original.
Closely related to the best evidence rule is the rule that a document or writing which is merely
“collateral” to the issue involved in the case on trial need not be produced. This is the collateral
facts rule. Thus, where the purpose of presenting a document is not to prove its contents, but
merely to give coherence to, or to make intelligible, the testimony of a witness regarding a fact
contemporaneous to the writing, the original of the document need not be presented. In this case,
the contents of the document are not sought to be proven, but are simply incidental to the fact
being testified to. Thus, the best evidence rule cannot apply.53

AIR FRANCE v. CARRASCOSO

G.R. No. L-21438, September 28, 1966
On a flight from Bangkok to Rome, onboard an Air France airplane, the
plaintiff Carrascoso was forced to give up his first class seat for another
passenger. Apparently, Carrascoso was made to give up his seat because a “white
man” had a better right to the seat. During the trial, Carrascoso testified that the
purser of the plane had told him that he – the purser – had made an entry in his
notebook, relating the incident, thus “First class passenger was forced to go to the
tourist class against his will, and that the captain refused to intervene.” The
notebook itself was not presented. The defense moved to strike the testimony on
the ground that the notebook itself would be the best evidence. The trial court
denied the motion to strike.
Issue: Whether the trial court erred in its decision to allow the testimony
without the production of the document in question.
Ruling: Petitioner charges that the finding that the purser made an entry in
his notebooks reading “First class passenger was forced to go to the tourist class
against his will, and that the captain refused to intervene” is predicated upon
evidence (Carrascoso’s testimony) which is incompetent. The court disagreed,
holding that the subject of inquiry was not the entry, but the ouster incident.
Testimony of the entry does not come within the proscription of the best evidence
rule. Such testimony is, therefore, admissible.
The original of a document is one the contents of which are the subject of inquiry.54 Even a
mere photocopy of a document may be an original if it is the contents of that photocopy that are
inquired into.
When a document is in two or more copies executed at or about the same time with identical
contents, all such copies are equally regarded as originals. Thus, the first copy and the four (4)
carbon copies of a contract, all of which are identical, are all considered originals. Each of them
may be offered as proof of their contents. But if a party has lost his original document, he must
account not only for the unavailability of his copy but also for the lost, destruction or
unavailability of the rest of the original copies. Otherwise, secondary evidence of his lost original
will not be admitted. Any of the four other extant originals would still be the best available
evidence.55

DE VERA v. AGUILAR
53
Air France vs. Carrascoso, September 28, 1966.
54
Rule 130, Sec. 4, Rules of Court.
55
De Vera vs. Aguilar, 218 SCRA 602.
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G.R. No. 83377, 9 February 1988, 218 SCRA 602

The property subject of the dispute was mortgaged by petitioners to another
party. Upon maturity of the mortgage, the private respondents redeemed it and
the owner sold the property to the petitioners. The private respondents
registered the deed of sale and received an Original Certificate of Title.
Petitioners wrote to the respondents claiming that they were co-owners of the
property and demanding partition. They filed a suit for reconveyance of the lot in
the trial court, which ruled in favor of the petitioners. In doing so, the trial court
admitted an exhibit purporting to be a xeroxed copy of an alleged deed of sale by
the respondents.
The private respondents appealed to the Court of Appeals, which rendered its
decision reversing the trial court. It found that the loss or destruction of the
original deed of sale had not been duly proven by the petitioners. Hence,
secondary evidence, i.e., presentation of the xeroxed copy of the alleged deed of
sale, is inadmissible.
Issue: Whether the loss of the original deed of sale was satisfactorily proven
so as to allow the presentation of secondary evidence.
Ruling: Secondary evidence is admissible when the original documents were
actually lost or destroyed. But prior to the introduction of such secondary
evidence, the proponent must establish the former existence of the instrument.
The correct order of proof is as follows: Existence; execution; loss; contents –
although this order may be changed, if necessary, in the discretion of the court.
The sufficiency of proof offered as a predicate for the admission of an alleged lost
deed lies within the judicial discretion of the trial court under all the
circumstances of the particular case.
A reading of the decision of the trial court shows that it merely relied on
proof of the existence and due execution of the alleged deed of sale – the
photocopies thereof. It failed to look into the facts and circumstances
surrounding its loss or destruction.
The due execution of the deed of sale may be established by the person or
persons who executed it, by the person before whom its execution was
acknowledged, or by any person who was present and saw it executed or who,
after its execution, saw it and recognized the signatures; or by a person to whom
the parties to the instrument had previously confessed the execution thereof. In
this case, the due execution of the deed of sale was proven through the testimony
of the notary public.
After the due execution of the document has been established, it must next be
proven that said document was lost or destroyed. The destruction may be proved
by any person knowing the fact. The loss may be shown by any person who knew
the fact of such loss, or by any one who had made, in the judgment of the court, a
sufficient examination in the place or places where the documents or papers of
similar character are usually kept by the person in whose custody the lost
document was, and have been unable to find it; or who has made any other
investigation which is sufficient to satisfy the court that the instrument is indeed
lost.
However, all duplicates or counterparts must accounted for before using
copies. For, since all the duplicates or multiplicates are parts of the writing to be
proved, no excuse for non-production of the writing itself can be regarded as
established until it appears that all of its parts are unavailable.
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Secondary evidence may also be resorted to, as though the document had been lost, when the
adverse party who has custody of the original refuses, despite reasonable notice, to produce the
document.56 In this case, such adverse party should not later be allowed to introduce the original
for the purpose of contradicting the secondary evidence presented.57
When the proper foundation for the reception of secondary evidence has been laid, the best
evidence rule insists on a preference in the type of secondary evidence that will be presented.
Thus, the Rule provides:
“When the original document has been lost or destroyed, or cannot be
produced in court, the offeror, upon proof of its execution or existence
and the cause of its unavailability without bad faith on his part, may
prove its contents by a copy, or by a recital of its contents in some
authentic document, or by the testimony of witnesses, in the order
stated.”
Hence, before a party may offer the testimony of witnesses to prove the contents of a lost
original, he must first show or prove that no copy of the document exists and, in addition, that
there exists no authentic document reciting the contents of the unavailable original. This second
layer of foundations may of course be established by oral testimony, but it must be established.

PAROLE EVIDENCE RULE

The Parole Evidence Rule applies only to contractual documents.58 However, it does not
apply where at least one party to the suit is not a party – nor a privy to a party – to the written
instrument and does not base his claim, nor assert a right arising from the instrument or
established therein. Thus, a total stranger to the writing is not bound by its terms and is allowed
to introduce extrinsic – or parol – evidence against the efficacy of the writing.59
In order that parol evidence may be admissible, the exceptional situation, including the fact of
a subsequent agreement, must be put in issue in the pleading. Otherwise, no parol evidence can
be admissible. When the defendant invokes such exceptional situations in his answer, such facts
are sufficiently put in issue as to allow the presentation of parol evidence. However, if, when
presented, the parol evidence is not objected to, such objection is deemed waived.

ADMISSIBILITY OF EXTRA-JUDICIAL CONFESSIONS

The extra-judicial confession of an accused acknowledging his guilt of the offense charged, or
of any offense necessarily included therein, may be given in evidence against him. 60 Note that if
the confession is judicially given, either by way of a plea of guilty upon arraignment or made in
the course of the trial, it need not be offered in evidence since it is a judicial admission.61
An extra-judicial confession may be given either before the custodial investigation stage or
during custodial investigation. A person is placed under custodial investigation when after a
crime has been committed, the authorities’ investigation ceases to be a mere general inquiry into

56
Rule 130, Sec. 6, Rules of Court.
57
Wigmore on Evidence, § 1210.
58
Cruz v. Court of Appeals, December 10, 1999.
59
Lechugas v. Court of Appeals, August 6, 1986.
60
Rule 130, Sec. 33, Rules of Court.
61
Rule 129, Sec. 4, Ibid.
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the circumstances and authorship of the crime and begins to focus on the individual as a
suspect.62 Under R.A. 7438,63 custodial investigation shall include the practice of issuing an
“invitation” to a person who is investigated in connection with an offense he is suspected to have
committed.
When under custodial investigation, a person shall have the constitutional right to be
informed of his right to remain silent and to have competent and independent counsel preferably
of his own choice. If the person cannot afford the services of a counsel he must be provided with
one. These rights cannot be waived except in writing and in the presence of counsel.64 It must be
noted that neither a lawyer NBI agent nor the City Legal Officer can be considered an
independent counsel for this purpose.
If the person under custodial investigation has not been informed of any of the above-
mentioned rights, any confession or declaration given by him during said investigation shall be
inadmissible.65 To be valid, the information to be given to the accused regarding his rights must
be more than a perfunctory recitation of such rights; it must be made in practical terms, in a
language or dialect he understands and in a manner he comprehends, the degree of explanation
varying according to the person’s level of education and intelligence.66 The presumption of
regularity in the performance of official duty does not apply to in-custody confessions. The
prosecution must prove compliance with the aforementioned constitutional requirements.67

PEOPLE v. JIMENEZ
G.R. No. L-40677, 31 May 1976, 71 SCRA 186
Ruling: Prior to the police interrogation of the appellant, he was not warned
that he had the right to remain silent, that any statement he might make could be
used as evidence against him, and that he had the right to an attorney, either
appointed or retained. Without the aforesaid warnings, the purported
extrajudicial confession of the appellant, which was obtained during custodial
investigation by the police, is inadmissible in evidence.

PEOPLE v. CAMALOG
G.R. No. 77116, 31 January 1989, 169 SCRA 816
Ruling: Appellants were not informed of their constitutional rights and, even
assuming that they were so informed, there is no indication that they understood
those rights. “xxx the right of a person under interrogation ‘to be informed’
implies a correlative obligation on the part of the police investigator to explain,
and contemplates an effective communication that results in understanding what
is conveyed. Short of this, there is denial of the right, as it cannot truly be said
that the person has been ‘informed’ of his rights. Now, since the right ‘to be
informed’ implies comprehension, the degree of explanation required will
necessarily vary, depending upon the education, intelligence, and other relevant
personal circumstances of the person under investigation. Suffice it to say that a
simpler and more lucid explanation is needed where the subject in unlettered.”
(Reyes v. Quizon, 142 SCRA 362)

62
Miranda v. Arizona, 384 U.S. 436; Escobedo v. Illinois, 378 U.S. 478.
63
An Act Defining Certain Rights Of Persons Arrested, Detained, Or Under Custodial
Investigation As Well As The Duties Of The Arresting, Detaining, And Investigating
Officers And Providing Penalties For Violations Thereof.
64
Art. III, Sec. 12, Constitution.
65
People v. Jimenez, 71 SCRA 186.
66
People v. Camalog, 169 SCRA 816.
67
People v. Trinidad, 162 SCRA 714.
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PEOPLE v. TRINIDAD
G.R. No. L-38930, 28 June 1988, 162 SCRA 714
Ruling: The rule is that when an accused testifies that he signed his
confession because he was maltreated, the prosecution must present evidence to
rebut his claim, otherwise, the confession will be considered illegally procured.
The presumption of regularity of performance of official duty does not apply to
in-custody confessions. The prosecution must prove compliance with the
constitutional requirements.
No custodial investigation shall be conducted unless it be in the presence of counsel engaged
by the person arrested, or by any person in his behalf, or appointed by the court upon petition
either by the detainee himself or by anyone in his behalf. The right to counsel may be waived but
the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained
in violation of this procedure, whether inculpatory or exculpatory, in whole or in part, shall be
inadmissible in evidence.68
In People v. Policarpio,69 the accused who was arrested in a buy-bust operation refused to
give a statement after having been informed of his Constitutional rights; but he was made to
acknowledge in writing that six plastic bags of marijuana leaves were confiscated from him, and
he was also made to sign a receipt for P20.00 as the purchase price of the marijuana. The
Supreme Court ruled that said receipts were in effect extra-judicial confessions given during
custodial investigation and were therefore inadmissible for having been given without the
assistance of counsel.
An extra-judicial confession made by an accused shall not be sufficient for conviction unless
corroborated by evidence of corpus delicti (Rule 133, Sec. 3). Thus, in People v. Barlis,70 the
accused who validly gave a statement during custodial investigation confessing to the commission
of homicide and robbery was convicted of homicide only and acquitted of the robbery charge in
the absence of evidence establishing the corpus delicti of robbery.
The rights guaranteed a person under Art. III, Sec. 12 of the Constitution are not available
when he is not under custodial investigation. Thus, a statement or confession voluntarily given by
an employee during an administrative investigation that he had malversed his employer’s funds is
admissible although without a prior information of said rights and without the assistance of
counsel.71
PEOPLE v. AYSON
G.R. No. 85215, 7 July 1989, 175 SCRA 216
Private respondent was charged with having unlawfully kept for himself the
proceeds of the sale of plane tickets. Management informed him of the
investigation to be conducted. Prior to the investigation, private respondent
informed management in writing of his willingness to settle the irregularities. At
the investigation, private respondent’s answers in response to questions were
taken down in writing. An information for estafa was filed. During trial, the
written offer of evidence included statement of the accused and his handwritten
admission. Accused objected. Hence, this petition.
Issue: Whether the statement and admission of the accused were properly
excluded as evidence.

68
People v. Galit, 135 SCRA 465; Morales v. Ponce-Enrile, 121 SCRA 538.
69
158 SCRA 85.
70
231 SCRA 426.
71
People v. Ayson, 175 SCRA 216.
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Ruling: Accused was not, in any sense, under custodial investigation prior to
and during the administrative inquiry. Thus, a statement or confession
voluntarily given by an employee during an administrative investigation, that he
had malversed his employer’s funds is admissible although without a prior
information of his rights under Article III, Section 12 of the Constitution and
without assistance of counsel.
Similarly competent is the admission of adulterous conduct made by a woman to her husband
when the latter confronted her with incriminatory evidence in their residence.72

ARROYO, JR. v. COURT OF APPEALS

G.R. No. 96602, 19 November 1991, 203 SCRA 750
A criminal complaint for adultery was filed by the husband against his wife
and petitioner. After trial, the Regional Trial Court convicted the petitioner and
the wife, based, among others, on the wife’s admission to her husband, of her
infidelity. This decision was affirmed by the Court of Appeals. The wife later
filed a motion for reconsideration or new trial contending that a pardon had been
extended by her husband. The husband filed a manifestation praying for the
dismissal of the case as he had “tacitly consented” to his wife’s infidelity.
Issue: Whether the admission of adulterous conduct by the wife to her
husband is admissible in evidence.
Ruling: The husband’s testimony relating the admission of adulterous
conduct made by the wife to her husband is admissible in evidence. The husband
was neither a peace officer nor an investigating officer conducting a custodial
investigation; hence, petitioner cannot now claim that the wife’s admission
should have been rejected.

EXAMINATION OF WITNESSES
A. Generally, the testimony of a witness is elicited through questions propounded by the
examining counsel 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.73 The main
purpose of requiring a witness to appear and testify orally in open court is to secure to the adverse
party the opportunity to cross-examine the witness. Another reason for such rule is to enable the
judge to observe the countenance and demeanor of the witness while testifying, an important
factor in determining the credibility of the witness. Therefore, it would be impermissible and
would be a grave abuse of discretion on the part of the trial judge to accept the affidavit of a
witness in lieu of the latter’s direct testimony subject to cross-examination.74

PEOPLE v. ESTENZO
G.R. No. L-41166, 25 August 1976, 72 SCRA 428
After the accused had testified in the criminal case, his counsel manifested
that the subsequent witnesses would no longer be called to testify. Their
affidavits, subject to cross-examination, would instead be filed in lieu of oral
testimony. Despite the prosecution’s objection, the respondent judge agreed to
the defense counsel’s idea and issued an Order to this effect.
72
Arroyo v. Court of Appeals, 203 SCRA 750.
73
Rule 132, Sec. 1.
74
People v. Estenzo, 72 SCRA 428.
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Issue: Whether the respondent judge gravely abused his discretion in

accepting the affidavit of a witness in lieu of direct testimony.
Ruling: The main and essential purpose of requiring a witness to appear and
testify orally at a trial is to secure, for the adverse party, the opportunity of cross-
examination. It is only when the witness testifies orally that the judge may have a
true idea of his countenance, manner, and expression, which may confirm or
detract from the weight of his testimony.
There is an additional advantage to be obtained in requiring that the direct
testimony of the witness be given orally in court. Under the rules, only questions
directed to the eliciting of testimony which, under the general rules of evidence, is
relevant to, and competent to prove, the issue of the case, may be propounded to
the witness. A witness may testify only on those facts which he knows of his own
knowledge. Thus, on direct examination, leading questions are not allowed,
except in such cases as the court may, conformably with the Rules, determine to
be exceptional.
It is obvious that the judge’s ability to make such determinations would be
subverted, and the orderly dispatch of the business of the courts thwarted, if trial
judges were allowed to adopt any procedure in the presentation of evidence other
than what is specifically authorized by the Rules.
The aforesaid rule is relaxed under the Rule on Summary Procedure (RSP) where in criminal
cases covered by said Rule, the affidavits and counter-affidavits of the parties’ witnesses
constitute their direct testimonies subject however to cross-examination, re-direct or re-cross
examination.75 And in civil actions covered by the RSP, no examination of witnesses is even
required or allowed; the parties simply submit the affidavits of their witnesses and other evidence
on the factual issues defined in the preliminary conference order prepared by the judge after the
termination of said conference.76
Another exception is found in the trial of agrarian cases where the parties submit affidavits of
their witnesses subject to cross-examination.77
B. One question often asked is whether a witness may be allowed to testify by narration. While
the general rule is that material and relevant facts are elicited from a witness by questions put to
him, it still rests within the sound discretion of the trial judge to determine whether a witness will
be required to testify by question and answer, or will be permitted to testify in narrative form.78
“There is no legal principle which prevents a witness from giving his testimony in
narrative form if he is requested to do so by counsel. A witness may be allowed to
testify by narration if it would be the best way of getting at what he knew or could
state concerning the matter at issue. It would expedite the trial and would
perhaps furnish the court a clearer understanding of the matters related as they
occurred. Moreover, narrative testimony may be allowed if material parts of his
evidence cannot be easily obtained through piecemeal testimonies. But if in
giving such testimony, the witness states matters irrelevant or immaterial or
incompetent, it is the right and duty of counsel objecting to such testimony to
interpose and arrest the narration by calling the attention of the court
particularly to the objectionable matter and, by a motion to strike it out, obtain a
ruling of the court excluding such testimony from the case.79 While a witness may
be permitted in the discretion of the court to narrate his knowledge of material
facts bearing upon the case without specifically being interrogated in detail, it is
75
Sec. 15, Rules on Summary Procedure.
76
Sec. 9, Ibid.
77
P.D. 946, Sec. 16.
78
98 C.J.S. Sec. 325, p. 26.
79
98 C.J.S., Ibid.
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also within the discretion of the court to prohibit a witness from volunteering
unsought information in connection with the case.”80
C. Now, for some jurisprudential rules regarding uncompleted testimonies:

1. When a witness had testified on direct examination but was not cross-examined
because he dies after numerous postponements of his cross-examination attributable
to the cross-examining party whereas the witness had all the time been available for
cross-examination, his direct testimony shall be allowed to remain in the record and
cannot be ordered stricken off. The cross-examiner is deemed to have waived his
right to cross-examine.81

2. On the contrary, when cross-examination is not and cannot be done or completed due
to causes attributable to the party offering the witness, the uncompleted testimony is
thereby rendered incompetent.82

3. The direct testimony of a witness who dies before conclusion of the cross-
examination can be stricken only insofar as not covered by the cross-examination,
and absence of a witness is not enough to warrant striking his testimony for failure to
appear for further cross-examination where the witness has already been sufficiently
cross-examined, and the matter on which further cross-examination is sought is not
in controversy.83
D. A judge may intervene in the trial of a case to promote expedition and avoid unnecessary
waste of time or to clear up some ambiguity. A judge is not a mere referee like that of a boxing
bout. He should have as much interest as counsel in the orderly and expeditious presentation of
evidence, calling the attention of counsel to points at issue that are overlooked, directing them to
ask questions that would elicit the facts on the issues involved, clarifying ambiguous remarks.
The number of time a judge intervenes in the examination of a witness is not necessarily an
indication of bias. It cannot be taken against a judge if his clarifying questions happen to reveal
certain truths which tend to spoil the theory of one party.84
E. The court may stop the introduction of further testimony upon any particular point when the
evidence upon it is already so full that more witnesses to the same point cannot be reasonably
expected to be additionally persuasive. But this power should be exercised with caution.85

AUTHENTICATION AND PROOF OF DOCUMENTS

For the purpose of their presentation in evidence, documents are either public or private.86
Public documents need not be authenticated; private documents have to be
authenticated to be admissible in evidence.
There are only three types of public documents, viz.: (1) the written official acts or records of
official acts of the sovereign authority, official bodies and tribunals and public officers, whether of
the Philippines or of a foreign country, e.g., transfer certificate of title, the Official Gazette, entries
in the book of entries of judgments; (2) documents acknowledged before a notary public except
last wills and testaments; (3) public records, kept in the Philippines, of private documents

80
People v. Calixtro, et. al., 193 SCRA 303.
81
Dela Paz, Jr., v. Intermediate Appellate Court, 154 SCRA 65.
82
Ortigas, Jr., v. Lufthansa German Airlines, 64 SCRA 610.
83
People v. Hon. Alberto V. Señeris, 99 SCRA 92.
84
People v. Glenn Hatton, 210 SCRA 1.
85
Rule 133, Sec. 6, Rules of Court.
86
Rule 132, Sec. 19, Ibid.
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required by law to be entered therein, e.g., certified true copies of birth certificates or of death
certificates issued by the local civil registrar.87
All other writings are private and thus ought to be authenticated. Their due execution and
genuineness must be proved either (1) by anyone who saw the document executed or written; or
(2) by evidence of the genuineness of the signature or handwriting of the maker. 88 Note that the
opinion of an ordinary witness regarding the handwriting of a person is admissible under Rule
130, Sec. 50, as an exception to the opinion rule provided the witness is shown to have sufficient
familiarity with the handwriting.
The last paragraph of Rule 132, Sec. 20 states that “Any other private document need only be
identified as that which it is claimed to be.” This provision should be taken in relation to the first
paragraph which reads: “Before any private document offered as authentic is received in
evidence, its due execution and genuineness must be proved . . . “ If it is offered as a genuine
writing, it must be proved to be genuine. If it is offered as a forgery, it must be proved to be a
forgery. If a private writing is offered not as an authentic document, it need only be identified as
that which the offeror claims it to be. Thus, if an anonymous letter a party has received is relevant
to the issues in a case, he need not authenticate it since he cannot possibly do that anyway. He
only has to identify it as the anonymous letter he had received. The authenticity of the document
is immaterial for he is not offering it as authentic. An ancient document, although private in
nature, needs no authentication either; provided it appears to be more than thirty years old, is
produced from a custody in which it would naturally be found if genuine, and is unblemished by
any alteration or circumstances of suspicion.89 Of course, also, if the authenticity of a private
document is judicially admitted by the other, a party need not authenticate it.
Not all public documents have the same probative value. Documents consisting of entries in
public records made in the performance of a duty by a public officer are prima facie evidence of
the facts therein stated.90 Hence, the entries made by the clerk of court in the book of entries of
judgments are prima facie evidence of the entered facts; the clerk of court need not be called to
attest to the truth thereof. Such evidence of course are only prima facie, i.e., good until rebutted
by reliable contradictory evidence.
But “all other public documents are evidence, even against a third person, of the fact which
gave rise to their execution and of the date of the latter.”91 Thus, a certified true copy of a death
certificate issued by the local civil registrar – although a public document – is proof only of the
fact which gave rise to its execution, i.e., the fact of death and the date of that fact. The death
certificate is not evidence of the cause of death, which ought to be proved by competent evidence.

TENDER OF EXCLUDED EVIDENCE

Evidence formally offered by a party may be admitted or excluded by the court. If a party’s
offered documentary or object evidence is excluded, he may move or request that it be attached to
form part of the record of the case. If the excluded evidence is oral, he may state for the record
the name and other personal circumstances of the witness and the substance of the proposed
testimony. If a question asked of a witness by the counsel who presented him is objected to and
the objection is sustained, counsel may manifest for the record what the witness would have
answered if the witness had been allowed to do so. This procedure is known as offer of proof or
tender of excluded evidence92 and is made for purposes of appeal. If an adverse judgment is
eventually rendered against the offeror, he may in his appeal assign as error the rejection of the
excluded evidence. The appellate court will better understand and appreciate the assignment of
87
Ibid.
88
Rule 132, Sec. 20, Rules of Court.
89
Rule 132, Sec. 22, Ibid.
90
Rule 132, Sec. 23, Ibid.
91
Ibid.
92
Rule 132, Sec. 40.
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error if the evidence involved is included in the record of the case. And since the offer of proof is
for appellate purposes, the same cannot be denied by the trial court.