Evidence

EVIDENCE

Basic Concepts and Principles

Evidence in General

Evidence is the mode and manner of proving competent

facts in judicial proceeding.
Classification Of Evidence

According to Form

1. Object or real or autoptic evidence or physical evidence or tangible

evidence- that which is directly addressed to the senses of the court
and consists of tangible things exhibited in court.

Note:
Most reliable evidence

2. Testimonial evidence- that which is submitted to the court through

the testimony or deposition of a witness. It is that which directly
comes out of the witness’s mouth, oral or written, such as depositions
and affidavits.

Note:
Least reliable but most important or needed evidence
3. Documentary evidence- it consists of writings or any
material containing letters, words, numbers, figures,
symbols or other modes of written expressions offered as
proof of their contents.

Note:
Governed by Best Evidence Rule, Parol Evidence Rule
and Electronic Evidence Rule
Other Classification of Evidence Furnished by the Rules and
Other Text Writers

1. Relevant evidence- evidence having any value in reason

as tending to prove any matter provable in an action.

2. Material evidence- evidence directed to prove a fact in

issue as determined by the rules of substantive law and
pleading.

3. Competent evidence- evidence that is not excluded by

the rules, statute or the Constitution.
4. Direct evidence- that which proves the fact in dispute
without the aid of any inference or presumption.

5. Circumstantial evidence- the proof of fact or facts from

which, taken either singly or collectively, the existence of
the particular fact in dispute may be inferred as a necessary
or provable consequence.
6. Cumulative evidence- evidence of the same kind and to
the same state of facts.

7. Corroborative evidence- additional evidence of a

different character to the same point.
8. Expert evidence- the testimony of one possessing in
regard to a particular subject or department of human
activity, knowledge not usually acquired by other persons.
9. Prima Facie - that which, standing alone, unexplained or
uncontradicted, is sufficient to maintain the proposition
affirmed.

10. Conclusive - the class of evidence which the law does

not allow to be contradicted.
11. Primary or Best evidence- that which the law regards as
affording the greatest certainty of the fact in question

12. Secondary or Substitutionary Evidence- that which is

inferior to the primary evidence and is permitted only when
the best evidence is not available.
13. Positive evidence- when a witness affirms that a fact did
or did not occur.

14.  Negative evidence- when a witness states he did not see

or know of the occurrence of a fact.
15. Electronic evidence- document or information received,
recorded, transmitted, stored, processed or produced
electronically.

16. Forgotten evidence- evidence which was not presented

in court because of oversight or forgetfulness of a party or
counsel.
17. Exculpatory evidence- that evidence which will excuse a
person from an alleged fault or crime.

18. Evidence Aliunde or Extraneous evidence- evidence

from outside or another source.

19. Inculpatory evidence- are evidence which has the

tendency to implicate or incriminate a person.
20. Self-serving evidence- one made by the party to favor
his own interest. It is one made by a party out of court.

21. Opinion evidence – evidence given by an ordinary

person regarding of what he thinks.

22. Rebuttal evidence- evidence that will contradict the

other party’s evidence
Classification of evidence that which is submitted to the
court through the testimony or deposition of a witness. It
is that which directly comes out of the witness’s mouth,
oral or written, such as depositions and affidavits.

a. Autoptic
b. Testimonial
c. Documentary
d. Object
Classification of evidence that which is submitted to the
court through the testimony or deposition of a witness. It
is that which directly comes out of the witness’s mouth,
oral or written, such as depositions and affidavits.

a. Autoptic
b. Testimonial
c. Documentary
d. Object
Evidence having any value in reason as tending to prove
any matter provable in an action.

a. Competent
b. Material
c. Relevant
d. Direct
Evidence having any value in reason as tending to prove
any matter provable in an action.

a. Competent
b. Material
c. Relevant
d. Direct
Classification of evidence which refers to additional
evidence of a different character to the same point.

a. Circumstancial
b. Cumulative
c. Corroborative
d. Expert evidence
Classification of evidence which refers to additional
evidence of a different character to the same point.

a. Circumstancial
b. Cumulative
c. Corroborative
d. Expert evidence
Evidence that which, standing alone, unexplained or
uncontradicted, is sufficient the proposition affirmed.

a. Positive evidence
b. Negative evidence
c. Prima Facie evidence
d. Conclusive evidence
Evidence that which, standing alone, unexplained or
uncontradicted, is sufficient the proposition affirmed.

a. Positive evidence
b. Negative evidence
c. Prima Facie evidence
d. Conclusive evidence
Evidence it is that which the law regards as affording the
greatest certainty of the fact in question.

a. Primary Evidence
b. Best Evidence
c. Secondary Evidence
d. Both a and b
Evidence it is that which the law regards as affording the
greatest certainty of the fact in question.

a. Primary Evidence
b. Best Evidence
c. Secondary Evidence
d. Both a and b
Evidence from outside or another source.

a. Rebuttal evidence
b. Exculpatory evidence
c. Evidence Aliunde
d. Electronic evidence
Evidence from outside or another source.

a. Rebuttal evidence
b. Exculpatory evidence
c. Evidence Aliunde
d. Electronic evidence
General Provisions (Rule 128)

SECTION 1. Evidence defined. — Evidence is the means,

sanctioned by these rules, of ascertaining in a judicial
proceeding the truth respecting a matter of fact.
Main Source of the Law on Evidence:

 Rules of Court Rules 128-133 (134)

 PROOF, defined- the result or the effect of evidence.

 FACTUM PROBANDUM- the ultimate fact or the fact sought to be

established. It is the fact to be proved.

 FACTUM PROBANS- factum probans is the evidentiary fact or the

fact by which the factum probans is to be established

 FALSUS IN UNO, FALSSUS IN OMNIBUS- literally means” false in

one thing, false in everything’-The doctrine means that if the
testimony of a witness on a material issue is willfully false and given
with an intention to deceive, the jury may disregard all the witness’
Sec. 2. Scope. — The rules of evidence shall be the same in
all courts and in all trials and hearings, except as otherwise
provided by law or these rules.
Other Laws Governing Evidence

- GR: Rules of evidence is governed by the Rules of Court (RoC)

- EXC: Application of other laws

Examples:
- RA 4200 (Anti Wiretapping),
- Code of Commerce (weight of entries in merchant books)
- Electronic Commerce Act
- NCC, RPC
- Constitution: Bill of Rights - Art III
o Sec 2: The right of people against unreasonable searches and
seizures
o Sec 3: The privacy of communication and correspondence
shall be inviolable (EXC. By order of court or when
provided by law for safety and public order)
o Evidence obtained in violation of such provisions shall be
Sec. 3. Admissibility of evidence. — Evidence is admissible
when:

• it is RELEVANT (Relevancy) to the issue and

• is NOT EXCLUDED BY THE LAW OR THE RULES OF COURT

(Competency).
Kinds of Admissibility of evidence

1. Conditional Admissibility of Evidence- Evidence that will

be admitted although seemingly not admissible provided
that its relevancy would be shown in a later stage of the
trial.

2. Curative Admissibility of Evidence- Evidence which will be

admitted although normally inadmissible because similar
inadmissible evidence has been introduced by the other
party.

3. Multiple Admissibility of Evidence- when the evidence not

admissible for one purpose but admissible for two or more
purposes.
According to section 3 Rule 128. What are the
requirements for the evidence to be admissible?

a. Object and documentary

b. Testimonial and Object
c. Positive and Negative
d. Relevant and Competent
According to section 3 Rule 128. What are the
requirements for the evidence to be admissible?

a. Object and documentary

b. Testimonial and Object
c. Positive and Negative
d. Relevant and Competent
PLAIN VIEW RULE- Under this doctrine, unlawful objects
within the plain view of an officer who has the right to be in
the position to have that view are subject to confiscation
and are admissible in evidence.
EXCLUSIONARY RULE- A rule of evidence that excludes
evidence obtained in violation of one’s constitutional rights
or obtained through illegal means, such as those obtained
by tortures and the like.
FRUIT OF THE POSONOUS TREE- this doctrine states that
once the primary source “the tree” is shown to have been
obtained unlawfully, any derivative evidence, “the fruit”
derived from it (meaning the tree) is likewise not admissible.
Thus, evidence illegally obtained by the State should not be
used to gain other evidence because the illegally obtained
evidence taints all evidence subsequently obtained.
SILVER PLATTER RULE- The doctrine, now discredited (no
longer followed in the U.S.), that allowed evidence seized by
state officers in an illegal search and seizure to be used
against the accused in a criminal trial.
Sec. 4. Relevancy; collateral matters. — Evidence must have
such a relation to the fact in issue as to induce belief in its
existence or non-existence. Evidence on collateral matters
shall not be allowed, except when it tends in any reasonable
degree to establish the probability or improbability of the
fact in issue.

COLLATERAL MATTERS- Are facts and circumstances other

than the facts in issue which are being offered in evidence
as bases for inference as to the existence or non-existence
of a fact in issue.
III. What Need Not Be Prove
[JUDICIAL NOTICE AND ADMISSIONS]
(RULE 129)

JUDICIAL NOTICE - the cognizance of certain facts which

judges may properly take act on without proof because they
already know them.
Section 1. Judicial notice, when mandatory. — A court shall
take judicial notice, without the introduction of evidence,
of:

1. The existence and territorial extent of states,

2. Their political history,
3. Forms of government and symbols of nationality,
4. The law of nations,
5. The admiralty and maritime courts of the world and their
seals,
6. The political constitution and history of the Philippines,
7. The official acts of legislative, executive and judicial
departments of the Philippines, the laws of nature,
8. The measure of time, and
9. The geographical divisions.
Sec. 2. Judicial notice, when discretionary. — A court may
take judicial notice of matters which are:

1. of public knowledge, or
2. are capable to unquestionable demonstration, or
3. ought to be known to judges because of their judicial
functions.
Judicial Notice are Discretionary When it falls among the
following except?

a. Of public knowledge
b. Are capable to unquestionable demonstration, or
c. The existence and territorial extent of states,
d. ought to be known to judges because of their judicial
functions.
Judicial Notice are Discretionary When it falls among the
following except?

a. Of public knowledge
b. Are capable to unquestionable demonstration, or
c. The existence and territorial extent of states,
d. ought to be known to judges because of their judicial
functions.
Sec. 3. Judicial notice, when hearing necessary. — During
the trial, the court, on its own initiative, or on request of a
party, may announce its intention to take judicial notice of
any matter and allow the parties to be heard thereon.

After the trial, and before judgment or on appeal, the

proper court, on its own initiative or on request of a party,
may take judicial notice of any matter and allow the parties
to be heard thereon if such matter is decisive of a material
issue in the case. (n)
Sec. 4. Judicial admissions. — An admission, verbal or
written, made by the party in the course of the proceedings
in the same case, does not require proof.

The admission may be contradicted only by:

1. Showing that it was made through palpable mistake or

2. That no such admission was made.

Rules of Admissibility (RULE 130)

A. Admissibility of Object (Real) Evidence

Object evidence (real evidence/autoptic evidence) is

tangible thing submitted to the court for inspection,
exhibition or demonstration.
SECTION 1. Object as evidence. — Objects as evidence are those
addressed to the senses of the court. When an object is relevant to
the fact in issue, it may be exhibited to, examined or viewed by the
court.

Requisites for the Admissibility of an Object or Real Evidence:

1. The evidence must be relevant
2. The evidence must be authenticated
3. The authentication must be made by a competent witness
4. The evidence must be formally offered

Note:
The right against self-incrimination cannot be invoked against
object evidence.
Chain Of Custody of Evidence

- Refers to the chronological documentation of the seizure,

custody, control, transfer, analysis and disposition of
evidence from the time it was seized up to the time it is
offered in evidence in court. Its purpose is to guaranty the
integrity of the physical evidence and to prevent the
introduction of evidence which is not authentic.
DNA Evidence

- DNA or DEOXYRIBONUCLEIC ACID- is a molecule that

encodes the genetic information in all living organisms. A
persons DNA is the same in each cell and it does not change
throughout a person’s lifetime; the DNA in a person’s
lifetime; the DNA in person’s blood is the same as the DNA
in his saliva, sweat, bone, the root and the shaft of hair,
earwax, mucus, urine, skin tissue and vaginal rectal cells.
Most importantly, because of polymorphisms in human
genetics structure, no two individuals have the same DNA,
with the NOTABLE EXCEPTIONS OF IDENTICAL TWINS
(Agustin v. CA, 40 SCRA 315).
Guidelines in Assessing the Probative Value of DNA Evidence

1. How the samples were collected

2. How they were handled
3. The possibility of contamination
4. The procedure followed in analyzing the samples
5. Whether the proper standards and procedure were
followed in conducting the test; and
6. The qualification of the analyst who conducted the test
Uses of DNA Evidence

1. In criminal actions
2. In civil actions
3. Special proceedings

Note:
The Rules on DNA evidence (RDE) is governed by A.M.
No. 06-11-5-SC, which took effect on October 15, 2007.
B. Admissibility of Documentary Evidence

Categories of Documents as Evidence

1. Writings, or
2. Any material containing modes of written expressions
Requisites for Admissibility of Documentary Evidence

1. The document must be relevant

2. The evidence must be authenticated
3. The document must be authenticated by a competent
witness; and
4. The document must be formally offered in evidence
Sec. 2. Documentary evidence. — Documents as evidence
consist of writing or any material containing letters, words,
numbers, figures, symbols or other modes of written
expression offered as proof of their contents.
Written Instruments

1. BEST EVIDENCE RULE

Best Evidence Rule, (Primary Evidence) (Original Document Rule)

(Contents of Original Writing Rule) defined- it is that rule which states
that when the subject of inquiry is the contents of a document, no
evidence shall be admissible other than the original document itself.
 It is that which affords the greatest certainty of a fact in question.
 The opposite of Best Evidence is Secondary Evidence which is that
evidence that is inferior to the primary evidence is to prevent fraud.
 The purpose of the rule requiring the production of the best
evidence is to prevent fraud.
 Carbon paper copies are considered DUPLICATE ORIGINALS.
 Xeroxed copies/photocopies are not admissible under the best
evidence rule
Sec. 3. Original document must be produced; exceptions. — When the
subject of inquiry is the contents of a document, no evidence shall be
admissible other than the original document itself, except in the
following cases:

(a) When the original has been lost or destroyed, or cannot be

produced in court, without bad faith on the part of the offeror;

(b) When the original is in the custody or under the control of the
party against whom the evidence is offered, and the latter fails to
produce it after reasonable notice;

(c) When the original consists of numerous accounts or other

documents which cannot be examined in court without great loss of
time and the fact sought to be established from them is only the
general result of the whole; and

(d) When the original is a public record in the custody of a public

Exceptions To The Best Evidence Rule

1. When the original has been lost or destroyed or cannot be

produced in court, without bad faith on the part of the offeror;

2. When the original is in the custody or under the control of the

party against whom the evidence is offered, and the latter fails to
produce it after reasonable notice;

3. When the original consists of numerous accounts or other

documents which cannot be examined in court without great loss of
time and the fact sought to be established from them is only the
general result of the whole; and.

4. When the original is a public record in the custody of a public

officer or is recorded in a public office.
Sec. 4. Original of document.

(a) The original of the document is one the contents of which are the
subject of inquiry.

(b) 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.

(c) When an entry is repeated in the regular course of business, one

being copied from another at or near the time of the transaction, all
the entries are likewise equally regarded as originals.
 Document- a deed, instrument or other duly
authorized paper by which something is proved,
evidenced or set forth.

 Secondary evidence (Substitutionary Evidence)

(Inferior Evidence)-that which is admissible when the
best evidence is not available; or any evidence other than
the original document itself; or one which is inferior to
the best evidence.
2. SECONDARY EVIDENCE

Sec. 5. When original document is unavailable. — 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(any machine copy), or by a recital of its contents in
some authentic document, or by the testimony of witnesses
in the order stated.
When 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.

Before secondary evidence may be admissible in evidence
there must be proof of:

 Due execution of the original;

 Loss, destruction, or unavailability of all such originals

 Reasonable diligence and good faith in search for or

attempt produce the original.
Sec. 6. When original document is in adverse party's
custody or control. — If the document is in the custody or
under the control of adverse party, he must have reasonable
notice to produce it. If after such notice and after
satisfactory proof of its existence, he fails to produce the
document, secondary evidence may be presented as in the
case of its loss.
Sec. 7. Evidence admissible when original document is a
public record. — When the original of document is in the
custody of public officer or is recorded in a public office, its
contents may be proved by a certified copy issued by the
public officer in custody thereof.
Sec. 8. Party who calls for document not bound to offer it. —
A party who calls for the production of a document and
inspects the same is not obliged to offer it as evidence.
3. PAROL EVIDENCE RULE

Parol Evidence – is any evidence aliunde, whether oral or

written, which is intended or tends to vary or contradict a
complete and enforceable agreement embodied in a
document. It is also defined as any outside or extrinsic
evidence introduced to modify or explain or add something
to an agreement that was put in writing.
Parol Evidence Rule - a rule which states that when the
terms of an agreement have been reduced to writing, it is
considered as containing all the terms agreed upon, and
there can be between the parties and their successors in
interest, no evidence of such terms other than the contents
of the written agreement. It means that there can be no
evidence of the terms of the written agreement other than
the terms of the written agreement.
Sec. 9. Evidence of written agreements. — When the terms of an agreement have
been reduced to writing, it is considered as containing all the terms agreed upon
and there can be, between the parties and their successors in interest, no evidence
of such terms other than the contents of the written agreement.

However, a party may present evidence to modify, explain or add to the terms of
written agreement if he puts in issue in his pleading:

(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;

(b) The failure of the written agreement to express the true intent and agreement of
the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their successors in
interest after the execution of the written agreement.

The term "agreement" includes wills.

Exceptions To The Parol Evidence Rule

A party may present evidence to modify, explain or add

to the terms of written agreement if he puts in issue in his
pleading:

1. An intrinsic ambiguity, mistake or imperfection in the

written agreement;
2. The failure of the written agreement to express the true
intent and agreement of the parties thereto;
3. The validity of the written agreement; or
4. The existence of other terms agreed to by the parties or
their successors in interest after the execution of the written
agreement.
Electronic Documents and Electronic Data Messages

1. Definition of Electronic Documents [A.M. 01-701-SC- Rules on

Electronic Evidence]

Section 1(h) Electronic Document- refers to information, or the

representation of information, data, figures, symbols or other modes
of written expressions, described or however represented, by which a
fact may be proved and affirmed, which is received, recorded,
transmitted, stored, processed, retrieved or produced electronically. It
includes digitally signed documents or any print- out, readable by
sight or other means, which accurately reflects the electronic data
message or electronic document.

 For the purpose of the Rules of Evidence “electronic document”

may be used interchangely with “ELECTRONIC DATA MESSAGE”
Section 1- Burden of proving authenticity- The person
seeking to introduce an electronic document in any legal
proceeding has the burden of proving its authenticity in the
manner provided by this Rule.
Section 2- Manner of Authentication- Before any private
electronic document offered as authentic is received in
evidence, its authenticity must be proved by any of the
following means:

a) By evidence that it had been digitally signed by the

person purported to have signed the same;

b) By evidence that other appropriate security procedures

or devices as may be authorized by the Supreme Court or by
law for authentication of electronic documents were applied
to the document; or

c) By other evidence showing its integrity and reliability to

the satisfaction of the judge
 Section 3- Proof of electronically notarized document-
A document electronically notarized in accordance with the
rules promulgated by the Supreme Court shall be
considered as public document and proved as a notarial
document under the Rules of Court.
Electronic Evidence may be Used on Any of the Following
Purposes:

1. To establish a right
2. To extinguish an obligation
3. To prove or affirm a fact (Sec. 1 [h] Rules on Electronic
Evidence)

Application of Electronic Evidence

1. Civil Actions;
2. Quasi-Judicial Proceedings; and
3. Administrative Proceedings

 ELECTRONIC EVIDENCE IS NOT APPLICABLE TO CRIMINAL

CASES
The following are the requisites for the Admissibility of an
Object and Documentary evidence except?

a. The evidence must be irrelevant

b. The evidence must be authenticated

c. The authentication must be made by a competent

witness

d. The evidence must be formally offered

The following are the requisites for the Admissibility of an
Object and Documentary evidence except?

a. The evidence must be irrelevant -relevant

b. The evidence must be authenticated

c. The authentication must be made by a competent

witness

d. The evidence must be formally offered

Admissibility of Testimonial Evidence

1. QUALIFICATION OF WITNESSES

Sec. 20. Witnesses; their qualifications. — Except as

provided in the next succeeding section, all persons who can
perceive, and perceiving, can make their known perception
to others, may be witnesses.

Religious or political belief, interest in the outcome of the

case, or conviction of a crime unless otherwise provided by
law, shall not be ground for disqualification.
 Witness defined- a person who makes a statement to a
judicial tribunal on a question of fact.

 Qualifications of child witness:

• He must have capacity of observation
• He must have capacity of recollection
• He must have capacity of communication

 Qualification of a Witness:
• All persons who can perceive and perceiving, and
• Can make known their perception to others may be
witnesses.
Types of Witnesses:

1. Competent Witness- One who has all the qualifications

to testify. Thus he can perceive and can make known his
perception to others regardless of political or religious belief
or interest and conviction of a crime. He/she is not legally
disqualified from testifying in courts of justice, by reason of
mental incapacity, interests or the commission of crimes, or
other cause rendering him excluded from testifying.

2. Credible witness- one whose testimony is worth of credit

and belief. One who is not disqualified to testify by mental
incapacity, crime or other causes.
3. Instrumental witnesses- a witness who attests to the
execution of a will or testament and affirms the formalities
attendant to said execution.

4. Biased witness- on who because of his relation to the

cause or to the parties is such that he has an incentive to
exaggerate or give false color to his statements, or to
suppress or pervert the truth, or to state what is false.

5. Dishonest witness- a witness who professes to

remember things upon which he cannot be readily be
contradicted and who declares that he forgets those upon
which he would be open to contradiction. He usually takes
refuge behind the shelter afforded by the phrase “I don’t
remember”.
Sec. 21. Disqualification by reason of mental incapacity or immaturity.
— 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.

Deaf and mutes are competent witnesses when: they can

understand the nature of an oath, can comprehend facts they are
going to testify on, and can communicate their ideas through qualified
interpreter.

A mental retardate is still qualified witness if he can make known

his perceptions to others.
Two Tests to Determine the Insanity of a Person

1. TEST OF COGNITION- when the accused committed the

crime while under complete deprivation of intelligence. We
follow this rule in determining insanity.

2. TEST OF VOLITION- when the accused committed the

crime while there is total deprivation of the freedom of will.
What is this tests to Determine the Insanity of a Person
when the accused committed the crime while under
complete deprivation of intelligence.

a. Paraffin test
b. Testicles
c. Test of Cognition
d. Test of Volition
What is this tests to Determine the Insanity of a Person
when the accused committed the crime while under
complete deprivation of intelligence.

a. Paraffin test
b. Testicles
c. Test of Cognition
d. Test of Volition
PRIVILEGED COMMUNICATION, defined- communications
received in confidence by a person from another by reason
of trust or intimate relationship may not be revealed to the
court.
Sec. 22. Disqualification by reason of marriage (Marital
Disqualification Rule/Spousal Disqualification Rule)). —
During their marriage, neither the husband nor the wife may
testify for or against the other without the consent of the
affected spouse, except in a civil case by one against the
other, or in a criminal case for a crime committed by one
against the other or the latter's direct descendants or
ascendants.

This privilege can be lost by consent or failure to object.

REASONS FOR THE MARITAL DISQUALIFICATION RULE:

1. The policy of the law is to guard the confidence of

private life even at the risk of occasional failure of justice.

2. To preserve harmony between the husband and wife and

family.

3. There is identity of interests between the husband and

the wife.
Sec. 23. Disqualification by reason of death or insanity of
adverse party. (Survivorship Disqualification Rule or Dead
Man’s Statute) — 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 mind.

This privilege may be waived by cross examining the witness

REASON OR BASIS OF THE DEAD MAN STATUTE

1. If one party to the alleged transaction is precluded from

testifying by death, insanity or mental disabilities, the other
party should not take advantage of it by giving his own
uncontradicted account of what transpired.

2. This rule is designed to close the lips of the party plaintiff

when death has closed the lips of the other party
defendant, in order to remove from the surviving party the
temptation to falsehood and the great possibility of
fictitious and exaggerated claims against the deceased.
Sec. 24. Disqualification by reason of privileged
communication. — The following persons cannot
testify as to matters learned in confidence in the
following cases:
(a) The husband or the 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 one
against the other, or in a criminal case for a crime
committed by one against the other or the latter's direct
descendants or ascendants; (Marital Communication
Rule/Spousal Immunity Rule/Husband and Wife Privilege)
(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 examined, without the
consent of the client and his employer, concerning any fact
the knowledge of which has been acquired in such capacity;
(c) A person authorized to practice medicine, surgery or
obstetrics cannot in a civil case, without the consent of the
patient, be examined as to any advice or treatment given by
him or any information which he may have acquired in
attending such patient in a professional capacity, which
information was necessary to enable him to act in capacity,
and which would blacken the reputation of the patient;
(d) A minister or priest cannot, without the consent of the
person making the confession, be examined as to any
confession made to or any advice given by him in his
professional character in the course of discipline enjoined by
the church to which the minister or priest belongs;
(e) A public officer cannot be examined during his term of
office or afterwards, as to communications made to him in
official confidence, when the court finds that the public
interest would suffer by the disclosure.
For example, Adrian Berde served as assistant secretary for
the Department of National Defense. As assistant secretary,
he received communications regarding foreign military
activity within Philippine territorial waters and was part of
the inter-agency firm that drew tactical plans to address the
said activity. During his tenure as assistant secretary, Adrian
cannot be made to testify as to the communications he
received because the public interest will suffer if the details
of the intelligence on foreign milttary activity, as well as the
tactical plans, were made public.
Grounds For Disqualification Of A Witness

1. Disqualification by reason of mental incapacity or

immaturity;
2. Disqualification by reason of marriage;
3. Disqualification by reason of death or insanity of adverse
party;
4. Disqualification by reason of privileged communication
between:
a) husband and wife;
b) attorney and client;
c) physician and patient;
d) priest and penitent;
e) public office (privilege of state secrets)
Persons who are Disqualified to Become a Witness by
Reason of Mental Incapacity or Immaturity

1. 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.

2. Children whose mental maturity is such as to render

them incapable of perceiving the facts respecting which
they are examined and relating them truthfully.
PRIVILEGED COMMUNICATION, defined- communications
received in confidence by a person from another by reason
of trust or intimate relationship may not be revealed to the
court.
DISQUALIFICATION BY REASON OF MARRIAGE,
defined- according to this rule, during their marriage,
neither the husband or the wife may testify for or against
the other without the consent of the affected spouse,
except:

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

2. In a criminal case for a crime committed by one against

the other or the latter’s direct descendants or ascendants
Requisites of Marital or Spousal Immunity Rule:

1. There must be a valid marriage;

2. That marriage must be existing at the time of the offer of
the testimony;
3. The spouse is a party to the transaction

The marital Communication Rule may be waived by:

1. Failure to object to the testimony

2. The spouse calls the other spouse to testify
Disqualification by Reason of Death or Insanity of Adverse
Party Rule, defined- according to this rule, parties or
assignors 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, cannot testify as to any matter of
fact occurring before the death of such deceased person or
before such person became of unsound mind.
Requisites of Dead Man’s Statute

1. That the witness offered for examination is a party

plaintiff, or the assignor of said party, or a person in
whose behalf a case is prosecuted;
2. The case is against the executor or administrator or other
representative of a person deceased or of unsound mind;
3. The case is upon a claim or demand against the estate of
such deceased or unsound mind;
4. The testimony to be given is on a matter of fact occurring
before the death of the deceased person or before such
person became of unsound mine.
Disqualification by Reason of Privileged
Communication, defined- a rule which state that the
following person persons cannot testify as to
matters learned in confidence in the following cases:
1. Husband or 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 one
against the other, or in a criminal case for a crime
committed by one against the other or the latter’s direct
descendants or ascendants.
2. 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 the attorney’s
secretary, stenographer, or clerk be examined, without the
consent of the client and his employer concerning any fact
the knowledge of which has been acquired in such capacity;
3. Person authorized to practice medicine, surgery or
obstetrics- in a civil case cannot be examined, without the
consent of the patient as to any advice or treatment given
by him or any information which he may have acquired in
attending such patient in a professional capacity, which
information was necessary to enable him to act in that
capacity, and which would blacken the reputation of the
patient.
4. Minister or priest- without the consent of the person
making the confession, cannot be examined as to any
confession made or to any advice given by him in his
professional character in the course of discipline enjoined by
the church to which the minister or priest belongs; (This
privileged cannot be waived)
5. Public officer- cannot be examined during his term of
office or afterwards, as to communications made to him in
official confidence, when the court finds that the public
interest would suffer by the disclosure. (This privileged
cannot be waived)
Requisites of Marital Privilege

1. There was a valid marital relation;

2. The privilege is invoked with respect to confidential
communication between the spouses during the marriage;
3. The spouse against whose the testimony is offered has
not given his consent.
Purpose of the Privileged Communication between a lawyer
and client

To encourage clients to make full disclosure to his lawyer in

matters affecting his rights and obligations. However, in
order that communication between a lawyer and his client
may be privileged, it must be for a lawful purpose or lawful
end.
Requisites of Physician and Patient Privilege

1) The privilege is claimed in a civil case

2) The person against whom it is claimed is duly authorized
to practice medicine
3) The physician acquired the information while he was
attending to the patient in his professional capacity
4) The information was necessary for him to act in that
capacity
5) The information must be confidential, that is if disclosed
would blacken the reputation of the patient.
2. Testimonial Privilege

PARENTAL PRIVILEGE- parents cannot be compelled to

testify against his descendants; while FILIAL PRIVILEGE
means, witness cannot be compelled to testify against his
parents or other direct ascendants

Sec. 25. Parental and filial privilege. — No person may be

compelled to testify against his parents, other direct
ascendants, children or other direct descendants.
3. Admission and Confession

Sec. 26. Admission of a party. — The act, declaration or

omission of a party as to a relevant fact may be given in
evidence against him.

 ADMISSION, defined- any statement of a fact by a party

against his interest or unfavorable to the conclusion for
which he contends or is inconsistent with the facts alleged
by him. It is a statement of fact which does not involve an
acknowledgment of guilt or liability (this is the more popular
definition)

 CONFESSION, defined- the declaration of an accused

expressly acknowledging his guilt of the offense charged.
Admission distinguished from Confession:

1. An admission does not necessarily involve an

acknowledgement of guilt as in the case of confession;

2. An admission may be expressed or tacit while a

confession is always express;

3. Admission may be made by third persons and in certain

cases admissible against a party, while a confession can be
made only by the party himself, and in some instances are
admissible against his co-accused.
Types of Admissions

1. Admission by a party
2. Admission by co partner or agent
3. Admission by co conspirator
4. Admission by privies
5. Admission by silence

 Flight from justice is an admission by conduct. “The

wicked flees when no man pursueth, but the innocent is as
bold as a lion.”
Sec. 27. Offer of compromise not admissible. — In civil
cases, an offer of compromise is not an admission of any
liability, and is not admissible in evidence against the offeror.

In criminal cases, except those involving quasi-offenses

(criminal negligence) or those allowed by law to be
compromised, an offer of compromised by the accused may
be received in evidence as an implied admission of guilt.
A plea of guilty later withdrawn, or an unaccepted offer of
a plea of guilty to lesser offense, is not admissible in
evidence against the accused who made the plea or offer.

An offer to pay or the payment of medical, hospital or

other expenses occasioned by an injury is not admissible in
evidence as proof of civil or criminal liability for the injury.
Sec. 28. Admission by third party. — The rights of a party
cannot be prejudiced by an act, declaration, or omission of
another, except as hereinafter provided.

This section is known as the RES INTER ALIOS ACTA ALTERI

NOCERE NON DEBET rule, which means “things done
between strangers should not injure those who are not
parties to them.”
Example.

Junior Chiu and Henry Beltran were charged for cyberlibel

after Junior posted the following message on his social
media account:

"‘JOHN TOBIAS, PANAGUTAN MO ANG MGA UTANG MO.

YUNG 300K NA INUTANG MO KAY HENRY BELTRAN, 5
YEARS NA, DI MO PA RIN BINABAYARAN. NAKIKITA NAMIN
MGA POST MO, PURO KA BAGONG CELFON, CAMERA,
ATBP GADGETS. WAG KANG TUMATAKAS, WALA KANG
PUPUNTAHAN NA HINDI KA NAMIN MAHAHANAP.
MAKONSENSYA KA NAMAN!”
 During the trial of the case, Junior testified that he posted the
message because he felt bad for his friend Henry who did not want
to demand payment from John and that Henry probably wanted him
to post the message. Henry, who had nothing ‘to do with Junior’s
social media post, cannot be prejudiced by Junior’s actions. Junior’s
testimony that Henry probably wanted the message published on
social media is not admissible because Junior does not have
personal knowledge as to Henry’s desire, and Junior’s admission
cannot be taken as Henry’s admission. Most importantly, Junior’s
admission is not admissible against Henry because it would be
unjust to make Henry liable for the social media post, which he was
not aware of, and for which he did not give his consent.
Sec. 29. Admission by co-partner or agent. — The act or declaration of
a partner or agent of the party within the scope of his authority and
during the existence of the partnership or agency, may be given in
evidence against such party after the partnership or agency is shown
by evidence other than such act or declaration. The same rule applies
to the act or declaration of a joint owner, joint debtor, or other person
jointly interested with the party.

Requisites of Admission by a Co-partner or Agent

1. The act or declaration was made within the scope of his authority;
2. It was made during the existence of the partnership or agency;
3. The partnership or agency is proved by evidence other than such
act or declaration.
For example, on 2 August 2017, Addie executed the Special
Power of Attorney (SPA) authorizing her father Boying to
enter into a-contract of lease with potential tenants of her
condominium unit, In the SPA, Addie is the principal, while
Boying, her representative, is the agent. A month later,
Boying met Hue Xi, who was interested in renting the unit.
On 14 September 2017, Boying and Hue Xi signed the
Contract of Lease, with monthly rent set at P15,000.
Surprised at how low the rental fee was, Addie demanded
that Hue Xi pay P25,000 as monthly rent instead. Hue Xi
countered that he will only pay ?15,000 like he agreed with
Boying.
The contents of the SPA can prove that Addie appointed
Boying as an agent and authorized him to enter into the
contract of lease. The date of the SPA (i.e., 2 August
2017) can show that the agency was existing when
Boying entered into the contract of lease. Once these
facts are established by Hue Xi, Hue Xi can then offer the
Contract of Lease as evidence of Addie’s act of agreeing
to the rental fee P15,000 per month, through Boying.
Boying’s acts with respect to the contract of the lease
are admissions of an agent, which bind Addie, the
principal.
Sec. 30. Admission by conspirator. — The act or declaration
of a conspirator relating to the conspiracy and during its
existence, may be given in evidence against the co-
conspirator after the conspiracy is shown by evidence other
than such act of declaration.
For instance, Louie and Kris conspire to shoplift alcohol
from a mini-mart during a city-wide liquor ban. To effect
the shoplifting, Louie borrowed Mai’s car and told Mai,
“Kris and I will steal some soju.” Mai lent Louie her car,
thinking Louie and Kris will only attempt to bribe the
store crew to sell them some alcohol. Once at the store,
Louie spoke with and distracted the cashier. Meanwhile,
Kris hid behind the aisles, took five bottles of soju, and
put them inside his backpack.
In court, the prosecution introduced evidence of the
conspiracy (i.e, CCTV footages showing Louie and Kris
getting out of the car, and Louie distracting the cashier
while Kris steals the alcohol), the existence of the
conspiracy when the admission was made, and the
conspiracy and felony as the substance of the admission.
After establishing these facts, the prosecution introduced
Louie’s extrajudicial admission to Mai as evidence against
both Louie and Kris. If the conspiracy is not established
first, the prosecution can only offer Louie’s admission as
evidence against Louie, but not against Kris, pursuant to
the general rule on res inter alios acta.
This Rule is applicable to extrajudicial admissions and not
to admissions done in open court. If an admission by a
conspirator is made in court, it will be admissible against
the co-conspirators, who will have the opportunity to
cross-examine the declarant.
Sec. 31. Admission by privies. — Where one derives title to
property from another, the act, declaration, or omission of
the latter, while holding the title, in relation to the property,
is evidence against the former.

Privy- one who derives his title to property from another by

purchase, conveyance or some other modes.
Illustration:

Suppose Pia owned “Malicia Farm,” a parcel of agricultural

land. When Pia suddenly passed after being accidentally
hit by a speeding tractor, her properties were inherited by
her favorite granddaughter Jona. Jona was in the process
of having the title to Malicia Farms transferred to her
name when she received a notice to vacate
from a certain Olivia Zang, who claimed to have bought
the land from Pia. Olivia demanded that Jona vacate the
property within 30 days, on the strength of a notarized
contract of sale signed by Pia in favor of Olivia. Jona
contended that she will not honor the sale of the
property because Olivia’s transaction was with Pia and not
with her, the current owner.
In this case, Jona is deemed privy to the sale between Pia
and Olivia. As Pia’s heir, she derives her rights from Pia.
Since Pia has already transferred the title of the property
to Olivia through a valid sale, Pia can no longer transfer
any ownership to Jona. The sale, as well as the written
contract, is binding upon Jona. The written contract is Pia’s
admission, made while she was the owner of the property,
that the title to the property had been validly transferred
to Olivia. This admission by privy is admissible against
Jona. .
Sec. 32. Admission by silence (Adoptive Omission). — An act
or declaration made in the presence and within the hearing
or observation of a party who does or says nothing when
the act or declaration is such as naturally to call for action or
comment if not true, and when proper and possible for him
to do so, may be given in evidence against him.

Basis for the Rule on Admission by Silence

The instinct of man is to resist an accusation or unfounded

claim and defend himself, because it is totally against human
nature to remain silent and say nothing in the face of false
accusations.
For example, Nicky is a member of the housekeeping staff
on the cruise ship M/V Beautiful Seas. During the voyage,
Vladimir, another member of the housekeeping staff, was
found dead in Nicky’s cabin. Capt. Engracio called a crew
meeting to discuss the incident. At the meeting, Max, the
first mate, volunteered the information that Nicky and
Vladimir got into a drunken fight, and Nicky killed Vladimir
by stabbing him with an ice pick. Nicky, who was also
present at the meeting and who heard Max’s accusations
against him, did not give any comment.
Nicky’s silence can be construed as an admission. Nicky’s
human instincts should have compelled him to speak up
and defend himself if Max’s statements were untrue. He
understood Max’s statements, he has the interest to
object if the statements were false, and he had the
opportunity to object. He has knowledge of the facts, and
he could have easily denied that he stabbed Vladimir with
an ice pick. However, he did not do any of these, and his
silence amounts to an agreement with Max’s accusations.
Note, however, that persons under custodial investigation
are not deemed to have admitted the charges if they do
not object or defend themselves during the investigation.
Accused persons have the right to remain silent, and their
exercise of this right during the custodial investigation
cannot be judged as admissions of guilt?
Sec. 33. Confession. — The declaration of an accused
acknowledging his guilt of the offense charged, or of any
offense necessarily included therein, may be given in
evidence against him.

 CONFESSION- a categorical acknowledgement of guilt

made by the accused in a criminal case, without an
exculpatory statement or explanation.
 JUDICIAL CONFESSION- is one made before a court in
which the case is pending and in the course of the legal
proceedings therein, and by itself, can sustain a conviction.

 EXTRAJUDICIAL CONFESSION- one made outside the

court and cannot sustain a conviction unless corroborated
by evidence of corpus delicti.

 CORPUS DELICTI defined- it may refer to:

• The body of the crime or;
• The actual commission of the crime charged; or
• The fact that a crime has been actually committed.
Requisites of Confession:

1. Confession must be express and categorical;

2. Confession must be intelligent;
3. Confession must be voluntarily given;
4. There must be no violation of article III Sec. 12 of the
Constitution.
INTERLOCKING CONFESSION- is a confession in a criminal
case so corroborative of each other as to impose faith that
they must have a basis in fact. Where extrajudicial
confession have been made by several persons charged with
conspiracy and there could have been no collusion with
reference to several confessions, the fact that the
statements are in all material respects identical is
confirmatory of the testimony of the accomplice.
4. Previous Conduct As Evidence (Modus Operandi)

Sec. 34. Similar acts as evidence. — Evidence that one did or

did not do a certain thing at one time is not admissible to
prove that he did or did not do the same or similar thing at
another time; but it may be received to prove a specific
intent or knowledge; identity, plan, system, scheme, habit,
custom or usage, and the like. (Res inter alios act alteri
noceri non debet-Part II)
Note:
This section is known as SIMILAR ACT RULE OR PREVIOUS
CONDUCT RULE.

Basis of the Rule on Similar Act Rule or Previous Conduct

Rule or the Res Inter Alios Acta Alteri Noceri Non Debet
Rule Part 2

The fact that a person has committed the same or similar

acts at some prior time does not mean that he committed
the same act in question.
Sec. 35. Unaccepted offer. — An offer in writing to pay a
particular sum of money or to deliver a written instrument
or specific personal property is, if rejected without valid
cause, equivalent to the actual production and tender of the
money, instrument, or property.
5. Testimonial Knowledge

Testimonial Knowledge Rule- means that the testimony of a

witness must be based on his personal knowledge as
hearsays are excluded.

Personal knowledge - means cognizance of a circumstance

or fact gained directly through firsthand experience or
observation, or through a personal, familial, medical or
professional relationship with the person.
Sec. 36.Testimony generally confined to personal
knowledge; hearsay excluded. — A witness can testify only
to those facts which he knows of his personal knowledge;
that is, which are derived from his own perception, except
as otherwise provided in these rules.
Note:

This section is known as the TESTIMONIAL KNOWLEDGE

RULE.
A witness can testify only to those facts he knows of his
personal knowledge that is, which are derived from his own
perception, meaning the testimony of the witness must be
based on personal knowledge, not on what he heard from
others or what other people told him because what he
heard or what the others told him is hearsay.
Hearsay Evidence- It is evidence not of what the
witness knows himself by personal knowledge but of
what he has heard from others. Hearsay evidence as
a general rule is not allowed. It is also known as
SECOND HAND EVIDENCE.

An evidence is hearsay if its probative value is not

based on the personal knowledge of the witness but
on the knowledge of some other person not on the
witness stand
Hearsay Testimony- A testimony offered against a
party who had no opportunity to cross-examine the
witness.

Double Hearsay (multiple hearsay)- The testimony of a

person with respect to what was told him by another
who was not a witness to a fact but who only obtained
knowledge thereof from another.
Note:

 Hearsay Evidence is excluded because the party against

whom it is presented is deprived of the right and
opportunity to cross examine the persons to whom the
statement is attributed.

 Hearsay evidence may be admitted by failure of the party

to make timely objections.
 Independently relevant Statement- a doctrine which
states that regardless of the truth or falsity of a statement,
the fact that it has been made or relevant, the hearsay rule
does not apply but the statement may be shown.

Ex. Two years ago, my friend told me that his life was in
danger and that he was going to be killed by a certain
person whom he dealt with in his business. After a week,
my friend was gunned down. I want to become a witness for
my late friend, but I am afraid that the statement he gave
me a week before he died may be considered hearsay.

To prove what his friend told him not to prove who killed his
friend.
 The test to determine whether an evidence is hearsay
is whether the adverse party is deprived of the
opportunity to confront or cross examine the witness
against him.
Rule on the Admissibility of an Affidavit

An affidavit is hearsay and hence not admissible unless the

affiant (maker) is presented in court.
DOCTRINE OF INDEPENDENTLY RELEVANT STATEMENT- It
states that when the testimony is presented to establish not
the truth but only the tenor of the statement or the fact that
the statement was made, it is not hearsay and hence
admissible. Under this rule, only the fact that such
statements were made is relevant and admissible, but the
truth or even the falsity thereof is not material.
6. Exceptions To The Hearsay Rule

EXCEPTIONS TO THE HEARSAY EVIDENCE RULE

1. Dying Declaration;
2. declaration Against Interest;
3. Act or declaration About Pedigree;
4. Family reputation or Tradition Regarding Pedigree;
5. Common Reputation;
6. Parts of the Res Gestae;
7. Entries in the Course of Business;
8. Entries in Official Record;
9. Commercial Lists and the Like; and
10.Learned treatises.
Sec. 37. Dying declaration. — The declaration of a dying
person, made under the consciousness of an impending
death, may be received in any case wherein his death is the
subject of inquiry, as evidence of the cause and surrounding
circumstances of such death.

DYING DECLARATION (Ante Mortem Statement Or Staement

In Articulo Mortis Or Declaration In Extremis) - is the
declaration of a person, made under the consciousness of
an impending death, maybe received in any case wherein
his death is the subject of inquiry, as evidence of the cause
and surrounding circumstances of his death
Requisites of a Dying Declaration:

1. That death is imminent and the declarant is conscious of

that fact;
2. The declaration refers to the cause and surrounding
circumstances of such death;
3. The declaration relates to facts which the victim is
competent to testify to;
4. The declaration is offered in a case wherein the
declarant’s death is the subject of inquiry.
5. The declaration was made under the consciousness of an
impending death
6. The declarant thereafter dies
Note:

Dying Declaration is admissible because when a person is at

the point of death, every motive to falsehood is silenced and
the mind is induced by the most powerful considerations to
speak the truth. Truth sits on the lips of dying men.
Sec. 38. Declaration against interest. — The declaration
made by a person deceased, or unable to testify, against the
interest of the declarant, if the fact is asserted in the
declaration was at the time it was made so far contrary to
declarant's own interest, that a reasonable man in his
position would not have made the declaration unless he
believed it to be true, may be received in evidence against
himself or his successors in interest and against third
persons.
DECLARATION AGAINST INTEREST- is the declaration made
by a deceased person, or unable to testify, against the
interest of the declarant, if the fact asserted in the
declaration was at the time it was made so far contrary to
declarant’s own interest that a reasonable man in his
position would not have made the declaration unless he
believed it to be true, may be received in evidence against
himself or his successors in interest and against third
persons.
Requisites of Declaration Against Interest:

1. That the declarant is dead or unable to testify;

2. That it relates to a fact against the interest of the
declarant;
3. That at the time he made said declaration, the declarant
was aware that the same was contrary to his interest;
4. The declarant had no motive to falsify and believed such
declaration to be true.
Gordon’s statement is a declaration against penal interest. It
was offered at’ the rape trial to prove that Bado is not guilty
of the charge. If Gordon’s statement is not

corroborated by other evidence that clearly indicates its

reliability ( e.g., Gordon was seen breaking into the victim’s
room), then the statement will be treated as hearsay, and it
will not be admissible as evidence.
Illustration

At an office retreat, the new employee was sexually

molested by an unidentified man. A group of male friends
talked about the incident a week later during an after-work
drinking session. Gordon, who was sufficiently drunk,
remarked, “Atin-atin lang ‘to... Ako yun, Ako ang nauna,
Champion!” Gordon went home that night and got into a
heated argument with his neighbor. His neighbor attacked
him with a bolo and a baseball bat, and Gordon died from
multiple stab wounds.
A rape case was eventually filed against Bado, who had
been identified as the victim’s most avid suitor in the
office. During the trial, the statement that Gordon -
made during the drinking session was offered by the
defense in an attempt to persuade the court that it was
not Bado but Gordon who committed the felony. .
Sec. 39. Act or declaration about pedigree. — The act or
declaration of a person deceased, or unable to testify, in
respect to the pedigree of another person related to him by
birth or marriage, may be received in evidence where it
occurred before the controversy, and the relationship
between the two persons is shown by evidence other than
such act or declaration.

The word "pedigree" includes relationship, family genealogy,

birth, marriage, death, the dates when and the places
where these facts occurred, and the names of the relatives.
It embraces also facts of family history intimately connected
with pedigree.
Act Or Declaration About Pedigree Requisites

1. The declarant is dead or unable to testify;

2. The declarant is related to the person whose pedigree is
subject of inquiry by birth or marriage;
3. There is evidence to prove the relationship other than
such declaration;
4. That declaration was made ante litem motam (prior to
the controversy) or before the case was filed.
Example.

Yanna died from giving birth. Before she passed, she held
her newborn son John, and she whispered to her brother
Edward, “Si Ray ang ama ni John.”

Twenty years later, in the probate proceedings for Ray’s Last

Will and Testament, John’s filiation was put into issue by
Ray’s sister Danica. Edward thus testified on Yanna’s
declaration about John’s pedigree. Edward also presented
photos of John’s grade school, high school, and college
graduations, showing Ray and John together.
Yanna’s declaration is hearsay because it was made outside
of the probate proceedings. It is admissible, however,
because she was John’s mother and, as such, has accurate
information about John’s pedigree. In addition, Yanna’s
statement is supported by the photos that Edward
presented, and it was made before Danica put John’s
relationship with Ray into question. .
Sec. 40. Family reputation or tradition regarding pedigree.
— The reputation or tradition existing in a family previous to
the controversy (ante litem motam), in respect to the
pedigree of any one of its members, may be received in
evidence if the witness testifying thereon be also a member
of the family, either by consanguinity or affinity. Entries in
family bibles or other family books or charts, engravings on
rings, family portraits and the like, may be received as
evidence of pedigree.
Family Reputation Or Tradition Regarding Pedigree

Requisites
1. There is controversy in respect to the pedigree of any
family member;
2. The reputation or tradition of the pedigree of the subject
person existed prior to the controversy;
3. The witness testifying to the reputation or tradition
regarding the pedigree of the person is also a member of
the family of the subject person.
Example:

During the trial, the age of Shasha at the time when she was
raped was raised as an issue. The defense claimed that
Shasha was already thirteen years old at the alleged time of
the rape and that, therefore, the rape was not statutory. To
rebut this, the prosecution offered the testimony of
Shasha’s Aunt Lisa. Lisa testified that Shasha was only seven
years old at the time and that she was sure of this because,
in their family, they send their children to attend Grade 1
classes when they turn seven years old.
The family tradition, in this case, is the sending off of
children to school when they - turn seven years old. This
tradition is already being practiced by Shasha’s family prior
to the criminal action for rape, where Shasha’s age was put
into issue, and the testimony to prove Shasha’s age was
given by a member of her family. Since all the requisites for
family tradition regarding pedigree are present, Lisa’s
testimony is admissible as an exception to the Hearsay
Rule. .
Sec. 41. Common reputation. — Common reputation
existing previous to the controversy, respecting facts of
public or general interest more than thirty years old, or
respecting marriage or moral character, may be given in
evidence. Monuments and inscriptions in public places may
be received as evidence of common reputation.
Common Reputation

The Cambridge English Dictionary defines “reputation” as

the “opinion that people, in general, have about someone
or something.” In the context of hearsay, common
reputation refers to the collective opinion of the
community regarding a subject. The origin or source of this
reputation is unknown, but the information is universally
known by the members of the community.

Evidence of common reputation is admissible so long as

they are about: (1) the boundaries of or customs affecting
lands in the community; (2) the events of general history
important to the community; and (3) marriage or moral
character.
Examples:

1. In a case for kidnapping, a witness living in the locality

was presented to prove that the place where the victim was
taken was known in the area as an abandoned warehouse.
The warehouse has a common reputation that it is
abandoned and that nobody is present there.

2. In a case for concubinage, the security guard of the

condominium building testified that they knew the accused
as the husband of the woman residing in Unit 10G. The
accuséd and the concubine have a common reputation that
they are married.
Sec. 42. Part of res gestae. — Statements made by a person
while a starting occurrence is taking place or immediately
prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as part of
res gestae. So, also, statements accompanying an equivocal
act material to the issue, and giving it a legal significance,
may be received as part of the res gestae.
PARTS OF THE RES GESTAE- these are statements made by a
person while a startling occurrence is taking place or
immediately prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence. So also a
statement accompanying an equivocal act material to the
issue and giving it legal significance may be received as part
of the res gestae.
Res Gestae refers to those exclamations or statements made
by either the participants, victims, or spectators to a crime
immediately before, during or immediately after its
commission, when the circumstances are such that the
statements were made a spontaneous reaction or utterance
inspired by excitement of the occasion and there was no
opportunity for the declarant to fabricate a false statement.
The statement is one uttered without reflection,
involuntarily, perhaps even without the declarants
awareness of having uttered the same.
Requisites Of Res Gestae

1. The statement must be spontaneous;

2. Made while a startling occurrence is taking place or
immediately prior or subsequent thereto;
3. It must relate to the circumstances of the startling
occurrence.
Example:

1. While on the MRT, Kiko noticed that the man standing in

front of him had his hand inside the bag of the woman who
was facing the other way. Kiko exclaims, “Mandurukot!” The
startling occurrence is the act of pickpocketing, and Kiko’s
exclamation is his quick reaction to witnessing the crime.
Distinguish Res Gestae from Dying Declaration:

1. Dying declaration are made only after the homicidal

attack has been committed; but in res gestae, the statement
may precede accompany or be made after the homicidal
attack.

2. Dying declaration are made only by the victim; while

statements as part of res gestae may be that of the killer
himself or that of the third person.

3. The trustworthiness of the dying declaration is based

upon its being given under an awareness of impending
death, while on res gestae has its justification on the
spontaneity of the statement.
Sec. 43. Entries in the course of business. — Entries made
at, or near the time of transactions to which they refer, by a
person deceased, or unable to testify, who was in a position
to know the facts therein stated, may be received as prima
facie evidence, if such person made the entries in his
professional capacity or in the performance of duty and in
the ordinary or regular course of business or duty.
Entries In The Course Of Business Requisites (Business
Entries Rule or Shop Book Rule)

1. The person made an entry;

2. That person is either dead or unable to testify
3. The entries were made at or near the time of the
transaction
4. The entrant was in a position to know the facts stated
therein
5. The entries were made in his professional capacity or
performance of legal, moral or religious duties.
Examples:

1. Bella is a graduate school librarian. On 16 September

2019, Jestoni borrowed a book on creating explosives.
When Jestoni was checking out the book, Bella wrote
Jestoni’s name on the book card and wrote the book
information on Jestoni’s library card. The: entries in the
book and library cards are entries in the regular course of
business, because as a librarian, it was Bella’s job to write
them, and she had personal knowledge that Jestoni
borrowed the book.
Sec. 44. Entries in official records. — Entries in official
records made in the performance of his duty by a public
officer of the Philippines, or by a person in the performance
of a duty specially enjoined by law, are prima facie evidence
of the facts therein stated.
Entries In Official Records Requisites

1. An entry was made by a person;

2. He is a public officer or one enjoined by law to do so;
3. It was made in the performance of duty;
4. The entrant had sufficient knowledge of the facts stated
by him
Examples:

1. Raya is the evidence custodian of her police precinct. On

the night of a big buy-bust ' operation, Raya received the
evidence seized and marked by the seizing officers. She
recorded the evidence in the logbook by writing down the
case number, the markings on the items, and their
descriptions. The entries on the evidence that Raya received
are entries in official records, because the Evidence Logbook
is an official police record, and Raya made the entries in her
official capacity as evidence custodian. Raya came to ‘know
of the information through the officers who conducted the
buy-bust operations.
Sec. 45. Commercial lists and the like. — Evidence of
statements of matters of interest to persons engaged in an
occupation contained in a list, register, periodical, or other
published compilation is admissible as tending to prove the
truth of any relevant matter so stated if that compilation is
published for use by persons engaged in that occupation
and is generally used and relied upon by them therein.
Sec. 47. Testimony or deposition at a former proceeding. —
The testimony or deposition of a witness deceased or
unable to testify, 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.
Commercial Lists and the Like

Commercial lists are publications catering to a specific

audience belonging to a common industry. They are
published to inform and guide the persons belonging to that
industry in the conduct of their business.
Example

Arthur regularly checks the business pages of the newspaper

to monitor stock prices. He invested in corporate stocks of
fast-food restaurants and technology companies and is thus
interested in monitoring the value of the stocks so that-he
can sell and buy them as necessary. Like Arthur, other stock
investors and brokers rely upon the stock pages
of newspapers to monitor their investments. These pages
are, therefore, commercial lists that are admissible in
evidence.
Sec. 46. Learned treatises. — A published treatise, periodical
or pamphlet on a subject of history, law, science, or art is
admissible as tending to prove the truth of a matter stated
therein if the court takes judicial notice, or a witness expert
in the subject testifies, that the writer of the statement in
the treatise, periodical or pamphlet is recognized in his
profession or calling as expert in the subject.
Examples:

Thea is a well-respected museum curator and an art

professor. She published the book “Impressionism in the
21st Century.” In a case for copyright infringement, the
section of Thea’s work describing a particular painting was
admitted by the court as evidence because Thea is
considered an expert in her field, and her book is exempt
from the Hearsay Rule as a learned treatise.
Example:

Alon and Ava were married on 28 April 2002. Due to

constant fights about their finances, the relationship
deteriorated, and they separated. Alon eventually filed for
annulment, and in the proceedings, testified and was cross-
examined about his marriage to Ava.

While the annulment proceedings for Alon and Ava’s

marriage were underway, Alos met Lou, fell in love, and got
married again on 19 May 2006. Ava eventually learned of
Alon’s subsequent marriage to Lou and filed a case for
bigamy against Alon.
Alon was called to testify in the criminal case for bigamy.
Unfortunately, Alon could not attend the hearing because
he was confined in the hospital, having caught a viral
infection. , Ava’s counsel instead offered in evidence Alon’s
testimony in the annulment case to prove that Alon and Ava
were married. Alon’s testimony is admissible in evidence
because it was given in a former proceeding involving him
and Ava, and it concerns the fact of their marriage. Alon
was also cross-examined in the annulment proceedings,
which means that his testimony had been tested and
probed by the adverse party.
7. Opinion Rule

Sec. 48. General rule. — The opinion of witness is

not admissible, except as indicated in the following
sections.
Sec. 49. Opinion of expert witness. — The opinion of a
witness on a matter requiring special knowledge, skill,
experience or training which he shown to posses, may be
received in evidence.
Sec. 50. Opinion of ordinary witnesses. — The opinion of a
witness for which proper basis is given, may be received in
evidence regarding —

(a) The identity of a person about whom he has adequate

knowledge;
(b) A handwriting with which he has sufficient familiarity;
and
(c) The mental sanity of a person with whom he is
sufficiently acquainted.

The witness may also testify on his impressions of the

emotion, behavior, condition or appearance of a person.
 Unlike experts, ordinary witnesses are not required to
have scholarly or technical familiarity on a technical
subject. They are, however, expected to possess
sufficient familiarity with the identity of a person, the
handwriting of a person, or the mental sanity of a
person, because these are the subjects of their
testimony. Their exposure to the subject makes them
qualified. witnesses, and their opinions on these matters
can be relied on by the court even when they are based
on their interpretation of the facts.
Examples:

1. The mental lucidity of 70-year old Lara was put into

question after she donates her house to Gelo, a 40-year
old man she met through a common ffiend. Lara’s nurse
Elaine testified in a suit for Lara’s guardianship and stated
that in her opinion, Lara is no longer of sound mind. Elaine
explained that Lara would misplace things, like the . TV
remote that Elaine found in the freezer, and that Lara
would sometimes forget who she is even though she had
been taking care of Lara for six years.
2. Dr. Javier had been charged with medical malpractice
for allegedly prescribing restricted drugs to a patient who
doés not need them. Dr. Javier’s secretary of 20 years,
Linda, has a deep familiarity with Dr. Javier’s handwriting
since she keeps the
Character evidence is evidence on an
individual's personality traits, propensities, or
moral standing.
8. Character Evidence

Sec. 51. Character evidence not generally admissible; exceptions: —

(a) In Criminal Cases:

(1) The accused may prove his good moral character which is
pertinent to the moral trait involved in the offense charged.

(2) Unless in rebuttal, the prosecution may not prove his bad moral
character which is pertinent to the moral trait involved in the offense
charged.

(3) The good or bad moral character of the offended party may be
proved if it tends to establish in any reasonable degree the probability
or improbability of the offense charged.
(b) In Civil Cases:

Evidence of the moral character of a party in civil case is

admissible only when pertinent to the issue of character
involved in the case.

(c) In the case provided for in Rule 132, Section 14

Sec. 14. Evidence of good character of witness.

Evidence of the good character of a witness is not
admissible UNTIL such character has been impeached. (17)
Character and Reputation, Distinguished:

Character is what a man really is, reputation is what other

people a man say he is. As a general rule the prosecution
cannot prove the bad moral character of the accused.
However, if the accused in his defense attempts to prove his
good moral character, then the prosecution can introduce
evidence of his bad moral character at the rebuttal stage.
V. Burden of Proof and Presumptions (RULE 131)

1. Burden of Proof

Burden of Proof (ONUS PROBANDI)- is defined as the duty

of a party to present evidence on the facts in issue
necessary to establish his claim or defense.
SECTION 1. Burden of proof. — Burden of proof is the duty
of a party to present evidence on the facts in issue
necessary to establish his claim or defense by the amount of
evidence required by law.
PREPONDERANCE OF EVIDENCE- it means that the
testimony adduced by one side is more credible and
conclusive than that of the other, or the evidence as a
whole, adduced by one side is superior to the other. It is not
meant the mere numerical array of witnesses, but it means
the weight, credit and value of the aggregate evidence on
either side. Preponderance of evidence means evidence
which is of greater weight or more convincing than the
other.

SUBSTANTIAL EVIDENCE- such relevant evidence as a

reasonable mind might accept as adequate to support a
conclusion.
Presumptions

Presumption is an inference of the existence or non-

existence of a fact which courts are permitted to draw from
the proof of other facts.
Classification of Presumptions

1. Presumption of Law (praesumptiones juris)- law requires to be

made from a set of facts.

a) Conclusive/Absolute presumption is an inference which the law

makes so peremptory that it will not allow such inference to be
overturned by any contrary proof however strong. Conclusive
presumption is also known as presumption juris et de jure;

b) Disputable/Rebuttable presumption is a presumption which stands

as true unless rebuttedby contrary evidence. This is also known as
presumption juris tantum.

2. Presumption of fact (praesumptiones hominis)- made from the

facts without any direction of positive requirement of law.
Sec. 2. Conclusive presumptions. — The following are
instances of conclusive presumptions:

(a) Whenever a party has, by his own declaration, act, or

omission, intentionally and deliberately led to another to
believe a particular thing true, and to act upon such belief,
he cannot, in any litigation arising out of such declaration,
act or omission, be permitted to falsify it. [ESTOPPEL IN
PAIS]

(b) The tenant is not permitted to deny the title of his

landlord at the time of commencement of the relation of
landlord and tenant between them. [ESTOPPEL BY DEED]
Example A : A creditor unofficially informs a debtor that the
creditor forgives the debt between them. Even if such
forgiveness is not formally documented, the creditor may be
estopped from changing its mind and seeking to collect the
debt, because that change would be unfair.

Example B: A landlord informs a tenant that rent has been

reduced, for example, because there was construction or a
lapse in utility services. If the tenant relies on this statement
in choosing to remain in the premises, the landlord could be
estopped from collecting the full rent.
Defined as "failure or neglect for an unreasonable and
unexplained length of time, to do that which, by exercising
due diligence, could or should have been done earlier."

a. Estoppel in pais
b. Estoppel by deed
c. Estoppel by laches
d. NOTA
Defined as "failure or neglect for an unreasonable and
unexplained length of time, to do that which, by exercising
due diligence, could or should have been done earlier."

a. Estoppel in pais
b. Estoppel by deed
c. Estoppel by laches
d. NOTA
The tenant is not permitted to deny the title of his
landlord at the time of commencement of the relation of
landlord and tenant between them.

a. Estoppel in pais
b. Estoppel by deed
c. Estoppel by laches
d. NOTA
The tenant is not permitted to deny the title of his
landlord at the time of commencement of the relation of
landlord and tenant between them.

a. Estoppel in pais
b. Estoppel by deed
c. Estoppel by laches
d. NOTA
Sec. 3. Disputable presumptions. — The following
presumptions are satisfactory if uncontradicted, but may be
contradicted and overcome by other evidence:

(a) That a person is innocent of crime or wrong;

(b) That an unlawful act was done with an unlawful intent;
(c) That a person intends the ordinary consequences of his
voluntary act;
(d) That a person takes ordinary care of his concerns;
(e) That evidence willfully suppressed would be adverse if
produced;
(f) That money paid by one to another was due to the latter;
(g) That a thing delivered by one to another belonged to the latter;
(h) That an obligation delivered up to the debtor has been paid;
(i) That prior rents or installments had been paid when a receipt for
the later one is produced;
(j) That a person found in possession of a thing taken in the doing of a
recent wrongful act is the taker and the doer of the whole act;
otherwise, that things which a person possess, or exercises acts of
ownership over, are owned by him;
(k) That a person in possession of an order on himself for the
payment of money, or the delivery of anything, has paid the money or
delivered the thing accordingly;
(l) That a person acting in public office was regularly appointed or
elected to it;
(m) That official duty has been regularly performed;
[presumption of regularity]

(n) That a court, or judge acting as such, whether in the

Philippines or elsewhere, was acting in the lawful exercise of
jurisdiction;

(o) That all the matters within an issue raised in a case were
laid before the court and passed upon by it; and in the like
manner that all matters within an issue raised in a dispute
submitted for arbitration were laid before the arbitrators
and passed upon by them;

(p) The private transactions have been fair and regular;

(q) That the ordinary course of business has been followed;
® That there were sufficient consideration for a contract;

(s) That a negotiable instrument was given or indorsed for a

sufficient consideration;

(t) That an indorsement of a negotiable instrument was

made before the instrument was made before the
instrument was overdue and at the place where the
instrument is dated;

(u) That a writing is truly dated;

(v) That a letter duly directed and mailed was received in
the regular course of mail;

(w) That after an absence of seven years, (7) it being

unknown whether or not the absentee still lives, he is
considered dead for all purposes, except for those of
succession. [presumptive death]

The absentee shall not be considered dead for the purpose

of opening his succession till after an absence of ten years
(10). If he disappeared after the age of seventy-five years, an
absence of five years (5) shall be sufficient in order that his
succession may be opened.
The following shall be considered dead for all purposes
including the division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or

an aircraft with is missing, who has not been heard of for
four years since the loss of the vessel or aircraft;

(2) A member of the armed forces who has taken part in

armed hostilities, and has been missing for four years;

(3) A person who has been in danger of death under other

circumstances and whose existence has not been known for
four years;
(4) If a married person has been absent for four consecutive
years, the spouse present may contract a subsequent
marriage if he or she has well-founded belief that the absent
spouse is already dead. In case of disappearance, where
there is a danger of death the circumstances hereinabove
provided, an absence of only two years shall be sufficient for
the purpose of contracting a subsequent marriage.
However, in any case, before marrying again, the spouse
present must institute summary proceedings as provided in
the Family Code and in the rules for declaration of
presumptive death of the absentee, without prejudice to
the effect of reappearance of the absent spouse.
(x) That acquiescence resulted from the belief that the thing
acquiesced in was conformable to the law or fact;

(y) That things have happened according to the ordinary

course of nature and the ordinary habits of life;
(z) That person acting as co-partners have entered into a contract of
co-partnership;

(aa) That a man and woman deporting themselves as husband and

wife have entered into a lawful contract of marriage;

(bb) That property acquired by a man and a woman who are

capacitated to marry each other and who live exclusively with each
other as husband and wife without the benefit of marriage or under a
void marriage, has been obtained by their joint efforts, work or
industry;

(cc) That in case of cohabitation by a man and a woman who are not
capacitated to marry each other and who have acquired property
through their actual joint contribution of money, property or industry,
such contributions and their corresponding shares including joint
deposits of money and evidence of credit are equal;
(dd) That if the marriage is terminated and the mother contracted
another marriage within three hundred days after such termination of
the former marriage, these rules shall govern in the absence of proof
to the contrary:

(1) A child born before one hundred eighty days after the
solemnization of the subsequent marriage is considered to have been
conceived during such marriage, even though it be born within the
three hundred days after the termination of the former marriage.

(2) A child born after one hundred eighty days following the
celebration of the subsequent marriage is considered to have been
conceived during such marriage, even though it be born within the
three hundred days after the termination of the former marriage.
[presumption of paternity]
(ee) That a thing once proved the exist continues as long as
is usual with things of that nature;

(ff) That the law has been obeyed;

(jj) That except for purposes of succession, when two persons perish
in the same calamity, such as wreck, battle, or conflagration, and it is
not shown who died first, and there are no particular circumstances
from which it can be inferred, the survivorship is determined from the
probabilities resulting from the strength and the age of the sexes,
according to the following rules:
1. If both were under the age of fifteen years, the older is deemed to
have survived;
2. If both were above the age sixty, the younger is deemed to have
survived;
3. If one is under fifteen and the other above sixty, the former is
deemed to have survived;
4. If both be over fifteen and under sixty and the sex be different, the
male is deemed to have survived, if the sex be the same, the older;
5. If one be under fifteen or over sixty, and the other between those
ages, the latter is deemed to have survived. [presumption of
survivorship]
(kk) That if there is a doubt, as between two or more
persons who are called to succeed each other, as to which
of them died first, whoever alleges the death of one prior to
the other, shall prove the same; in the absence of proof,
they shall be considered to have died at the same time. (5a)
Some Common and Well- Recognized Presumptions by
Jurisprudence.

1. That a man and a woman living together are married.

2. That every person is of sound mind as sanity is presumed

and not insanity.

3. That good faith is always presumed and not bad faith.

4. That a person is potent because impotency being an

abnormality is not presumed.
DOCTRINE OF STALE DEMANDS- It is the failure or neglect
for an unreasonable and unexplained length of time to do
that which, by exercising due diligence, could or should have
been done earlier, thus giving rise to a presumption that the
party entitled to assert it has abandoned or declined to
assert it. The doctrine of stale demands is also known as
LACHES.
VI. PRESENTATION OF EVIDENCE (Rule 132)

A. Examination Of Witnesses

SECTION 1. Examination to be done in open court. — The

examination of witnesses presented in a trial or hearing
shall be done in open court, and under oath or affirmation.
Unless the witness is incapacitated to speak, or the
questions call for a different mode of answer, the answers of
the witness shall be given orally.
Oath- A form of attestation by which a person signifies that
he is bound in conscience and that in case he does not tell
the truth divine retribution would follow against him.

Affirmation- A declaration instead of an oath that a person

will tell the truth.
Sec. 2. Proceedings to be recorded. — The entire
proceedings of a trial or hearing, including the questions
propounded to a witness and his answers thereto, the
statements made by the judge or any of the parties,
counsel, or witnesses with reference to the case, shall be
recorded by means of shorthand or stenotype or by other
means of recording found suitable by the court.

A transcript of the record of the proceedings made by the

official stenographer, steno typist or recorder and certified
as correct by him shall be deemed prima facie a correct
statement of such proceedings.
B. Rights and Obligations of Witnesses

Sec. 3. Rights and obligations of a witness. — A witness

must answer questions, although his answer may tend to
establish a claim against him. However, 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:

This is the right of the person against self-incrimination. But

it is not self-executing or automatically operational. It must
be claimed. Otherwise it is considered waived, as by failure
to claim it at the appropriate time. Hence, the accused must
actively invoke it. The proper time to invoke it is when a
question calling for incriminating answer is asked. Note also
that it applies to testimonial compulsion only.
Sec. 4. 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; (Also known as

EXAMINATION IN CHIEF)

(b) Cross-examination by the opponent;

(c) Re-direct examination by the proponent;

(d) Re-cross-examination by the opponent.

C. Order of Examinations of Witnesses
Proper Order In The Examination Of A Witness

1. Direct examination by the proponent- the examination in chief of a

witness by the party presenting him on the facts relevant to the issue.
2. Cross examination- a mode of procedure to test the truth of the
statements made by a witness under direct examination by testing the
recollection, veracity, accuracy, honesty and bias or prejudice of a
witness, and exhibit the improbabilities of his testimonies.
3. Re-direct examination- a procedure to meet and answer the cross
examination, to explain or supplement statements made on cross
examination which tend to create doubts and to contradict matters
drawn forth on direct examination.
4. Re-cross examination- a procedure by which a party re-examines
the witness on matter stated in his re-direct examination.
Sec. 5. Direct examination. — Direct examination is the
examination-in-chief of a witness by the party presenting
him on the facts relevant to the issue.
Sec. 6. 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.
Laying the Predicate- A process of cross examining the
witness by first laying a ground upon cross examination, and
if denied by the witness, then by introducing evidence of
contradictory statements to impeach him.

English Rule on Cross Examination- Under this rule, a

witness maybe examined not only upon matters testified to
by him on his direct examination, but also upon on all
matters relevant to the issue. We follow this style of cross
examination.
Sec. 7. 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.
Sec. 8. 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. [Rebuttal Evidence and
Sur Rebuttal Evidence]
Sec. 9. Recalling witness. — After the examination of a
witness by both sides has been concluded, the witness
cannot be recalled without leave of the court. The court will
grant or withhold leave in its discretion, as the interests of
justice may require.
D. Kinds of Questions Propounded to a Witnesses

LEADING QUESTIONS, defined- it is a question which

suggests to the witness the answer which the examining
party desires to hear. It is one by which the answer of a
witness may be rather an echo to the question than a
genuine recollection of events. As a general rule leading
questions are NOT ALLOWED.
Exceptions to the rule that leading questions are not
allowed (In the following cases leading questions are now
allowed)

1. On cross examination;
2. On preliminary matters;
3. When there is difficulty in getting from ignorant or child
witness, or deaf mute witness a direct and intelligible
answer.
4. Unwilling or hostile witness
5. Witness who is an adverse party
MISLEADING QUESTION defined- it is one which assumes as
true a fact not yet testified to by the witness, or contrary to
that which he has previously stated. Misleading questions
are not allowed.
Sec. 10. Leading and misleading questions. —
A question which suggests to the witness the answer which
the examining party desires is a LEADING QUESTION. It is
not allowed, except:

(a) On cross examination;

(b) On preliminary matters;
(c) When there is a difficulty is getting direct and intelligible
answers from a witness who is ignorant, or a child of tender
years, or is of feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who 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.
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 allowed.
E. Impeachment of Witnesses

Impeachment of a Witness- means discrediting a witness or

browbeating with the witness.

Ways of Impeaching an Adverse Party Witness:

1. By contradictory evidence;
2. By evidence of prior inconsistent statement;
3. By evidence of his bad character.
Sec. 11. Impeachment of adverse party's witness. — A
witness may be impeached by the party against whom he
was called, by:

1. contradictory evidence,

2. by evidence that his general reputation for truth,

honestly, or integrity is bad, or

3. 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.
Sec. 12. Party may not impeach his own witness. — Except with
respect to witnesses referred to in paragraphs d (unwilling or hostile
witness) and e (witness who is adverse party) of Section 10, the party
producing a witness is not allowed to impeach his credibility.

A witness may be considered as unwilling or hostile only if so declared

by the court upon adequate showing of his adverse interest,
unjustified reluctance to testify, or his having misled the party into
calling him to the witness stand.

The unwilling or hostile witness so declared, or the witness who is an

adverse party, may be impeached by the party presenting him in all
respects as if he had been called by the adverse party, except by
evidence of his bad character. He may also be impeached and cross-
examined by the adverse party, but such cross-examination must only
be on the subject matter of his examination-in-chief.
Sec. 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. [LAYING THE PREDICATE]
LAYING THE PREDICATE -is a rule of evidence which ordains
that before a witness can be impeached by evidence that he
has made at other times statement inconsistent with his
present testimony, the statement must be related to him,
with the circumstances of the times and the places and the
persons present, and he must be asked whether he made
such statements and if so, allowed to explain them. If the
statement is in writing, they must be shown to him before
any question is put to him concerning them.
Steps in Impeaching Witness by Prior Inconsistent
Statements

1. SHOW to the witness the statement in writing.

2. RELATE to the witness the statement with the
circumstances of time, persons and places.
3. ASK the witness if he made those statements.
4. EXPLANATION is demanded of the witness regarding the
alleged inconsistencies.
Sec. 14. Evidence of good character of witness. — Evidence
of the good character of a witness is not admissible until
such character has been impeached.
F. Necessity of Exclusion and Separation of Witnesses

Sec. 15. Exclusion and separation of witnesses. — On any

trial or hearing, the judge may exclude from the court any
witness not at the time under examination, so that he may
not hear the testimony of other witnesses. The judge may
also cause witnesses to be kept separate and to be
prevented from conversing with one another until all shall
have been examined.
Sec. 16. When witness may refer to memorandum. —

1. A witness may be allowed to refresh his memory

respecting a fact, by anything written or recorded by himself
or under his direction at the time when the fact occurred, or
immediately thereafter, or at any other time when the fact
was fresh in his memory and knew that the same was
correctly written or recorded [Revival of Present Memory,
e.g. diary- testimonial]; but in such case the writing or
record must be produced and may be inspected by the
adverse party, who may, if he chooses, cross examine the
witness upon it, and may read it in evidence.
2. A witness may testify from such writing or record, though
he retain no recollection of the particular facts, if he is able
to swear that the writing or record correctly stated the
transaction when made; but such evidence must be
received with caution [Revival of Past Recollection, e.g.
autopsy report- documentary]
REVIVAL OF PRESENT MEMORY or PRESENT RECOLLECTION
REVIVED- a rule which allows a witness to refer to a
memorandum for the purpose of refreshing his memory
respecting a fact provided:

1. That the memorandum has been written by him or under

his direction;

2. That it was written: When the fact occurred, or

immediately thereafter, or at any time when the fact was
fresh in his memory and he knew that the same was
correctly stated.
REVIVAL OF PRESENT RECOLLECTION or PAST RECOLLECTION
RECORDED- a rule which allows a witness to testify from a
memorandum or writing, though he retains no recollection
of particular facts , if he is able to swear that the writing
correctly stated the transaction when made.
Sec. 17. When part of transaction, writing or record given in
evidence, the remainder, admissible. — When part of an
act, declaration, conversation, writing or record is given in
evidence by one party, the whole of the same subject may
be inquired into by the other, and when a detached act,
declaration, conversation, writing or record is given in
evidence, any other act, declaration, conversation, writing
or record necessary to its understanding may also be given
in evidence.

[OPEN YOUR DOOR POLICY OR THE COMPLETENESS RULE].

Open Door Policy or Completeness Rule of the Rules on
Evidence.

It states when part of an act, declaration, conversation,

writing or record is given in evidence by one party, the
whole of the same subject may be inquired into by the
other.
Sec. 18. Right to respect writing shown to witness. —
Whenever a writing is shown to a witness, it may be
inspected by the adverse party.
H. Authentication and Proof Of Documents

Sec. 19. Classes of Documents. — For the purpose of their

presentation evidence, documents are either public or private.

Public documents are: [no need for authentication]

(a) The written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public officers,
whether of the Philippines, or of a foreign country;

(b) Documents acknowledge before a notary public except last wills

and testaments; and

(c) Public records, kept in the Philippines, of private documents

required by law to be entered therein.

All other writings are private.

Four Kinds Of Documents

1. PRIVATE DOCUMENTS- are every deed or instrument

executed by a private person without the intervention of a
public notary or other persons legally authorized; by which
some disposition or agreement is proved, evidenced or set
forth.

2. COMMERCIAL DOCUMENT-any document defined and

regulated by the Code of Commerce

3. OFFICIAL DOCUMENT- a document which is issued by a

public official in the exercise of the functions of his office.

4. PUBLIC DOCUMENT- (See above definition)

Sec. 20. Proof of private document. — Before any private
document offered as authentic is received in evidence, its
due execution and authenticity must be proved either:

(a) By anyone who saw the document executed or written;

(b) By evidence of the genuineness of the signature or

handwriting of the maker.

Any other private document need only be identified as that

which it is claimed to be.
Sec. 21. When evidence of authenticity of private document
not necessary. — Where a private document is more than
thirty years old, is produced from the custody in which it
would naturally be found if genuine, and is unblemished by
any alterations or circumstances of suspicion, no other
evidence of its authenticity need be given.[ANCIENT
DOCUMENT RULE]

An Ancient Document- is a document which is more than 30

years old found in the proper custody and unblemished by
any alteration or circumstance of suspicion.
Sec. 22.How genuineness of handwriting proved. —
The handwriting of a person may be proved: 1. by any
witness who believes it to be the handwriting of such
person because he has seen the person write, or 2. by a
witness who has seen writing purporting to be his upon
which the witness has acted or been charged, and has thus
acquired knowledge of the handwriting of such person.
Evidence respecting the handwriting may also be given 3. by
a comparison, made by the witness or the court, with
writings admitted or treated as genuine by the party against
whom the evidence is offered, or proved to be genuine to
the satisfaction of the judge.
Proof of Genuiness of a Handwriting

1. By anyone who saw the document executed or written;

or

2. By evidence of the genuiness of the signature or

handwriting of the maker
Sec. 23. Public documents as evidence. — 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. 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.

Prima Facie Evidence- an evidence which standing alone

unexplained or uncontradicted, is sufficient to maintain the
proposition affirmed.
Sec. 24. Proof of official record. — The record of public
documents referred to in paragraph (a) of Section 19, when
admissible for any purpose, may be evidenced by 1. an
official publication thereof or 2. by a copy attested by the
officer having the legal custody of the record, or 3. by his
deputy, and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the
custody. If the office in which the record is kept is in foreign
country, the certificate may be made by a secretary of the
embassy or legation, consul general, consul, vice consul, or
consular agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the
record is kept, and authenticated by the seal of his office.
Sec. 25. What attestation of copy must state. — Whenever a
copy of a document or record is attested for the purpose of
evidence, the attestation must state, in substance, that the
copy is a correct copy of the original, or a specific part
thereof, as the case may be. The attestation must be under
the official seal of the attesting officer, if there be any, or if
he be the clerk of a court having a seal, under the seal of
such court.
Sec. 26. Irremovability of public record. — Any public record,
an official copy of which is admissible in evidence, must not
be removed from the office in which it is kept, except upon
order of a court where the inspection of the record is
essential to the just determination of a pending case.
Sec. 27. Public record of a private document. — An
authorized public record of a private document may be
proved 1. by the original record, or 2. by a copy thereof,
attested by the legal custodian of the record, with an
appropriate certificate that such officer has the custody.
Sec. 28. Proof of lack of record. — A written statement
signed by an officer having the custody of an official record
or by his deputy that after diligent search no record or entry
of a specified tenor is found to exist in the records of his
office, accompanied by a certificate as above provided, is
admissible as evidence that the records of his office contain
no such record or entry.
Sec. 29. How judicial record impeached. — Any judicial
record may be impeached by evidence of: (a) want of
jurisdiction in the court or judicial officer, (b) collusion
between the parties, or (c) fraud in the party offering the
record, in respect to the proceedings.
Sec. 30. Proof of notarial documents. — Every instrument
duly acknowledged or proved and certified as provided by
law, may be presented in evidence without further proof,
the certificate of acknowledgment being prima facie
evidence of the execution of the instrument or document
involved.

Effect of Notarization: It converts private documents into

public documents. Hence it becomes admissible in evidence
without further proof of its authenticity.
Sec. 31. Alteration in document, how to explain. — The
party producing a document as genuine which has been
altered and appears to have been altered after its execution,
in a part material to the question in dispute, must account
for the alteration. He may show that the alteration was
made by another, without his concurrence, or was made
with the consent of the parties affected by it, or was
otherwise properly or innocent made, or that the alteration
did not change the meaning or language of the instrument.
If he fails to do that, the document shall not be admissible in
evidence.
Sec. 32. Seal. — There shall be no difference between sealed
and unsealed private documents insofar as their
admissibility as evidence is concerned.
Sec. 33. Documentary evidence in an unofficial language. —
Documents written in an unofficial language shall not be
admitted as evidence, unless accompanied with a
translation into English or Filipino. To avoid interruption of
proceedings, parties or their attorneys are directed to have
such translation prepared before trial.
I. Offer and Objection

Offer of Evidence

OFFER OF EVIDENCE- means the presentation or

introduction of evidence in court. The court shall consider
no evidence which has not been formally offered.
Sec. 34. Offer of evidence. — The court shall consider no
evidence which has not been formally offered. The purpose
for which the evidence is offered must be specified.
Sec. 35. When to make offer. — As regards the testimony of
a witness, the offer must be made at the time the witness is
called to testify.

Documentary and object evidence shall be offered after the

presentation of a party'stestimonial evidence. Such offer
shall be done orally unless allowed by the court to be done
in writing.
Rules in Formal Offer of Documentary and Real Evidence

1. Identification
2. Description
3. Purpose
Objection

Sec. 36. Objection. — Objection to evidence offered orally

must be made immediately after the offer is made.

Objection to a question propounded in the course of the

oral examination of a witness shall be made as soon as the
grounds therefore shall become reasonably apparent.

An offer of evidence in writing shall be objected to within

three (3) days after notice unless a different period is
allowed by the court.
In any case, the grounds for the objections must be
specified.
Sec. 37. When repetition of objection unnecessary. — When
it becomes reasonably apparent in the course of the
examination of a witness that the question being
propounded are of the same class as those to which
objection has been made, whether such objection was
sustained or overruled, it shall not be necessary to repeat
the objection, it being sufficient for the adverse party to
record his continuing objection to such class of questions.
Sec. 38. Ruling. — The ruling of the court must be given
immediately after the objection is made, unless the court
desires to take a reasonable time to inform itself on the
question presented; but the ruling shall always be made
during the trial and at such time as will give the party
against whom it is made an opportunity to meet the
situation presented by the ruling.

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.
Sec. 39. Striking out answer. — Should a witness answer the
question before the adverse party had the opportunity to
voice fully its objection to the same, and such objection is
found to be meritorious, the court shall sustain the
objection and order the answer given to be stricken off the
record.

On proper motion, the court may also order the striking out
of answers which are incompetent, irrelevant, or otherwise
improper.
Sec. 40. Tender of excluded evidence. — If documents or
things offered in evidence are excluded by the court, the
offeror may have the same attached to or made part of the
record. If the evidence excluded is oral, the offeror may
state for the record the name and other personal
circumstances of the witness and the substance of the
proposed testimony.
RULES ON TENDER OF EXCLUDED EVIDENCE
[Offer of Proof/Proffer of Evidence]

- A procedure undertaken by a party normally through a

lawyer if the evidence is excluded by the court wherein the
offeror may have the same attached to or made part of the
record. If the evidence excluded is oral, the offeror may
state for the record the name and other personal
circumstances of the witness and the substance of the
proposed testimony.
VII. Weight and Sufficiency of Evidence (RULE 133)

SECTION 1. Preponderance of evidence, how determined. —

In civil cases, the party having burden of proof must
establish his case by a preponderance of evidence. In
determining where the preponderance or superior weight of
evidence on the issues involved lies, the court may consider:

1. All the facts and circumstances of the case,

2. The witnesses' manner of testifying,
3. Their intelligence,
4. Their means and opportunity of knowing the facts to
which there are testifying,
5. The nature of the facts to which they testify,
6. The probability or improbability of their testimony,
7. Their interest or want of interest, and
8. Also their personal credibility so far as the same may
legitimately appear upon the trial.
9. The court may also consider the number of witnesses,
though the preponderance is not necessarily with the
greater number.
Sec. 2. Proof beyond reasonable doubt. — In a criminal case,
the accused is entitled to an acquittal, unless his guilt is
shown beyond reasonable doubt. Proof beyond reasonable
doubt does not mean such a degree of proof, excluding
possibility of error, produces absolute certainly. Moral
certainly only is required, or that degree of proof which
produces conviction in an unprejudiced mind.
Sec. 3. Extrajudicial confession, not sufficient ground for
conviction. — An extrajudicial confession made by an
accused, shall not be sufficient ground for conviction, unless
corroborated by evidence of corpus delicti.

Requisites for the Validity of Extrajudicial Confession

1. It must be voluntary;
2. It must be made with the assistance of a lawyer who is
competent and independent;
3. It must be in writing and must be express.
Sec. 4. Circumstantial evidence, when sufficient. —
Circumstantial evidence is sufficient for conviction if:

(a) There is more than one circumstances;

(b) The facts from which the inferences are derived are
proven; and
(c) The combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt.
Sec. 5. Substantial evidence. — In cases filed before
administrative or quasi-judicial bodies, a fact may be
deemed established if it is supported by substantial
evidence, or that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a
conclusion.
Sec. 6. Power of the court to stop further evidence. — 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.
Sec. 7. Evidence on motion. — When a motion is based on
facts not appearing of record the court may hear the matter
on affidavits or DEPOSITION presented by the respective
parties, but the court may direct that the matter be heard
wholly or partly on oral testimony or depositions.

Deposition- is the written testimony of a witness given in

the course of judicial proceedings in advance of a trial or
hearing upon oral examination.

Affidavit- is a statement of fact under oath.

Proof Beyond Reasonable Doubt- in criminal case, the
accused is entitled to an acquittal, unless his guilt is shown
beyond reasonable doubt. Proof beyond reasonable doubt
does not mean such a degree of proof as excluding
possibility of error, produces absolute certainty. Moral
certainty is required or that degree of proof which produces
conviction in an unprejudiced mind
Extrajucial Confession + Proof of Corpus Delicti = Conviction

An extrajudicial confession made by the accused, shall

not be sufficient ground for conviction unless corroborated
by evidence of corpus delicti.

CORPUS DELICTI- corpus delicti means that a crime has been

committed. It is not correct to say that corpus delicti refers
to the body of a murdered person.
SPECIFIC CRIMECORPUS DELICTI

1. Murder, homicide and kindred kind Body of the dead

victim or the fact of death
2. Arson Property burned or the fact of burning
3. Theft Fact of lost (stolen property plus felonious taking)
4. Illegal possession of firearm Fact of possessing without
license (existence of unlicensed F/A with animus possidendi)
Specific Crime Corpus Delicti
Credibility of witness- refers to the integrity, disposition and
intention to tell the truth in the testimony he has given.

Falsus In Uno Falsus in Omnibus- It literally means “false in

one thing-false in everything”. It refers to that principle
where on one point, the witness has lied, his testimony
upon another points may be disregarded. This is no longer
followed in the Philippines. The modern trend of
jurisprudence is to the effect that the testimony of a witness
maybe believed in part and disbelieved in part, depending
upon the corroborative evidence and the probabilities and
improbabilities of the case.
Alibi- known as the weakest defense in a criminal case. It is
an averment that the accused was at another place for such
period of time that it was impossible for him to have been at
the place where the act was committed at the time of its
commission.

Alibi as a Ground for the Acquittal of the Accused

1. Where no positive or proper identification has been

made by the witnesses of the offender;
2. Where the prosecution’s evidence is weak and
unsatisfactory.
Sufficiency of Circumstantial Evidence to Support a
Conviction

1. If there is more than one circumstance;

2. If the facts from which the inferences are derived are
proven; and
3. If the combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt.
EQUIPOISE RULE- where the inculpatory circumstances are
capable of two inferences, one which is consistent with the
presumption of innocence and the other compatible with
the finding of guilt, the court must acquit the accused
because the evidence does not fulfill the test of moral
certainty and therefore insufficient to sustain a judgment of
conviction. It may also be defined as where the evidence of
the parties in a criminal case is evenly balanced, the
constitutional presumption of innocence should tilt the
scales in favor of the accused and he should be acquitted.
EQUIPONDERANCE OF EVIDENCE RULE- when the scale shall
stand upon equipoise and there is nothing in the evidence
which shall incline it to one side or the other, the court will
find for the defendant.
TOTALITY OF CIRCUMSTANCES DOCTRINE- It is a test to
determine the reliability and even admissibility of out of
court identification of accused, such as:

1. The witness’ opportunity to view the criminal at the time

of the commission of the crime.
2. the level of certainty demonstrated by the witness at the
time of identification
3. The suggestiveness of the identification process.
VIII. Perpetuation of Testimony (Rule 134)

Note:
The Rules on perpetuation of testimony was transposed
from Rule 134 to Rule 24 of the Rules of Court. This topic
therefore can be found in Rule 24 as part of Civil Procedure.
The ways of perpetuating testimony in criminal cases can be
found in Sections 12, 13 and 15 of Rule 119, part of Criminal
Procedure.
A. Concept of Perpetuation of Testimony

A process by which, the testimony of a person, with leave

of court, is taken for the purpose of preserving it in
contemplation of the witness’ unavailability during trial.
B. Depositions

Deposition is taking of the testimony of any person, upon

oral or written interrogatories whether a party or not, at the
instance of any party. This testimony is taken out of court.

 A deposition may be taken with leave of court after

jurisdiction has been obtained over any defendant or over
property that is the subject of the actions; or without such
leave, after an answer has been served.
Functions of Deposition
As a mode of discovery, the primary function of
deposition is to supplement the pleadings for the purpose of
disclosing the real points of dispute between the parties and
affording an adequate factual basis during the preparation
for trial.
Methods of Taking Deposition
1. By an oral examination
2. By a written interrogatory

Uses of Deposition
1. In pending action
2. Future action
3. Pending appeal
****END***