Presentation of Evidence

LESSON 4
PRESENTATION OF
EVIDENCE
TOPICS:
1. OFFER
2. MODES OF EXCLUDING INADMISSIBLE EVIDENCE
3. RULING
4. PRESENTATION OF WITNESS
5. JUDICIAL AFFIDAVIT RULE
Formal Offer Of Evidence; Need For Statement Of
The Purpose Of Evidence
◦ A party makes a formal offer of his evidence by stating its
substance or nature and the purpose or purposes for which
the evidence is offered.[13] Without a formal offer of
evidence, and hence without a disclosure of its purpose, it
cannot be determined whether it is admissible or not.
For example, the testimony of a witness, in a libel case, that he heard the defendant
call the plaintiff a liar and a crook is certainly inadmissible for being hearsay, if
offered to prove the truth of the perceived statement. However, the same testimony is
perfectly admissible if offered simply to prove that the statement was uttered.
This is so because it is the intended purpose of a piece of evidence which
determines what rule of evidence will apply for its admissibility.
GENERAL RULE: THE COURT SHALL NOT CONSIDER ANY EVIDENCE NOT FORMALLY
OFFERED
EXCEPTIONS:
1. Under the Rule on Summary Procedure, where no full blown trial is held in the
interest of speedy administration of justice;
2. In summary judgments under Rule 35 where the judge bases his decisions on the
pleadings, depositions, admissions, affidavits and documents filed with the court;
3. Documents whose contents are taken judicial notice of by the court;
4. Documents whose contents are judicially admitted;
5. Object evidence which could not be formally offered because they have disappeared
or have become lost after they have been marked, identified and testified on and
described in the record and became the subject of cross-examination of the witnesses
who testified on them during the trial, e.g., marijuana involved in a prohibited drugs
prosecution.[16]
MODES OF EXCLUDING INADMISSIBLE
EVIDENCE
There are two ways of excluding inadmissible evidence. One is by objection and
the other is by a motion to strike out.
A. Evidence is objected to at the time it is offered and not before:
1. Oral evidence is objected to after its express formal offer before the witness
testifies.17 When thereafter the witness is allowed to testify, objection to a
question propounded in the course of the oral examination of a witness shall be
made as soon as the grounds therefor shall become reasonably apparent. [18]
2. Documentary and object evidence are objected to upon their formal offer
after the presentation of a party’s testimonial evidence.
RULE:
Failure to seasonably object to offered evidence
amounts to a waiver of the grounds for objection. The
rules of exclusion are not self-operating. They must be
properly invoked.
The grounds for objection must be specified.

[19]
Grounds not raised are deemed waived. However,
repetition of objection is unnecessary when a
continuing objection is properly made.[20] Objection to
the purpose for which evidence is offered is not proper.
B. A motion to strike out answer or testimony is proper in the following instances:
1. The witness answers prematurely.[21]
2. The answer is incompetent, irrelevant or improper.[22]
The incompetency referred to here is limited to the incompetency of the witness to

answer the question posed; it does not extend to the general concept of
incompetency of evidence for being excluded by law or the Rules.
3. The answer given is unresponsive.
4. The ground for objection was not apparent when the question was asked.
5. Uncompleted testimony – e.g., a witness who gave direct testimony becomes

unavailable for cross-examination through no fault of the cross-examiner.
6. Unfulfilled condition in conditionally admitted testimony.

a.Objections to evidence may be formal or substantive.
1. Formal objections are based on the defective form of the question asked.
Examples:
(1) LEADING QUESTIONS WHICH SUGGEST TO THE WITNESS THE ANSWER DESIRED. [23]
If counsel finds difficulty in avoiding leading questions, the judge may suggest, to expedite
questions, that counsel begin his questions with the proper interrogative pronouns, such as "who",
"what", "where", "why", "how", etc.
LEADING QUESTIONS ARE ALLOWED OF A WITNESS WHO CANNOT BE REASONABLY EXPECTED TO

BE LED BY THE EXAMINING COUNSEL, AS
(a) on cross-examinations;[24]
(b) when the witness is unwilling or hostile, after it has been demonstrated that the witness had
shown unjustified reluctance to testify or has an adverse interest or had misled the party into
calling him to the witness stand, and in either case after having been declared by the court to
be indeed unwilling or hostile;[25] or
(c) when the witness is an adverse party or an officer, director, or managing agent of a public or
private corporation or of a partnership or association with is an adverse party. [26]
a.Leading questions may also be asked
when there is difficulty in getting direct
and intelligible answers from a witness
who is IGNORANT, OR A CHILD OF TENDER
YEARS, OR IS FEEBLE MINDED, OR A
DEAF-MUTE.[27]
b.Leading questions may moreover be

asked on PRELIMINARY MATTERS, i.e., on
facts not in controversy, and offered only
as basis for more important testimony to
follow. For example, "You are Mrs Maria
Morales, wife of the plaintiff in this case?"
c. Likewise, asking a question which USES

A PREMISE ADMITTED FACTS OR THE
WITNESS' PREVIOUS ANSWER is not for
(2) MISLEADING QUESTIONS, which assume as true a fact not testified to by the
witness ("question has no basis"), or contrary to that which he has previously stated;
[28]
(3) DOUBLE OR MULTIPLE QUESTIONS, which are two or more queries in one. For
example, Q: "Did you see the defendant enter the plaintiff’s house, and was the
plaintiff there?"
(4) VAGUE; AMBIGUOUS; INDEFINITE OR UNCERTAIN QUESTIONS - not allowed

because the witness cannot understand from the form of the question just what facts
are sought to be elicited.
(5) REPETITIOUS QUESTIONS; OR THOSE ALREADY ANSWERED. However, on cross-

examination, the cross-examiner may ask a question already answered to test the
credibility of the witness.
(6) ARGUMENTATIVE QUESTIONS, which challenge a witness’ testimony by engaging

him in an argument, e.g., Q: "Isn’t it a fact Mr Witness that nobody could possibly see
all the circumstances you mentioned in a span of merely two seconds, and that either
your observations are inaccurate or you are lying?"
2. SUBSTANTIVE OBJECTIONS ARE THOSE BASED ON THE INADMISSIBILITY OF
THE OFFERED EVIDENCE
(1) irrelevant, immaterial
(2) best evidence rule
(3) parol evidence rule
(4) disqualification of witness
(5) privileged communication
(6) res inter alios acta
(7) hearsay
(8) opinion
(9) evidence illegally obtained
(10)private document not authenticated

Presentation of Witness
What is the Judicial Affidavit Rule?
The Judicial Affidavit Rule (A.M. No. 12-8-8-SC), promulgated on

September 4, 2012 and made effective on January 1, 2013, is a procedural
innovation which has the ultimate aim of decongesting court dockets by
replacing the direct testimony of parties and witnesses in court with
sworn affidavits submitted to the court and furnished to the opposing party
not later than 5 days before the pre-trial, preliminary conference, or the
scheduled hearing with respect to motions and incidents.
The JA is not a pleading nor is it a motion.

What’s wrong with the direct testimony?
Justice Abad says that the direct testimony is
the bottleneck (chokepoint) of the system.
Court can only hear one witness at a time
(piecemeal trial). A witness’s presentation of his
testimony takes a while. Witnesses often state
their testimonies in the vernacular which
means the same has to be translated to
English as required by existing rules (double
testimony).
Add to this are the objections, especially

unnecessary ones, being raised by the adverse
party during the direct testimony which can be
dispensed with by the implementation of the
JAR.
Functions of the Judicial Affidavit
a. Take the place of direct testimonies
b. Identify and authenticate documentary or
object evidence in the case
Scope of the rule
For criminal cases:
1. Those which the maximum penalty

imposable does not exceed 6 years;
2. To their civil aspect, regardless of penalty

imposed
3. In any case where the accused agrees to

the use of the rule.
Service and filing
Period to file:
Not later than five (5) days before pre-trial or preliminary conference or the scheduled
hearing with respect to motions and incidents.
Formalities:
Written in the language known to the witness. If not in English or Filipino, a translation must
be attached.
Remedies if inadmissible evidence is introduced through the JA by one party
The other party may:

Move to disqualify the witness;
Move to strike out the said witness’s judicial affidavit;
Move to strike out the particular portion/ answer of the JA.
Remedies if inadmissible evidence is introduced through the JA by one party
In number 3, if granted by the court, the excluded portion shall be enclosed in brackets with the initials
of an authorized court personnel.
Example:
Question 21: Do you know who stole the wallet of Petra Saavedra?
Answer 21: Yes.
Question 22: Who?
Answer 22: Pedro Penduko sir.
[Question 23: How did you know?
Answer 23: Because Anna Montana told me sir.] HYC
The answer is based on hearsay

Offer of Testimony
Rule: Counsel shall state the purpose of the JA at the start of the presentation of the witness. It does
not say that the such purpose must be stated in the JA itself.
In actual practice and for convenience, the purpose of the JA as well as the purpose/s of the evidence
introduced therein are stated in the JA itself.
Offer of Evidence (Documentary and Object)
After presenting the last witness (on either side), counsel must ORALLY offer evidence. In practice
though, judges, on discretion, may still allow a written offer of evidence.
After terminating the testimony of his last witness, counsel makes the oral offer of evidence through
the following:
1. Make an oral offer of evidence;

2. Piece by piece, in their chronological order stating the purpose/s for which he offers the particular
exhibit;
3. Since the documentary or object exhibits form part of the judicial affidavits that describe and
authenticate them, it is sufficient that such exhibits are simply cited by their markings during the offer
– dispensing with the description of each exhibit.
Objections to Evidence (Documentary and Object)
After each piece of exhibit is offered, the adverse party shall state the legal ground for his objection to
it, if any. The piece of evidence in point may be referred to by its marking.
The court shall then immediately make its ruling respecting that exhibit. In ruling, the court may also
refer to that particular evidence by its marking.

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LESSON 4

3. Documents whose contents are taken judicial notice of by the court;

4. Documents whose contents are judicially admitted;

A. Evidence is objected to at the time it is offered and not before:

The grounds for objection must be specified.

1. The witness answers prematurely.[21]

2. The answer is incompetent, irrelevant or improper.[22]

The incompetency referred to here is limited to the incompetency of the witness to

3. The answer given is unresponsive.

5. Uncompleted testimony – e.g., a witness who gave direct testimony becomes

6. Unfulfilled condition in conditionally admitted testimony.

LEADING QUESTIONS ARE ALLOWED OF A WITNESS WHO CANNOT BE REASONABLY EXPECTED TO

b.Leading questions may moreover be

c. Likewise, asking a question which USES

(4) VAGUE; AMBIGUOUS; INDEFINITE OR UNCERTAIN QUESTIONS - not allowed

(5) REPETITIOUS QUESTIONS; OR THOSE ALREADY ANSWERED. However, on cross-

(6) ARGUMENTATIVE QUESTIONS, which challenge a witness’ testimony by engaging

(1) irrelevant, immaterial

(2) best evidence rule

(3) parol evidence rule

(4) disqualification of witness

(5) privileged communication

(6) res inter alios acta

(9) evidence illegally obtained

(10)private document not authenticated

The Judicial Affidavit Rule (A.M. No. 12-8-8-SC), promulgated on

The JA is not a pleading nor is it a motion.

Add to this are the objections, especially

Scope of the rule

For criminal cases:

1. Those which the maximum penalty

2. To their civil aspect, regardless of penalty

3. In any case where the accused agrees to

The other party may:

Answer 21: Yes.

Question 22: Who?

Answer 22: Pedro Penduko sir.

[Question 23: How did you know?

Answer 23: Because Anna Montana told me sir.] HYC

The answer is based on hearsay

1. Make an oral offer of evidence;

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