Reviewer in Evidence: Quickie Notes Parts 1 and 2

1

RULES ON EVIDENCE (1)

2

GENERAL PROVISIONS Evidence defined ........................................................................................................... 4

Scope .............................................................................................................................. 4

Admissibility of evidence ............................................................................................. 4

Relevancy; collateral matters ....................................................................................... 4

Sample problem............................................................................................................. 4

Rule on alibi ................................................................................................................... 5

Factum probandum v. Factum probans ...................................................................... 5

Judicial notice; when mandatory ................................................................................. 6

Judicial notice; when discretionary ............................................................................. 9

Judicial notice; when hearing necessary .................................................................... 9

Judicial admissions .................................................................................................... 11

OBJECT EVIDENCE

Object evidence ........................................................................................................... 13

Chain of custody ......................................................................................................... 13

Drug cases ................................................................................................................... 13

Documentary evidence ............................................................................................... 15

Electronic document ................................................................................................... 15

Best Evidence Rule ..................................................................................................... 15

Original Document ...................................................................................................... 16

Original Document under the Best Evidence Rule ................................................... 17

How to present secondary evidence ......................................................................... 19

Party who calls for document not bound to present it ............................................. 20

Parol Evidence Rule .................................................................................................... 20

Exceptions to the Parol Evidence Rule ..................................................................... 21

Interpretation of documents ....................................................................................... 23

3

TESTIMONIAL EVIDENCE

Qualification of witnesses .......................................................................................... 25

Disqualification by reason of marriage ..................................................................... 27

Marital privilege ........................................................................................................... 30

Dead man’s statue; Survivorship disqualification .................................................... 32

Lawyer-client privilege ................................................................................................ 35

Name of client .............................................................................................................. 35

Physician-patient privilege ......................................................................................... 37

Priest-penitent privilege .............................................................................................. 39

Public officer ................................................................................................................ 39

Parental privilege and filial privilege ......................................................................... 39

ADMISSIONS

Admissions .................................................................................................................. 41

Offer of compromise ................................................................................................... 41

Plea of guilt .................................................................................................................. 42

PREVIOUS CONDUCT AS EVIDENCE

Res inter alios acta (type 1) ........................................................................................ 44

Admission by silence .................................................................................................. 45

Confession ................................................................................................................... 46

RULE 128: GENERAL PROVISIONS

4

Evidence defined

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.(1)

Scope

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.(2a) Admissibility of evidence

SEC. 3. Admissibility of evidence.—Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules.(3a RULES ON ELECTRONIC EVIDENCE: An electronic document is admissible in evidence if it complied with the rules of admissibility prescribed by the Rules of Court and is authenticated as prescribed by the REE. [2003 BAR Q] Relevancy; collateral matters

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.(4a) Sample problem

During trial, plaintiff offered evidence that appeared irrelevant at that time but he said he was eventually going to relate to the issue in the case by some future evidence. The defendant objected. Should the trial court reject the evidence in question on ground of irrelevance?

A. No, it should reserve its ruling until the relevance is shown. B. Yes, since the plaintiff could anyway subsequently present the

RULE 128: GENERAL PROVISIONS

5

evidence anew. C. Yes, since irrelevant evidence is not admissible. D. No, it should admit it conditionally until its relevance is shown.

ANSWER: D. No, it should admit it conditionally until its relevance is shown. CONDITIONAL ADMISSIBILITY: Where evidence at the time of its offer appears to be immaterial or irrelevant unless it is connected with the other facts to be subsequently proved, such evidence may be received, provided that the other facts will be proved thereafter; otherwise, the evidence already given shall be stricken out.

Rule on alibi

For an ailibi to prevail, the defense must establish positive, clear and satisfactory proof that it was physically impossible for the accused to have been at the scene of the crime at the time of the comision and not merely that the accused was somewhere else.

Factum probandum v. Factum probans

Factum Probandum Factum Probans

fact or proposition to be established

facts evidencing the fact or proposition to be established

RULE 129: WHAT NEED NOT BE PROVED

6

Judicial notice; when mandatory

SECTION 1. Judicial notice, when mandatory1.—A court shall take judicial notice, without the introduction of evidence

F Forms of government and symbols of nationality of states

L Law of nations

O Official acts if the legislative, executive, and judicial departments of government

P Political history of states

L Laws of nature

E Existence and territorial extent of states

G Geographical divisions

M Measure of time

A Admiralty and maritime courts of the world and their seals

P Political constitution and history of the Philippines

1997 Bar Q

Give three instances when a Philippine court can take judicial notice of a foreign law. SUGGESTED ANSWER: 1. when the Philippine courts are evidently familiar with the foreign law (Moran. Vol. 5, p. 34, 1980 edition);

2. when the foreign law refers to the law of nations (Sec. 1 of Rule 129)

1 When the matter is subject to mandatory judicial, no motion or hearing is necessary for the court to take judicial notice.


7

3. when it refers to a published treatise, periodical or pamphlet on the subject of law if the court takes judicial notice of the fact that the writer thereof is recognized in his profession or calling as expert on the subject (Sec. 46. Rule 130).

Sample problems

Which of the following matters is NOT A PROPER SUBJECT of judicial notice?

A. Persons have killed even without motive. B. Municipal ordinances in the municipalities where the MCTC sits. C. Teleconferencing is now a way of conducting business

transactions. D. British law on succession personally known to the presiding

judge.

ANSWER: D. British law on succession personally known to the presiding judge. NOTES: Courts cannot take judicial notice of foreign laws. Like any other fact, they must be alleged and proved. In the absence of evidence of the law of the foreign country, Phil. Laws should be applied under the doctrine of processual presumption. PCIB v. Escolin—foreign law is within the actual knowledge of the court:

1. when the law is generally well-known 2. had been ruled upon in previous cases before it 3. and none of the parties claim otherwise

Which of the following is not subject of mandatory judicial notice?

A. Political history of the Philippines B. The laws of nature C. Political constitution of states D. Admiralty and maritime courts of the world


8

ANSWER: C. Political constitution of states

P Political history of states

P Political constitution and history of the Philippines


9

Judicial notice; when discretionary

SEC. 2. Judicial notice, when discretionary.—A court may take judicial notice of matters which

1. are of public knowledge, or 2. are capable of unquestionable demonstration, or 3. ought to be known to judges because of their judicial

functions2.(1a) Judicial notice; when hearing necessary

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 appeal3, 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)

2 As a rule, "courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been heard or are actually pending before the same judge." Be that as it may, Section 2, Rule 129 provides that courts may take judicial notice of matters ought to be known to judges because of their judicial functions. In this case, the Court notes that a copy of the Decision in CTA Case No. 4897 was attached to the Petition for Review filed before this Court. Significantly, respondents do not claim at all that the said Decision was fraudulent or nonexistent. Indeed, they do not even dispute the contents of the said Decision, claiming merely that the Court cannot take judicial notice thereof. (BPI Savings v. Court of Tax Appeals, G.R. No. 122480, April 12, 2000)

3 The court can take judicial notice of a fact during or after trial; judicial

may also be taken on appeal.


10

2005 Bar Q

Explain briefly whether the RTC may, motu proprio,take judicial notice of:

1. The street name of methamphetamine hydro-chloride is shabu.

SUGGESTED ANSWER: The RTC may motu proprio take judicial notice of the street name of methamphetamine hydrochloride is shabu, considering the chemical composition of shabu. (People v. Macasling, GM, No. 90342, May 27,1993)

2. Ordinances approved by municipalities under its territorial jurisdiction;

SUGGESTED ANSWER: In the absence of statutory authority, the RTC may not take judicial notice of ordinances approved by municipalities under their territorial jurisdiction, except on appeal from the municipal trial courts, which took judicial notice of the ordinance in question. (U.S. v. Blanco, G.R, No. 12435, November9,1917; U.S. v. Hernandez, G.R. No. 9699, August 26,1915)

3. Foreign laws;

SUGGESTED ANSWER: The RTC may not generally take judicial notice of foreign laws (In re Estate of Johnson, G.R. No. 12767, November 16, 1918; Fluemer v. Hix, G.R. No. 32636, March 17, 1930), which must be proved like any other matter of fact (Sy Joe Lieng v. Sy Quia, G.R. No. 4718, March 19, 1910) except in a few instances, the court in the exercise of its sound judicial discretion, may take notice of foreign laws when Philippine courts are evidently familiar with them, such as the Spanish Civil Code, which had taken effect in the Philippines, and other allied legislation. (Pardo v. Republic, G.R. No. L-2248 January 23, 1950; Delgado v. Republic, G.R. No. L-2546, January .28, 1950)


11

4. Rules and Regulations issued by quasi-judicial bodies implementing statutes;

SUGGESTED ANSWER: The RTC may take judicial notice of Rules and Regulations issued by quasi-judicial bodies implementing statutes, because they are capable of unquestionable demonstration (Chattamal v. Collector of Customs, G.R. No. 16347, November 3,1920), unless the law itself considers such rules as an integral part of the statute, in which case judicial notice becomes mandatory.

Judicial admissions

SEC. 4. Judicial admissions.—

1. admission, verbal or written4 2. made by a party5 3. in the course of the proceedings in the same case

It does not require proof. It may be contradicted only by6 showing that it was made through palpable mistake or that no such admission was made.(2a)

4 It is settled that judicial admissions may be made: 1. in the pleadings filed by the parties; 2. in the course of the trial either by verbal or written manifestations or

stipulations; or 3. in other stages of judicial proceedings, as in the pre-trial of the case.

A written statement is nonetheless competent as an admission even if it is contained in a document which is not itself effective for the purpose for which it is made, either by reason of illegality, or incompetency of party thereto, or by reason of not being signed, executed or delivered. Accordingly, contracts have been held as competent evidence of admissions, although they may be unenforceable. [Republic v. Sandiganbayan, 2003] 5 Not just any witness 6 cf. Retraction of pre-trial stipulations in Criminal Proceedings. After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not disposed of, and control the course of the action during the trial, unless modified by the court to prevent manifest injustice. [R 118.4]


12

Sample problems

Which of the following admissions made by a party in the course of judicial proceedings is a judicial admission?

A. Admissions made in a pleading signed by the party and his counsel intended to be filed.

B. An admission made in a pleading in another case between the same parties.

C. Admission made by counsel in open court. D. Admissions made in a complaint superseded by an amended

complaint.

ANSWER: C. Admission made by counsel in open court.

NOTES: Effect of amendment [R10.8]: 1. supersedes original 2. admissions in superseded pleading may be received in

evidence against the pleader 3. claims or defenses alleged therein must be incorporated in

the amended pleading waived

RULE 130: RULES ON ADMISSIBILITY

13

Object evidence

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.(1a) 1994 Bar Q

At the trial of Ace for violation of the Dangerous Drugs Act, the prosecution offers in evidence a photocopy of the marked P100.00 bills used in the “buy-bust” operation. Ace objects to the introduction of the photocopy on the ground that the Best Evidence Rule prohibits the introduction of secondary evidence in lieu of the original. Is the photocopy real (object) evidence or documentary evidence? SUGGESTED ANSWER: The photocopy of the marked bills is real (object) evidence not documentary evidence, because the marked bills are real evidence. Chain of custody

While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain an unbroken chain of custody, it becomes indispensable and essential when the item of real evidence is not distinctive and not readily identifiable, or when its condition at the time of testing or trial is critical or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible of alteration, tampering, contamination and even substitution and exchange. Drug cases

The apprehending team having initial custody and control of the drugs shall immediately after seizure and confiscation:

1. physically inventory; and


14

2. photograph the same In the presence of:

1. the accused or his/her rep or counsel 2. a rep from the media and the DOJ, and 3. any elected public official

Non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer, shall not render void and invalid such seizure of and custody over the same items.


15

Documentary evidence

SEC. 2. Documentary evidence.—Documents as evidence consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents.(n) Rule 1, REE, SECTION 1. Electronic Documents as functional equivalent of paper-based documents. – Whenever a rule of evidence refers to the term writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules. [2003 BAR Q] Electronic document

Electronic document” refers to:

� information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented

� by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed

� which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.7

It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document.

Best Evidence Rule

SEC. 3. Original document must be produced; exceptions.—When the subject of inquiry is the contents of a document8, no evidence

7 As rightly pointed out in defendant Wallem’s Reply to the Comment of Plaintiff, the Xerox copies do not constitute the electronic evidence defined in Section 1 of Rule 2 of the Rules on Electronic Evidence. The information in those Xerox or photocopies was not received, recorded, retrieved or produced electronically. [NPC v. Codilla, G.R. No. 170491, 3 April 2007]


16

shall be admissible other than the original document itself, except in the certain cases9: LCNP Original Document

SEC. 4. Original of document. —

1 one, the contents of which are the subject of inquiry.

2 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

3 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.(3a)

1997 Bar Q

When A loaned a sum of money to B, A typed a single copy of the promissory note, which they both signed A made two photo (xeroxed) copies of the promissory note, giving one copy to B and retaining the other copy. A entrusted the typewritten copy to his counsel for safekeeping. The copy with A's counsel was destroyed when the law office was burned. In an action to collect on the promissory note, which is deemed to be the "original" copy for the purpose of the "Best Evidence Rule"? Can the photocopies in the hands of the parties be considered "duplicate original copies"? SUGGESTED ANSWER: a. The copy that was signed and lost is the only "original" copy for

purposes of the Best Evidence Rule. (Sec. 4 [b] of Rule 130).

b. No. They are not duplicate original copies because there are

8 There is no reason to apply the best evidence rule when the issue does not involve the contents the document. Thus, where the issue is the execution or the existence of the document or the circumstances surrounding its execution, the Best Evidence Rule does not apply and testimonial evidence is admissible. 9 LCNP: Lost-Custody-Numerous accounts-Public record


17

photocopies which were not signed (Mahilum v. Court of

Appeals, 17 SCRA 482), they constitute secondary evidence. (Sec. 5 of Rule 130).

Sample Problem

Is a carbon copy of a document regarded as original document under the Best Evidence Rule?

A. Yes. 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.

B. Yes. 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. Yes, if the original document has been lost or destroyed, or cannot be produced in court

D. Yes, if the original document is in the custody or under the control of the adverse party and fails to produce it despite reasonable notice.

ANSWER: B. Yes. 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

Original Document under the Best Evidence Rule

SECTION 1. Original of an Electronic Document. – An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means shown to reflect the data accurately. SEC. 2. Copies as equivalent of the originals. –The following copies or duplicates shall be regarded as the equivalent of the original.

1. document is in two or more copies executed at or about the same time with identical contents


18

2. document is a counterpart produced: � by the same impression as the original; or � by other equivalent techniques which accurately

reproduces the original Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if:

� a genuine question is raised as to the authenticity of the original; or

� in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original.

2001 Bar Q

Pedro filed a complaint against Lucio for the recovery of a sum of money based on a promissory note executed by Lucio. In his complaint, Pedro alleged that although the promissory note says that it is payable within 120 days, the truth is that the note is payable immediately after 90 days but that if Pedro is willing, he may, upon request of Lucio give the latter up to 120 days to pay the note. During the hearing, Pedro testified that the truth is that the agreement between him and Lucio is for the latter to pay immediately after ninety day’s time. Also, since the original note was with Lucio and the latter would not surrender to Pedro the original note which Lucio kept in a place about one day’s trip from where he received the notice to produce the note and in spite of such notice to produce the same within six hours from receipt of such notice, Lucio failed to do so. Pedro presented a copy of the note which was executed at the same time as the original and with identical contents. Over the objection of Lucio, will Pedro be allowed to testify as to the true agreement or contents of the promissory note? Why? (2%) SUGGESTED ANSWER: Yes, the copy in the possession of Pedro is a duplicate original and with identical contents. [Sec. 4 (b) of Rule 130]. Moreover, the failure of Lucio to produce the original of the note is excusable because he was not given reasonable notice, as requirement under the Rules before secondary evidence may be presented. (Sec. 6 of Rule 130, Rules of Court)


19

How to present secondary evidence

original has been Lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;

the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part10 may prove its contents by (in the order stated):

1. a copy; or 2. by a recital of its contents in some authentic

document; or 3. by the testimony of witnesses

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

the adverse party 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.

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

original is a Public record in the custody of a public officer or is recorded in a public office

contents may be proved by a certified copy issued by the public officer in custody thereof.

10 TAKE NOTE OF THE FOLLOWING: 1. The correct order of proof is as follows: existence, execution, loss, and contents. At the sound discretion of the court, this order may be changed if necessary.

2. Finally, when more than one original copy exists, it must appear that all of them have been lost, destroyed, or cannot be produced in court before secondary evidence can be given of any one. A photocopy may not be used without accounting for the other originals. [Citibank v. Efren Teodoro, G.R. No. 150905, 23 September 2003]


20

Party who calls for document not bound to present it

Ajax Power Corporation, a utility company, sued in the RTC to enforce a supposed right of way over a property owned by Simplicio. At the ensuing trial, Ajax presented its retired field auditor who testified that he know for a fact that a certain sum of money was periodically paid to Simplicio for some time as consideration for a right of way pursuant to a written contract. The original contract was not presented. Instead, a purported copy, identified by the retired field auditor as such, was formally offered as part of his testimony. Rejected by the trial court, it was finally made the subject of an offer of proof by Ajax. Can Ajax validly claim that it had sufficiently met its burden of proving the existence of the contract establishing its right of way? Explain, SUGGESTED ANSWER: No. Ajax had not sufficiently met the burden of proving the existence of the written contract because. It had not laid the basis for the admission of a purported copy thereof as secondary evidence. Ajax should have first proven the execution of the original document and its loss or destruction. (Sec. 5 of Rule 130) Party who calls for document not bound to present it

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. (6a)11

Parol Evidence Rule

SEC. 9. Evidence of written agreements.—When the terms of an agreement (including wills) have been reduced to writing, it is considered as containing all the terms agreed upon and there can be,

11 If the party who calls for the production of a document does not offer the same in evidence, no unfavourable inference may be drawn from such failure.


21

between the parties and their successors in interest12, no evidence of such terms other than the contents of the written agreement.

Exceptions to the Parol Evidence Rule

SEC. 9. Evidence of written agreements.—A party may present evidence to Modify, Explain or Add13 to the terms of the written agreement if he puts in issue in his pleading:

F Failure of the written agreement to express the true intent and agreement of the parties thereto;

I Intrinsic ambiguity14, mistake or imperfection in the written agreement;

V Validity of the written agreement

E Existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.

12 A total stranger to the writing is not bound by its terms and is allowed to introduce extrinsic or parol evidence against the efficacy of the writing

13 Although parol evidence is admissible to explain the meaning of a contract,

it cannot serve the purpose of incorporating into the contract additional contemporaneous conditions which are not mentioned at all in the writing unless there has been fraud or mistake. Evidence of a prior or contemporaneous verbal agreement is generally not admissible to vary, contradict or defeat the operation of a valid contract. [Ortanez v. Court of Appeals, G.R. No. 107372, 23 January 1997]

14 LATENT OR INTRINSIC AMBIGUITY—One where the writing upon its face

appears clear, but there is some collateral matter which may be raised by extrinsic evidence making the meaning uncertain.

The exception obtains only where "the written contract is so ambiguous or obscure in terms that the contractual intention of the parties cannot be understood from a mere reading of the instrument. In such a case, extrinsic evidence of the subject matter of the contract, of the relations of the parties to each other, and of the facts and circumstances surrounding them when they entered into the contract may be received to enable the court to make a proper interpretation of the instrument." [Seaoil Petroleum v. Autocorp Group, G.R. No. 164326, 17 October 2008]


22

2001 Bar Q

Pedro filed a complaint against Lucio for the recovery of a sum of money based on a promissory note executed by Lucio. In his complaint, Pedro alleged that although the promissory note says that it is payable within 120 days, the truth is that the note is payable immediately after 90 days but that if Pedro is willing, he may, upon request of Lucio give the latter up to 120 days to pay the note. During the hearing, Pedro testified that the truth is that the agreement between him and Lucio is for the latter to pay immediately after ninety day’s time. Also, since the original note was with Lucio and the latter would not surrender to Pedro the original note which Lucio kept in a place about one day’s trip from where he received the notice to produce the note and in spite of such notice to produce the same within six hours from receipt of such notice, Lucio failed to do so. Pedro presented a copy of the note which was executed at the same time as the original and with identical contents. Over the objection of Lucio, will Pedro be allowed to testify as to the true agreement or contents of the promissory note? Why? (2%) SUGGESTED ANSWER: Yes, because Pedro has alleged in his complaint that the promissory note does not express the true intent and agreement of the parties. This is an exception to the parol evidence rule. [Sec. 9(b) of Rule 130, Rules of Court]


23

Interpretation of documents

SEC. 10. Interpretation of a writing according to its legal meaning.—The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise.(8)

SEC. 11. Instrument construed so as to give effect to all provisions.—In the construction of an instrument where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.(9)

SEC. 12. Interpretation according to intention; general and particular provisions.—In the construction of an instrument, the intention of the parties is to be pursued; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it.(10)

SEC.13. Interpretation according to circumstances.—For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those whose language he is to interpret.(11)

SEC. 14. Peculiar signification of terms.—The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is admissible to show that they have a local, technical, or otherwise peculiar signification, and were so used and understood, in the particular instance, in which case the agreement must be construed accordingly.(12)

SEC. 15. Written words control printed.—When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter.(13)

SEC. 16. Experts and interpreters to be used in explaining certain writings.—When the characters in which an instrument is written are difficult to be deciphered, or the language is not understood by the


24

court, the evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to declare the characters or the meaning of the language.(14)

SEC. 17. Of two constructions, which preferred.—When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision is made.(15)

SEC. 18. Construction in favor of natural right.—When an instrument is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted.(16) SEC. 19. Interpretation according to usage.—An instrument may be construed according to usage, in order to determine its true character.(17)


25

Qualification of witnesses

All persons who can perceive, and perceiving, can make known their perception to others, may be witnesses.15 Religious or political belief, interest in the outcome of the case16, or conviction of a crime unless otherwise provided by law, shall not be a ground for disqualification. EXCEPTIONS:

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. [R130.21]17

2. Those who have been convicted of falsification of document, perjury or false testimony are disqualified from being witnesses to a will

15 It is thus clear that any child, regardless of age, can be a competent witness if he can perceive, and perceiving, can make known his perception to others and of relating truthfully facts respecting which he is examined. The requirements then of a child's competency as a witness are the: (a) capacity of observation, (b) capacity of recollection, and (c) capacity of communication. In ascertaining whether a child is of sufficient intelligence according to the foregoing requirements, it is settled that the trial court is called upon to make such determination. The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record, the decision of the trial judge will not be disturbed on review unless from that which is preserved it is clear that it was erroneous. [People v. Mendoza, G.R. No. 113791, 22 Feberiary 1996]

16 Interest in the outcome of the case, which also includes close relationship, is not a ground to disqualify a witness.

17 Under the rules, “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” is included as an exception. To avoid confusion, no need to include this in the enumeration. Note that under the Rule on Examination of Child Witnesses: “Every child is presumed qualified to be a witness.”


26

Sample problem

Considering the qualifications required of a would-be witness, who among the following is INCOMPETENT to testify?

A. A person under the influence of drugs when the event he is asked to testify on took place.

B. A person convicted of perjury who will testify as an attesting witness to a will.

C. A deaf and dumb. D. A mental retardate.

ANSWER: B. A person convicted of perjury who will testify as an attesting witness to a will.

NOTES: Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. [R130.20] 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. [R130.21] Those who have been convicted of falsification of document, perjury or false testimony are disqualified from being witnesses to a will


27

Disqualification by reason of marriage

SEC. 22. Disqualification by reason of marriage.—During their marriage18, neither the husband nor the wife may testify for or against19 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.(20a) 1989 Bar Q

Ody sued spouses Cesar and Baby for a sum of money and damages. At the trial, Ody called Baby as his first witness. Baby objected, joined by Cesar, on the ground that she may not be compelled to testify against her husband. Ody insisted and contended that after all, she would just be questioned about a conference they had with the barangay captain, a matter which is not confidential in nature. The trial court ruled in favor of Ody. Was the ruling proper? Will your answer be the same if the matters to be testified on were known to Baby or acquired by her prior to her marriage to Cesar? Explain. SUGGESTED ANSWER: No. Under the Rules on Evidence, a wife cannot be examined for or against her husband without his consent, except in civil cases by one against the other, or in a criminal case for a crime committed by one against the other. Since the case was filed by Ody against the spouses Cesar and Baby, Baby cannot be compelled to testify for or against Cesar without his consent. (Lezama vs. Rodriguez, 23 SCRA 1166).

18 If the testimony for or against the other spouse is offered during the existence of the marriage, it does not matter if the facts subject of the testimony occurred or came to knowledge of the witness-spouse before the marriage.

19 TAKE NOTE OF THE FF: 1. The prohibition extends not only to testimony adverse to the spouse but also

to a testimony in favour of the spouse. 2. The disqualification is between husband and wife, but the rule does not

preclude the wife from testifying when it involves other parties or accused. Hence, the wife could testify in the murder against the brothers who were jointly tried with husbands of the witness.


28

The answer would be the same if the matters to be testified on were known to Baby or acquired by her prior to her marriage to Cesar, because the marital disqualification rule may be invoked with respect to testimony on any fact. It is immaterial whether such matters were known to Baby before or after her marriage to Cesar.

2000 Bar Q

Vida and Romeo are legally married. Romeo is charged to court with the crime of serious physical injuries committed against Selmo, son of Vida, step- son of Romeo. Vida witnessed the infliction of the injuries on Selmo by Romeo. The public prosecutor called Vida to the witness stand and offered her testimony as an eyewitness. Counsel for Romeo objected on the ground of the marital disqualification rule under the Rules of Court.

1. Is the objection valid? (3%) 2. Will your answer be the same if Vida’s testimony is offered in a civil

case for recovery of personal property filed by Selmo against Romeo? (2%)

SUGGESTED ANSWER:

1. No. While neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, one exception is if the testimony of the spouse is in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants. (Sec, 22, Rule 130). The case falls under this exception because Selma is the direct descendant of the spouse Vide.

No. The marital disqualification rule applies this time. The exception provided by the rules is in a civil case by one spouse against the other. The case here involves a case by Selmo for the recovery of personal property against Vida’s spouse, Romeo. 2006 Bar Q

Leticia was estranged from her husband Paul for more than a year due to his suspicion that she was having an affair with Manuel their neighbor. She was temporarily living with her sister in Pasig City. For unknown reasons, the house of Leticia's sister was burned, killing the latter. Leticia survived. She saw her husband in the vicinity during the incident. Later


29

he was charged with arson in Information filed with the Regional Trial Court, Pasig City. During the trial, the prosecutor called Leticia to the witness stand and offered her testimony to prove that her husband committed arson. Can Leticia testify over the objection of her husband on the ground of marital privilege? (5%) SUGGESTED ANSWER: No, Leticia cannot testify over the objection of her husband, not under marital privilege which is inapplicable and which can be waived, but she would be barred under Sec. 22 of Rule 130, which prohibits her from testifying and which cannot be waived (Alvarez v. Ramirez, G.R. No. 143439, October 14, 2005).


30

Marital privilege

SEC. 24. Disqualification by reason of privileged communication.—The following persons cannot testify as to matters learned in confidence in the following cases: The husband or the wife, during or after the marriage20, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage21 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;22 1998 Bar Q

C is the child of the spouses H and W. H sued his wife W for judicial declaration of nullity of marriage under Article 36 of the Family Code. In the trial, the following testified over the objection of W: C, H and D, a doctor of medicine who used to treat W. Rule on W's objections which are the following: H cannot testify against her because of the rule on marital privilege; [1%] SUGGESTED ANSWER: The rule of marital privilege cannot be invoked in the annulment case under Rule 36 of the Family Code because it is a civil case filed by one against the other.

20 When the marital privileged communication rule applies, the spouse affected by the disclosure of the information or testimony may object even after the dissolution of the marriage.

21 Information received by a spouse before the marriage, even if received

confidentially, will not fall squarely with the provisions of R130.24(a); but divulging the same may be objected under R130.22 upon proper objection as long as the information sought is to be released during the marriage thru a testimony for or against the affected spouse.

22 Where a privileged communication from one spouse to another comes into the hands of a third party, whether legally or not, without collusion and voluntary disclosure on the part of either of the spouses, the privilege is thereby extinguished and the communication, if otherwise comeptent, becomes admissible. [People v. Carlos, 1925]


31

Sample problem

X took part in a robbery. He admitted this to his wife in confidence. Subsequently, their marriage was annulled. X’s wife testified in court and revealed X’s admission to her.

A. The evidence of X’s wife is relevant, therefore, admissible in evidence B. The evidence of X’s wife is both relevant and competent as the marriage

had already been terminated C. The testimony of the wife is excluded by the rules

ANSWER: C. The testimony of the wife is excluded by the rules

NOTES: 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 [R130.24] 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.[R130.22]


32

Dead man’s statue; Survivorship disqualification

SEC. 23. Disqualification by reason of death or insanity of adverse party. ELEMENTS FOR APPLICATION: [DEFENDANT-CLAIM-WITNESS]

1. DEFENDANT: the defendant23 in the case is the executor or administrator or a representative of the deceased or the person of unsound mind.24

2. CLAIM: the suit is upon a claim by the plaintiff against the estate of said deceased or person of unsound mind

3. WITNESS: the witness is the plaintiff, or an assignor of that party, or a person in whose behalf the case is prosecuted25

4. TIME SUBJECT OF TESTIMONY OCCURRED: the subject of the testimony is as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind.

23 The rule will not apply where the plaintiff is the executor or administrator as representative of the deceased or if the plaintiff is the person of unsound mind.

24 In the instant case, the testimony excluded by the appellate court is that of the defendant (petitioner herein) to the affect that the late Juan Chuidian, (the father of private respondent Vicente Chuidian, the administrator of the estate of Juan Chuidian) and the defendant agreed in the lifetime of Juan Chuidian that the 1,500 shares of stock in E. Razon, Inc. are actually owned by the defendant unless the deceased Juan Chuidian opted to pay the same which never happened. The case was filed by the administrator of the estate of the late Juan Chuidian to recover shares of stock in E. Razon, Inc. allegedly owned by the late Juan T. Chuidian. It is clear, therefore, that the testimony of the petitioner is not within the prohibition of the rule. The case was not filed against the administrator of the estate, nor was it filed upon claims against the estate. [Razon v. IAC, G.R. No. 74306, 16 March 1992]

TAKE NOTE OF THE FOLLOWING:

1. when a counterclaim is set-up by the administrator of the estate, the case is removed from the operation of the dead man’s statute.

2. since a claim or demand against the estate implies a claim adverse to the estate, a testimony beneficial to such estate should not be excluded. 25 The rule is intended to be exclusive and does not prohibit a testimony by a

mere witness to the transaction between the plaintiff and the deceased who had no interest in such transaction.


33

2001 Bar Q

Maximo filed an action against Pedro, the administrator of the estate of deceased Juan, for the recovery of a car which is part of the latter’s estate. During the trial, Maximo presented witness Mariano who testified that he was present when Maximo and Juan agreed that the latter would pay a rental of P20,000.00 for the use of Maximo’s car for one month after which Juan should immediately return the car to Maximo. Pedro objected to the admission of Mariano’s testimony. If you were the judge, would you sustain Pedro’s objection? Why? (5%) SUGGESTED ANSWER: No, the testimony is admissible in evidence because witness Mariano who testified as to what Maximo and Juan, the deceased person agreed upon, is not disqualified to testify on the agreement. Those disqualified are parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against the administrator or Juan’s estate, upon a claim or demand against his estate as to any matter of fact occurring before Juan’s death. (Sec. 23 of Rule 130) Sample problems

Which is NOT a requisite in order for the Dead Man’s Statute to be applicable?

A. the witness is a party or an assignor of a party B. the action is against an executor or administrator if an estate C. the testimony should refer to any matter of fact which occurred after the

death of the deceased D. the subject matter of the action is a claim or demand against the estate of

a deceased person

ANSWER: C. the testimony should refer to any matter of fact which occurred after the death of the deceased

A statement made by Willard before he died to the effect that he owes Florenz a sum of money, in a suit filed by Florenz against the estate of Willard, is:

A. admissible because it is a dying declaration B. admissible because it is declaration against interest


34

C. inadmissible because it is hearsay D. inadmissible because of the deadman’s statute

ANSWER: D. inadmissible because of the deadman’s statute


35

Lawyer-client privilege

SEC. 24. Disqualification by reason of privileged communication.— An attorney cannot, without the consent of his client, be examined as to any communication26 made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment27, 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;28 Name of client

As a matter of public policy, a client’s identity should not be shrouded in mystery. Under this premise, the general rule in our jurisdiction as well as in the United States is that a lawyer may not invoke the privilege and refuse to divulge the name or identity of his client. The reasons advanced for the general rule are well established.

1. First, the court has a right to know that the client whose privileged information is sought to be protected is flesh and blood.

26 TAKE NOTE OF THE FOLLOWING: 1. CANON 21, CPR—A lawyer shall preserve the confidence and secrets of his

client even after the attorney-client relationship is terminated. 2. Where a person consults an attorney not as a lawyer but as a friend or

participant in a business transaction, the consultation would not be one made in the course of professional employment or with a view to professional employment.

27 The privilege is extended to communications for the purpose of securing the services of counsel even if the counsel later refuses the professional relationship.

28 A distinction must be made between confidential communications relating to

past crimes already committed and future crimes intented to be commited by the client. If the client seeks his lawyer’s advice with respect to a crime that the former has heretofore committed, he is given the protection of a virtual confessional seal which the attorney-client privilege declares cannot be broken by the attorney without the client’s consent. The same privileged confidentiality, however, does not attach with regard to a crime which a client intends to commit thereafter or in the future and for purposes of which he seeks the lawyer’s advice. [People v. Sandiganbayan, 1997]


36

2. Second, the privilege begins to exist only after the attorney-client relationship has been established. The attorney-client privilege does not attach until there is a client.

3. Third, the privilege generally pertains to the subject matter of the relationship.

4. Finally, due process considerations require that the opposing party should, as a general rule, know his adversary. “A party suing or sued is entitled to know who his opponent is.” He cannot be obliged to grope in the dark against unknown forces.

Notwithstanding these considerations, the general rule is however qualified by some important exceptions.

1. Client identity is privileged where a strong probability exists that revealing the client’s name would implicate that client in the very activity for which he sought the lawyer’s advice.

2. Where disclosure would open the client to civil liability, his identity is privileged.

3. Where the government’s lawyers have no case against an attorney’s client unless, by revealing the client’s name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime, the client’s name is privileged.

Apart from these principal exceptions, there exist other situations which could qualify as exceptions to the general rule. For example, the content of any client communication to a lawyer lies within the privilege if it is relevant to the subject matter of the legal problem on which the client seeks legal assistance. Moreover, where the nature of the attorney-client relationship has been previously disclosed and it is the identity which is intended to be confidential, the identity of the client has been held to be privileged, since such revelation would otherwise result in disclosure of the entire transaction. Summarizing these exceptions, information relating to the identity of a client may fall within the ambit of the privilege when the client’s name itself has an independent significance, such that disclosure would then reveal client confidences. The circumstances involving the engagement of lawyers in the case at bench, therefore, clearly reveal that the instant case falls under at least two


37

exceptions to the general rule. First, disclosure of the alleged client's name would lead to establish said client's connection with the very fact in issue of the case, which is privileged information, because the privilege, as stated earlier, protects the subject matter or the substance (without which there would be no attorney-client relationship). Furthermore, under the third main exception, revelation of the client's name would obviously provide the necessary link for the prosecution to build its case, where none otherwise exists. [Regala v. Sandiganbayan, G.R. No. 105938, 20 September 1996]

Physician-patient privilege

SEC. 24. Disqualification by reason of privileged communication.— A person authorized to practice medicine, surgery or obstetrics29 cannot in a civil case, without the consent of the patient, be examined as to the following:

1. advice given to patient 2. treatment given to patient 3. any information acquired in attending to such patient

made under the following circumstances:

1. made or acquired in a professional capacity 2. information was necessary to enable him to act in that capacity 3. information would blacken the reputation of the patient

1998 Bar Q

C is the child of the spouses H and W. H sued his wife W for judicial declaration of nullity of marriage under Article 36 of the Family Code. In the trial, the following testified over the objection of W: C, H and D, a doctor of medicine who used to treat W. Rule on W's objections which are the

29 In the instant case, the person against whom the privilege is claimed is not one duly authorized to practice medicine, surgery or obstetrics. He is simply the patient's husband who wishes to testify on a document executed by medical practitioners. Plainly and clearly, this does not fall within the claimed prohibition. Neither can his testimony be considered a circumvention of the prohibition because his testimony cannot have the force and effect of the testimony of the physician who examined the patient and executed the report. [Krohn v. Court of Appeals, G.R. No. 108854, 14 June 1994]


38

following: D cannot testify against her because of the doctrine of privileged communication between patient and physician. [2%] SUGGESTED ANSWER: D, as a doctor who used to treat W, is disqualified to testify against W over her objection as to any advice or treatment given by him or any information which he may have acquired in his professional capacity. (Sec. 24 [c], Rule 130. Rules of Court.)


39

Priest-penitent privilege

SEC. 24. Disqualification by reason of privileged communication.— 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; Public officer

SEC. 24. Disqualification by reason of privileged communication.— 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. (21a)30 Parental privilege and filial privilege

SEC. 25. Parental and filial privilege.—No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants.(20a) ART. 215, FAMILY CODE—No descendant shall be compelled in a criminal case to testify against his parents and grandparent, except when such testimony is indispensable in a crime, against the descendant or by one parent against the other.

30 But this privilege, as this Court notes, is intended not for the protection of public officers but for the protection of public interest (Vogel vs. Gruaz 110 U.S. 311 cited in Moran, Comments on the Rules of Court, 1980 Ed. Vol. 5, p. 211). Where there is no public interest that would be prejudiced, this invoked rule will not be applicable. The rule that a public officer cannot be examined as to communications made to him in official confidence does not apply when there is nothing to show that the public interest would suffer by the disclosure question. ... ,( Agnew vs. Agnew,'52 SD 472, cited in Martin Rules of Court of the Philippines, Third Edition, Vol. 5, p. 199). [Banco Filipino v. Monetary Board, G.R. No. 70054, 8 July 1986]


40

1998 Bar Q

C is the child of the spouses H and W. H sued his wife W for judicial declaration of nullity of marriage under Article 36 of the Family Code. In the trial, the following testified over the objection of W: C, H and D, a doctor of medicine who used to treat W. Rule on W's objections which are the following: C cannot testify against her because of the doctrine on parental privilege; and [2%] SUGGESTED ANSWER: The doctrine of parental privilege cannot likewise be invoked by W as against the testimony of C, their child. C may not be compelled to testify but is free to testify against her. (Sec. 25. Rule 130. Rules of Court; Art. 215, Family Code.)


41

Admissions

SEC. 26. Admissions of a party.—The act, declaration or omission of a party as to a relevant fact may be given in evidence against him.(22) Offer of compromise

CIVIL CASES CRIMINAL CASES

not an admission of any liability implied admission of guilt31

not admissible in evidence against the offeror

may be received in evidence as an implied admission of guilt.

Offer to pay or the payment of medical, hospital, or other expenses occasioned by an injury is not admissible as proof of civil liability for the injury

EXCEPTIONS: 1. those involving quasi-offenses

(criminal negligence) 2. those allowed by law to be

compromised 3. offer to pay or the payment of

medical, hospital, or other expenses occasioned by an injury is not admissible as proof of criminal liability for the injury

1998 Bar Q

A was accused of having raped X. Rule on the admissibility of the following

31 TAKE NOTE OF THE FOLLOWING: 1. To be an implied admission of guilt, the offer must be an offer of compromise by

the accused (or his representative) . 2. An offer to compromise does not require that a criminal complaint be first held before

the offer can be received in evidence against the offeror. What is required is that after committing the crime, the accused or his representative makes an offer to compromise and such offer is proved. [People v. Yparriguere, 1997]

3. It has long been held, however, that in such cases the accused is permitted to show that the offer was not made under a consciousness of guilt, but merely to avoid the inconvenience of imprisonment or for some other reason which could justify a claim by the accused that the offer to compromise was not in truth an admission of guilt or an attempt to avoid the legal consequences which would ordinarily ensue therefrom. Also, it has been held that where the accused was not present at the time the offer for monetary consideration was made (or where the accused did not take part in any of the negotiations and the effort to settle the case), such offer would not save the day for the prosectution. xxx. [People v. Godoy, 1997]


42

pieces of evidence: an offer of A to marry X [3%] SUGGESTED ANSWER: A's offer to marry X is admissible in evidence as an Implied admission of guilt because rape cases are not allowed to be compromised. (Sec. 27 of Rule 13O; People vs. Domingo, 226 SCRA 156.)

1997 Bar Q

A, while driving his car, ran over B. A visited B at the hospital and offered to pay for his hospitalization expenses after the filing of the criminal case against A for reckless imprudence resulting in serious physical injuries. The offer was rejected because B considered the amount offered as inadequate. Is the offer by A to pay the hospitalization expenses of B admissible in evidence? SUGGESTED ANSWER: The offer by A to pay the hospitalization expenses of B is not admissible in evidence to prove his guilt in both the civil and criminal cases. (Rule 130, Sec. 27, fourth par.). Sample problem

An offer to pay for the payment of medical, hospital and other expenses

occasioned by an injury:

A. is admissible as proof of civil or criminal liability for the injury B. is not admissible as proof of civil or criminal liability for the injury C. is admissible as proof of liability only in civil cases D. is admissible as proof of liability only in criminal cases

ANSWER: B. is not admissible as proof of civil or criminal liability for the injury

Plea of guilt

SEC. 27. Offer of compromise not admissible.— A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to a lesser offense, is not admissible in evidence against the accused who made the plea or offer.


43


44

Res inter alios acta (type 1)

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.(25a)32 EXCEPTIONS—

CO-PARTNER/ AGENT33

The act or declaration: 1. is within the scope of authority; 2. and during the existence of the

partnership or agency. 3. The partnership is shown by evidence

other than such act or declaration

CONSPIRATOR The act or declaration: 1. relates to the conspiracy 2. was made during the existence of the

conspiracy 3. The conspiracy is shown by evidence

other than such act or declaration

PRIVIES The act or declaration: 1. was made by a person while holding title

to property 2. was in relation to the property 3. The statement may be received in

evidence against one who derives title to property from said person.

32 The res inter alios acta rule ordains that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. An extrajudicial confession is binding only upon the confessant and is not admissible against his co-accused. The reason for the rule is that, on a principle of good faith and mutual convenience, a man's own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him.

33 The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party.(26a)


45

Sample problem 1

Henry testified that a month after the robbery Asiong, one of the accused, told him that Carlos was one of those who committed the crime with him. Is Henry’s testimony regarding what Asiong told him admissible in evidence against Carlos?

A. No, since it is hearsay. B. No, since Asiong did not make the statement during the conspiracy. C. Yes, since it constitutes admission against a co-conspirator. D. Yes, since it part of the res gestae.

ANSWER: B. No, since Asiong did not make the statement during the conspiracy. Admission by silence

SEC. 32. Admission by silence.—REQUISITES:

1. there is an act or declaration made in the presence and within the hearing or observation of a party

2. the act or declaration is such as naturally to call for action or comment if not true, and when proper

3. the said party does or says nothing, even if possible for him to do so34

34 Petitioner argues that by not responding to the above letter which expressly urged them to reply if the statements therein contained are untrue, respondents in effect admitted the matters stated therein, pursuant to the rule on admission by silence in Sec. 32, Rule 130, and the disputable presumption that acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact. Petitioner’s argument lacks merit. One cannot prove his claim by placing the burden of proof on the other party. Indeed, "(a) man cannot make evidence for himself by writing a letter containing the statements that he wishes to prove. He does not make the letter evidence by sending it to the party against whom he wishes to prove the facts [stated therein]. He no more can impose a duty to answer a charge than he can impose a duty to pay by sending goods. Therefore a failure to answer such adverse assertions in the absence of further circumstances making an answer requisite or natural has no effect as an admission." Moreover, the rule on admission by silence applies to adverse statements in writing if the party was carrying on a mutual correspondence with the declarant. However, if there was no such mutual correspondence, the rule is relaxed on the theory that while the party would have immediately reacted by a denial if the statements were orally made in


46

Confession

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.(29a) TAKE NOTE OF THE FOLLOWING CASES: � The custodial interrogation of accused-appellant was violative of Section 12, Article

III of the Constitution. The Constitution provides that "Any confession or admission obtained in violation of this section or Section 17 hereof shall be inadmissible against him." Section 17, Article III provides: "No person shall be compelled to be a witness against himself." Any confession, including a re-enactment without admonition of the right to silence and to counsel, and without counsel chosen by the accused is inadmissible in evidence. [People v. Yip Wai Ming, G.R. No. 120959, 14 November 1996]

� At the outset, the Court holds that the signatures of accused on the boxes, as well as on the plastic bags containing “shabu,” are inadmissible in evidence. A careful study of the records reveals that accused were never informed of their fundamental rights during the entire time that they were under investigation. Specifically, accused were not informed of their Miranda rights i.e. that they had the right to remain silent and to counsel and any statement they might make could be used against them, when they were made to affix their signatures on the boxes of Alpen Cereals while they were at the NAIA and again, on the plastic bags when they were already taken in custody at Camp Crame. By affixing their signatures on the boxes of Alpen Cereals and on the plastic bags, accused in effect made a tacit admission of the crime charged for mere possession of “shabu” is punished by law. These signatures of accused are tantamount to an uncounselled extra-judicial confession which is not sanctioned by the Bill of Rights (Section 12 [1][3], Article III, 1987 Constitution). They are, therefore, inadmissible as evidence for any admission wrung from the accused in violation of their constitutional rights is inadmissible against them. [People v. Wong Chuen Ming, G.R. Nos. 112801-11, 12 April 1996]

his presence, such prompt response can generally not be expected if the party still has to resort to a written reply. In the same manner, we also cannot assume an admission by silence on the part of Balaguer by virtue of his failure to protest or disclaim the attribution to him by the newspapers that he is the source of the articles. As explained above, the rule on admission by silence is relaxed when the statement is not made orally in one’s presence or when one still has to resort to a written reply, or when there is no mutual correspondence between the parties. [Villanueva v. Balaguer, G.R. No. 180197, 23 June 2009]


47

� Whether or not accused Aleman’s extrajudicial confession is admissible in evidence. Confession to be admissible must be

1. voluntary; 2. made with the assistance of a competent and independent counsel 3. express; and 4. in writing.

RULES ON EVIDENCE (2)

PREVIOUS CONDUCT AS EVIDENCE

Previous conduct as evidence (Res inter alios acta type 2) ............................................... 4

Character evidence ............................................................................................................................... 6

Character evidence in child abuse cases ................................................................................... 7

Unaccepted offer ................................................................................................................................... 9

HEARSAY

Testimony generally confined to personal knowledge ......................................................... 9

Hearsay .................................................................................................................................................... 10

Dying declaration ................................................................................................................................ 10

Declaration against interest ............................................................................................................ 14

Act or declaration about pedigree ............................................................................................... 16

Family reputation ................................................................................................................................ 17

Common reputation ........................................................................................................................... 17

Res gestae .............................................................................................................................................. 17

Entries in the course of business ................................................................................................ 19

Entries in official records................................................................................................................. 20

Commercial lists .................................................................................................................................. 21

Learned treatises ................................................................................................................................. 21

Testimony or deposition at a former proceeding .................................................................. 21

Child hearsay exception ................................................................................................................... 22

OPINION

Opinion rule ........................................................................................................................................... 23

BURDEN OF PROOF AND PRESUMPTIONS

Burden of proof and presumptions ............................................................................................. 26

EXAMINATION OF WITNESSES

How examination to be done .......................................................................................................... 31

Recording of proceedings ............................................................................................................... 31

Rights and obligations of a witness ............................................................................................ 31

Order of examination ......................................................................................................................... 33

Direct examination .............................................................................................................................. 33

Cross examination .............................................................................................................................. 33

Re-direct examination ....................................................................................................................... 34

Re-cross examination ........................................................................................................................ 34

Recalling witnesses ........................................................................................................................... 35

Leading questions .............................................................................................................................. 36

Impeachment of witness .................................................................................................................. 37

Party may not impeach own witness .......................................................................................... 37

Hostile witness ..................................................................................................................................... 37

How to impeach hostile witness ................................................................................................... 38

Good character evidence ................................................................................................................. 38

Exclusion of other witnesses ......................................................................................................... 38

Reference to memorandum ............................................................................................................ 39

Part of transaction, writing, record given in evidence ........................................................ 39

Right to inspect writing shown to witness ............................................................................... 40

AUTHENTICATION AND PROOF OF DOCUMENTS

Classes of documents ....................................................................................................................... 41

Public documents as evidence ..................................................................................................... 42

Irremovability of public record ...................................................................................................... 42

Proof of public documents .............................................................................................................. 43

Proof of lack of record ...................................................................................................................... 44

Impeachment of judicial record..................................................................................................... 45

Proof of private documents ............................................................................................................ 45

Ancient documents ............................................................................................................................ 45

Genuineness of handwriting .......................................................................................................... 46

Alterations .............................................................................................................................................. 46

Documents in an unofficial language ......................................................................................... 47

Proof of private electronic document ......................................................................................... 47

OFFER AND OBJECTION

Offer of evidence ................................................................................................................................. 48

When to make offer ............................................................................................................................ 48

Objection ................................................................................................................................................. 48

Continuing objection ......................................................................................................................... 49

Ruling ....................................................................................................................................................... 49

Striking out answer ............................................................................................................................ 49

Tender of excluded evidence ......................................................................................................... 49

WEIGHT AND SUFFICIENCY OF EVIDENCE

Preponderance of evidence ............................................................................................................ 51

Proof beyond reasonable doubt ................................................................................................... 51

Extrajudicial confession ................................................................................................................... 51

Corpus delicti ........................................................................................................................................ 51

Circumstantial evidence ................................................................................................................... 52

Substantial evidence.......................................................................................................................... 52

Preponderance of evidence ............................................................................................................ 52

Evidence on motion ........................................................................................................................... 52

RULE 130: RULES ON ADMISSIBILITY VSF2012

Previous conduct as evidence (Res inter alios acta type 2)

SEC. 34. Similar acts as evidence.1—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 a similar thing at another time; but it may be received to prove a

S Specific intent

K Knowledge

I Identity

P Plan

C Custom

U Usage

S Scheme

H Habit

1 Rule for witnesses: [R132.11]: 1. A witness may not be impeached by evidence of particular wrongful acts; 2. But it may be shown that he was previously convicted of an offense.


Sample question 1

Ben testified that Jaime, charged with robbery, has committed bag-snatching three times on the same street in the last six months. Can the court admit this testimony as evidence against Jaime? A. No, since there is no showing that Ben witnessed the past three robberies.

B. Yes, as evidence of his past propensity for committing robbery. C. Yes, as evidence of a pattern of criminal behavior proving his guilt of the present offense.

D. No, since evidence of guilt of a past crime is not evidence of guilt of a present crime.

ANSWER: D. No, since evidence of guilt of a past crime is not evidence of guilt of a present crime.

X is arrested for carjacking. An informaton is subsequently filed against him. The prosecution sought to introduce the fact that X has two other pending cases for carjacking against him and one pending case for estafa. X objects to the admission of these other pending cases. The court should: A. admit these because they tend to show the criminal disposition of X B. admit only the fact of the two other carjacking cases since te Estafa case does not prove X’s predisposition to carnapping

C. reject the other pending cases for being irrelevant D. reject the other pending ases for being hearsay

NOTES: 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 a 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. [R130.34]


Character evidence

SEC.51. Character evidence not generally admissible; exceptions: CRIMINAL CASES—

ACCUSED OFFENDED PARTY

may prove his good moral character which is pertinent to the moral trait involved in the offense charged

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.

Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged2.

CIVIL CASES— 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.

2 The claim that the trial court also erred in not allowing the defense to prove that the deceased had a violent, quarrelsome, or provocative character cannot also deserve consideration. While good or bad moral character may be availed of as an aid to determine the probability or improbability of the commission of an offense, such is not necessary in the crime of murder where the killing is committed through treachery or premeditation. The proof of such character may only be allowed in homicide cases to show “that it has produced a reasonable belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was necessary.” [People v. Soliman, 1957]


RULE ON WITNESSES—

ORDINARY UNWILLING , HOSTILE, ADVERSE PARTY

Evidence of the good moral character of a witness is not admissible until such character has been impeached

A witness may be impeached by the party against whom he was called: 1. by contradictory evidence 2. by evidence that his general

reputation for truth, honesty, 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. [R132.11]

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 part, except by evidence of his bad character

2002 Bar Q

D was prosecuted for homicide for allegedly beating up V to death with an iron pipe. May the prosecution introduce evidence that V had a good reputation for peacefulness and non- violence? Why? (2%) May D introduce evidence of specific violent acts by V? Why? (3%)

Character evidence in child abuse cases

The following are inadmissible: 1. evidence offered to prove that the alleged victim engaged in other sexual behaviour

2. evidence to prove the sexual predisposition of the victim EXCEPTION—Evidence of specific instances of sexual behaviour by the alleged victim is admissible to prove that a person other than the accused was the source of semen, injury or other physical evidence.


Sample question 1

Which of the following is NOT correct? A party against whom a witness testified may impeach the latter by: A. contradictory evidence B. evidence that his general reputation for truth, honesty or integrity is bad

C. evidence that he has made at other time statements inconsistent with his present testimony

D. evidence of particular wrongful acts committed by the witness

ANSWER: D. evidence of particular wrongful acts committed by the witness NOTES: A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honesty, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense. [R132.11]

A witness may be impeached by evidence of: A. his bad moral character B. his bad reputation C. his propensity to lie

An adverse party’s witness may NOT be impeached by: A. evidence that in the community where he resides, his general reputation for truth, honesty or integrity is bad

B. a prior inconsistent statement C. particular instances of immoral or wrongful acts, or improper or unlawful conduct that the witness may have committed

D. evidence of a prior conviction of an offense which may be proved by


eliciting an admission from the witness or by a record of his conviction

ANSWER: C. particular instances of immoral or wrongful acts, or improper or unlawful conduct that the witness may have committed

NOTES: 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. [R132.12]

Impeachment of adverse party's witness (not “adverse party

witness”): A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honesty, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense. [R132.11]

Unaccepted offer

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.(49a) Testimony generally confined to personal knowledge

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 perception3, except as otherwise provided in these rules. (30a)

3 While the testimony of a witness regarding the statement made by another person, if intended to establish the truth of the fact asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in


Hearsay

ELEMENTS 1. out-of-court statement; not made by the declarant in the hearing or trial

2. out-of-court statement is repeated and offered by a witness in court to prove the truth of the matters asserted by the statement.

TAKE NOTE OF THE FOLLOWING:

� Evidence is hearsay when its probative value depends, in whole or in part, on the competency and credibility of some persons other than the witness by whom it is sought to produce it.

� If the affiants of affidavits do not take the witness stand to affirm their averments in their affidavits, such affidavits must be excluded from the judicial proceeding, being inadmissible hearsay.

Dying declaration

SEC. 37. Dying declaration.—The declaration of a dying person4, made under the consciousness of an impending death5, 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.(31a) [1998 BAR Q] 1999 Bar Q

The accused was charged with robbery and homicide. The victim

the record is merely to establish the fact that the statement was made or the tenor of such statement. [People v. Gaddi, 1998]

4 The declarant should be competent as a witness had s/he survived. [People v. Macandog, 2001]

5 True, Payla made no express statement showing that he was conscious of his impending death. The law, however, does not require the declarant to state explicitly a perception of the inevitability of death. The foreboding may be gleaned from surrounding circumstances. [People v. Latayda, 2004]


suffered several stab wounds. It appears that eleven (11) hours after the crime, while the victim was being brought to the hospital in a jeep, with his brother and a policeman as companions, the victim was asked certain questions which he answered, pointing to the accused as his assailant. His answers were put down in writing, but since he was a in a critical condition, his brother and the policeman signed the statement. Is the statement admissible as a dying declaration? Explain. (2%) SUGGESTED ANSWER: Yes. The statement is admissible as a dying declaration if the victim subsequently died and his answers were made under the consciousness of impending death (Sec. 37 of Rule 130). The fact that he did not sign the statement point to the accused as his assailant, because he was in critical condition, does not affect its admissibility as a dying declaration. A dying declaration need not be in writing (People v. Viovicente, 286 SCRA 1) Sample problems

Which of the following is NOT a requisite for the admissibility of a dying declaration? A. The declaration relates to the facts or circumstances pertaining to the fatal injury or death

B. The declarant is dead C. The declaration is made in connection with a startling occurrence

D. The declarant would have been competent to testify had he survived.

ANSWER: C. The declaration is made in connection with a startling occurrence

A dying declaration: A. is admissible only in criminal cases wherein the death of the declarant is the subject of the inquiry, as evidence of the cause


and surrounding circumstances of such death B. is admissible in civil and criminal cases wherein the death of the declarant is the subject of the inquiry, as evidence of the cause and surrounding circumstances of such death

C. is admissible in any case wherein the death of the declarant is the subject of the inquiry, as evidence of the cause and surrounding circumstances of such death

D. is not admissible in any case brought for being hearsay

ANSWER: C. is admissible in any case wherein the death of the declarant is the subject of the inquiry, as evidence of the cause and surrounding circumstances of such death NOTES: 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. [R130.37] The declarant should be competent as a witness had s/he survived. [People v. Macandog, 2001] The law, however, does not require the declarant to state explicitly a perception of the inevitability of death. The foreboding may be gleaned from surrounding circumstances. [People v. Latayda, 2004]

X is shot in the leg. In his mind, he believes that he will die. Thus, when the police arrive a few minutes after the shooting, he tells the police, “I am in serious condition. I beg you to arrest Y. He shot me.” An Information for homicide is filed against Y. Two weeks later, X gets run over by a train and dies. During trial, the prosecution calls the police officer who arrived at the scene of the shooting and offers to prove X’s statement thru the police officer. Counsel for Y objects. The court should: A. deny the police officer’s testimony on the ground that it is hearsay and consequently Y will not be able to cross-examine the declarant X

B. admit the police officer’s testimony on the ground that Y made his declaration under consciousness of impending death


C. admit the police officer’s testimony on the ground that the while the leg wound was not serious, Y’s declaration is nevertheless admissible since admissibility and weight of evidence are different issues

D. deny the police officer’s testimony on the ground that the leg wound is not serious

NOTES: A dying declaration is admissible as evidence of the cause and surrounding circumstances of the death of the declarant, not merely the cause of his injuries. Also, a dying declaration is offered in evidence in any case wherein his death is the subject of inquiry.

Y asked X, who was dying and bloodied, with a knife still planted on his back, if he (X) was the one who killed Z. X said no and pointed to B as the killer. X died. A. X’s statement is admissible as a dying declaration in a prosecution against B for the death of Z

B. X’s statement is not admissible as a dying declaration in the prosecution against B for the death of Z

C. X’s statement is admissible as part of res gestae

ANSWER: B. X’s statement is not admissible as a dying declaration in the prosecution against B for the death of Z NOTES: Out-of-court statement was not about the cause and surrounding circumstances of the declarant’s death.


Declaration against interest

SEC. 38. Declaration against interest.6—The declaration made by a person deceased, 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.(32a) Sample problem

A guy casually strolling in the park was suddenly clubbed by a man from behind. The hapless guy’s head was split open by the blow. An elderly lady who witnessed the event let out a high-pitched streak and screamed “I owe my neighbor money.” Which of the following is true? A. The declaration is a dying declaration if the elderly lady, who turns out to be inflicted with cancer, subsequently suffers from a heart attack and dies.

B. The declaration would be inadmissible as proof of the elderly woman’s liability to her neighbor if presented by a witness other than the elderly woman.

C. The declaration is part of the res gestae since it was made under the stress of excitement of the startling event.

6 While he explicitly declared that the subject property belonged to Quintin, at the same time he was remarkably silent about his claim that he acquired one-half thereof during the lifetime of Quintin. He asserted his claim to the subject property quite belatedly. Thus, the statement and the accompanying silence may be appreciated in more than one context. It is a declaration against interest and a judicial admission combined. [Heirs of Miguel Franco v. Court of Appeals, 2003] Furthermore, Sembrano’s testimony on behalf of petitioners is about an alleged declaration against interest of a person who is dead in an action that is in effect a claim against the estate. Such a testimony, if coming from a party would be barred by the surviving parties rule, or the dead man’s statute, in the Rules of Court. [Hko Ah Pao v. Ting, 2006]


D. The declaration is admissible as a declaration against interest if the elderly woman subsequently suffers from a heart attack and dies.

ANSWER: D. The declaration is admissible as a declaration against interest if the elderly woman subsequently suffers from a heart attack and dies. NOTES: The out-of-court statement is not part of res gestae as it does not relate to the circumstances of the startling occurrence (“statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof). It is not a dying declaration as it was not made under the consciousness of an impending death. The declaration made by a person deceased, 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. [R130.38]

Which of the following is NOT REQUIRED of a declaration against interest as an exception to the hearsay rule? A. The declarant had no motive to falsify and believed such declaration to be true.

B. The declarant is dead or unable to testify. C. The declaration relates to a fact against the interest of the declarant.

D. At the time he made said declaration he was unaware that the same was contrary to his aforesaid interest.

ANSWER: D. At the time he made said declaration he was unaware that the same was contrary to his aforesaid interest.


NOTES: The declaration made by a person deceased, 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. [R130.38]

Act or declaration about pedigree

SEC. 39. Act or declaration about pedigree7.— 1. the declarant is dead or unable to testify 2. the declarant is related to the person whose pedigree8 is the subject of the inquiry by birth or marriage

3. such relationship is shown by evidence other than the declaration

4. the declaration was made ante litem motam, that is, not only before the commencement of the suit involving the subject matter of the declaration, but before any controversy has arisen.

Sample problem

For pedigree evidence to be admissible: A. it is essential that the declarant is deceased or unable to testify B. it is not essential that the declarant is deceased or unable to testify C. it is essential only that the decalarant is deceased D. it is essential only that the declarant is unable to testify

7 EXAMPLE: A declaration made by Jose, already dead, prior to his death and prior to any controversy that Juan is his illegitimate son, is a declaration about pedigree.

8 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.


ANSWER: A. it is essential that the declarant is deceased or unable to testify

Family reputation

SEC. 40. Family reputation or tradition regarding pedigree.— The reputation or tradition existing in a family previous to the controversy, 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, engraving on rings, family portraits and the like,9 may be received as evidence of pedigree.(34a) Common reputation

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.(35) Res gestae

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 as part of the res gestae. So, also, statements accompanying an equivocal act material

9 Private letters and notes do not fall under the phrase “and the like.”In light of the rule of esjudem genris, the enumeration contained in the second portion of the provision is limited to objects which are commonly known as “family possessions,” or those articles which represent, in effect, a family’s statement of its belief as to the pedigree of a person. These have been described as objects “openly exhibited and well known to the family,” or those which, if preserved in a family, may be regarded as giving a family tradition.[Jison v. Court of Appeals, G.R. No. 124583, 1998]


to the issue, and giving it a legal significance, may be received as part of the res gestae.(36a)

Sample problems

To prove that Susan stabbed her husband Elmer, Rico testified that he heard Leon running down the street, shouting excitedly, “Sinasaksak daw ni Susan ang asawa niya! (I heard that Susan is stabbing her husband!)” Is Leon's statement as narrated by Rico admissible? A. No, since the startling event had passed. B. Yes, as part of the res gestae. C. No, since the excited statement is itself hearsay. D. Yes, as an independently relevant statement.

ANSWER:C. No, since the excited statement is itself hearsay.

To prove payment of a debt, Bong testified that he heard Ambo say, as the latter was handing over money to Tessie, that it was in payment of debt. Is Bong’s testimony admissible in evidence? A. Yes, since what Ambo said and did is an independently relevant statement.

B. No, since what Ambo said and did was not in response to a startling occurrence.

C. No, since Bong’s testimony of what Ambo said and did is hearsay.

D. Yes, since Ambo’s statement and action, subject of Bong’s testimony, constitutes a verbal act.

ANSWER: D. Yes, since Ambo’s statement and action, subject of Bong’s testimony, constitutes a verbal act. NOTES: 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. [R130.42]


Entries in the course of business

SEC. 43. Entries in the course of business.—ELEMENTS 1. Entries were made at or near the time of the transactions referred to

2. Such entries were made in the regular course of business 3. The person making the entries was in a position to know10 the facts stated in the entries

4. The person making the entries did so in his professional capacity, or in preference of duty and in the regular course of business

5. The person making the entry is now dead or unable to testify RULE 8, Rules on Electronic Evidence—A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means

1. at or near the time of or from transmission or supply of information

2. by a person with knowledge thereof, and 3. kept in the regular course or conduct of a business activity, and

4. such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means,

5. all of which are shown by the testimony of the custodian or other qualified witnesses,

is excepted from the rule on hearsay evidence

10 Section 43, Rule 130 does not apply to this case because it does not involve entries made in the course of business. Furthermore, Rayos testified on a statement of account she prepared on the basis of invoices and delivery orders which she, however, knew nothing about. She had no personal knowledge of the facts on which the accounts were based since, admittedly, she was not involved in the delivery of goods and was merely in charge of the records and documents of all accounts receivable as part of her duties as credit and collection manager. [Nestle Phil. V. FY Sons, 2006]


Sample problem

The plaintiff wants to introduce an entry made by one his delivery men in a receipt to prove that he was able to deliver 100 TV sets to the defendant. The delivery man is already dead. Which of the following is true? A. The entry is hearsay, but admissible. B. The entry is not hearsay, hence admissible. C. The entry is hearsay, hence not admissible. D. The entry is not hearsay, but inadmissible.

ANSWER: A. The entry is hearsay, but admissible.

NOTES: Entries made at, or near the time of the 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. [R130.43]

Entries in official records

SEC. 44. Entries in official records.— 1. the entry was made by a public officer, or by another person specially enjoined to do so

2. it was made by the public officer in the performance of his duties, or by such other person in the performance of a duty specially enjoined by law

3. the public officer or other person had sufficient knowledge of the facts stated by him, which must have been acquired by him personally or through official information.

Entries in official records are only prima facie evidence of the facts therein stated. They are not conclusive. [People v. Gabriel, 1996]


Commercial lists

Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilations 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.(39) Learned treatises

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.(40a) Testimony or deposition at a former proceeding

SEC. 47. Testimony or deposition at a former proceeding.— 1. The witness is dead or unable to testify11 2. His testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests

3. The former case involved the same subject matter as that in the present case, although on different causes of action

4. The issue testified to by the witness in the former trial is the same issue involved in the present case

5. The adverse party had the opportunity to cross-examine him.

11 The exception does not apply in this case. The witnesses are not dead. They are not outside the Philippines. Here, the witnesses in question are available. Only, they refused to testify. [Tan v. Court of Appeals, 1967]


Child hearsay exception

SEC. 28. Hearsay exception in child abuse cases.— A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules: 1. Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object.

2. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent.

3. In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability.


Opinion rule

SEC. 48. General rule.—The opinion of a witness is not admissible. EXCEPTIONS: 1. EXPERT WITNESS: SEC. 49. Opinion of expert witness.—The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence.(43a)12

2. IHMI: SEC. 50. Opinion of ordinary witnesses.—The opinion of a witness for which proper basis is given, may be received in evidence regarding:

I Identity of a person whom he has adequate knowledge

H Handwriting with which he has sufficient familiarity

M Mental sanity of a person

with whom he is sufficiently acquainted

I witness may also testify on his Impressions of the emotion, behavior, condition or appearance of a person.

12 Expert opinions are not ordinarily conclusive. They are generally regarded as purely advisory in character. [Bacalso v. Padigos]


1994 Bar Q

At Nolan’s trial for possession and use of the prohibited drug, known as “shabu:, his girlfriend Kim, testified that on a particular day, he would see Nolan very prim and proper, alert and sharp, but that three days after, he would appear haggard, tired and overly nervous at the slightest sound he would hear. Nolan objects to the admissibility of Kim’s testimony on the ground that Kim merely stated her opinion without having been first qualified as expert witness. Should you, as judge, exclude the testimony of Kim?

SUGGESTED ANSWER: No. The testimony of Kim should not be excluded. Even though Kim is not an expert witness, Kim may testify on her impressions of the emotion, behavior, condition or appearance of a person. (Sec. 50, last par., Rule 130).

Sample problem

In a case, the prosecutor asked the medical expert the question, “Assuming that the assailant was behind the deceased before he attacked him, would you say that treachery attended the killing?” Is this hypothetical question permissible?

A. No, since it asks for his legal opinion. B. Yes, but conditionally, subject to subsequent proof that the assailant was indeed behind the deceased at that time.

C. Yes, since hypothetical questions may be asked of an expert witness.

D. No, since the medical expert has no personal knowledge of the fact.

ANSWER: A. No, since it asks for his legal opinion.


The testimony of a lay witness that the accused appeared nervous: A. is inadmissible for being an opinion of an ordinary witness B. is admissible under the rule on impression testimony C. is admissible as an exception to the opinion rule D. is inadmissible under any rule of evidence

ANSWER: B. is admissible under the rule on impression testimony

RULE 131: BURDEN OF PROOF AND PRESUMPTIONS

EVIDENCE 26

Burden of proof and presumptions

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.13(1a, 2a) [2004 BAR Q] 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 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:

(b) The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them.(3a) 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 take 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 ones is produced;

13 Burden of evidence: Duty of a party to go forward with evidence to overthrow any prima facie presumption against him.


EVIDENCE 27

(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 possesses, 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 the money, or the delivery of anything, has paid the money or delivered the thing accordingly;

(l) That a person acting in a public office was regularly appointed or elected to it;

(m) That official duty has been regularly performed; (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 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) That private transactions have been fair and regular; (q) That the ordinary course of business has been followed; (r) That there was a 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 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 the mail; (w) That after an absence of seven years, it being unknown

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

The absentee shall not be considered dead for the purpose

of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.


EVIDENCE 28

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 which 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 a well-founded belief that the absent spouse is already dead. In case of disappearance, where there is danger of death under 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 a summary proceeding as provided in the Family Code and in the rules for a declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (x) That acquiescence resulted from a 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 persons acting as copartners have entered into a

contract of copartnership; (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 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 cases 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


EVIDENCE 29

shares including joint deposits of money and evidences 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 the former marriage, provided it be born within three hundred days after the termination of the former marriage;

(2) A child born after one hundred eighty days follow ing 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. (ee) That a thing once proved to exist continues as long as

is usual with things of that nature; (ff) That the law has been obeyed; (gg) That a printed or published book, purporting to be

printed or published by public authority, was so printed or published;

(hh) That a printed or published book, purporting to contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases;

(ii) That a trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest;

(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 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 of sixty, the younger is deemed to have survived;


EVIDENCE 30

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. (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)

SEC. 4. No presumption of legitimacy or illegitimacy.—There is no presumption of legitimacy or illegitimacy of a child born after three hundred days following the dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation.(6)

RULE 132: PRESENTATION OF EVIDENCE

EVIDENCE 31

How examination to be done

SECTION 1. Examination to be done in open court.— The examination of witnesses presented in a trial or hearing shall be done

1. in open court 2. under oath or affirmation 3. unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally.

Recording of proceedings

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, stenotypist or recorder and certified as correct by him shall be deemed prima facie a correct statement of such proceedings.(2a) Rights and obligations of a witness

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


EVIDENCE 32

5. Not to give an answer which will tend to degrade his reputation, unless it be to 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.

Sample problem 1

Which of the following is false?

A. A witness may refuse to answer a question on the ground that his answer may tend to subject him to a penalty for an offense.

B. A witness may not refuse to answer to the fact of his previous final conviction for an offense.

C. A witness may refuse to answer a question on the ground that his answer may tend to establish a claim against him.

D. A witness may not refuse to answer a question which requires an answer that will tend to degrade his reputation if it is the very fact in issue.

ANSWER: C .A witness may refuse to answer a question on the ground that his answer may tend to establish a claim against him.

NOTES: Rights and obligations of a witness [R132.3.—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 be to 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.(3a, 19a)

R132.11 … 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.


EVIDENCE 33

Order of examination

SEC. 4. Order in the examination of an individual witness.— The order in which an individual witness may be examined is as follows:

a. Direct examination by the proponent b. Cross-examination by the opponent c. Re-direct examination by the proponent d. Re-cross-examination by the opponent

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.(5a) Cross examination

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 any 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.(8a) Exceptions: 1. The unwilling or hostile witness so declared, or the witness who is an adverse party 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. [R132.12]

2. In all criminal prosecutions, the accused shall be entitled to testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. [R115.1d]


EVIDENCE 34

Sample problem1

Which of the following is true? A. The accused may be cross examined as to any matter stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness.

B. The adverse party witness may be cross examined as to any matter stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness.

C. A hostile may only be cross examined on the subject matter of his examination-in-chief.

D. The defendant may only be cross examined on the subject matter of his examination-in-chief.

ANSWER: C. A hostile may only be cross examined on the subject matter of his examination-in-chief.

Re-direct 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.(12) Re-cross examination

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.(13)


EVIDENCE 35

Recalling witnesses

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 discretion14, as the interests of justice may require (14)

14 The discretion to recall a witness is not properly invoked or exercisable by an applicant’s mere general statement that there is a need to recall a witness. “in the interest of justice” or “in order to to afford a party full opportunity to present his case” or that, as here, “there seems to be many points and questions that should have been asked in the earlier interrogation.” To regard expressed generalities such as these as sufficient ground for recall of witnesses would make the recall of a witness no longer discretionary but ministerial. Something more than bare assertion of the need to propound additional questions is essential before a Court’s discretion may rightfully be exercised to grant or deny recall. There must be a satisfactory showing of some concrete, substantial ground for the recall. There must be a satisfactory showing on the movant’s part, for instance, that particularly identified material points were not covered in the cross-examination, or that particularly described vital documents were not presented to the witness whose recall is prayed for, or that the cross-examination was conducted in so inept a manner as to result in a virtual absence thereof. [People v. Rivera, 1991]


EVIDENCE 36

Leading questions

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:

1. cross examination; 2. preliminary matters; 3. there is difficulty in getting direct and intelligible answers from a witness who is ignorant, or a child of tender years15, or is of feeble mind, or a deaf-mute;

4. unwilling or hostile witness16; or 5. 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

SEC. 20. Leading questions.— The court may allow leading questions in all stages of examination of a child if the same will further the interests of justice. Misleading questions

SEC. 10. Leading and misleading questions.—A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. It is not allowed.(5a, 6a, and 8a)

15 See Rule on Examination of Child Witness. 16 Note R25.6 written interrogatories: Unless thereafter allowed by the court for good cause shown to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal.


EVIDENCE 37

Impeachment of witness

SEC. 11. Impeachment of adverse party's17 witness.— A witness may be impeached by the party against whom he was called, by 1. Contradictory evidence 2. General reputation for truth, honesty, or integrity is bad 3. Prior inconsistent statement18

A witness may not be impeached 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.(15) Party may not impeach own witness

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

SEC. 12. Party may not impeach his own witness.— witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his 1. adverse interest, 2. unjustified reluctance to testify, or 3. his having misled the party into calling him to the witness stand.

17 Not “adverse party witness” 18 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,

1. the statements must be related to him, with the circumstances of the times and places and the persons present, and

2. he must be asked whether he made such statements, and if so, allowed to explain them.

3. If the statements be in writing they must be shown to the witness before any question is put to him concerning them.(16)


EVIDENCE 38

How to impeach hostile witness

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.19 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. (6a, 7a) Good character evidence

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)

Exclusion of other 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.(18)

19 She contends that the examination of respondent as adverse witness did not make him her witness and she is not bound by his testimony. That the witness is the adverse party does not necessarily mean that the calling party will not be bound by the former’s testimony. The fact remains that it was at his instance that his adversary was put on the witness stand. Unlike an ordinary witness, the calling party may impeach an adverse witness in all respects as if he had been called by the adverse party, except by evidence of bad character. Under the rule permitting the impeachment of an adverse witness, although the calling party does not vouch for the veracity of the testimony of the witness, he is nonetheless bound by the testimony if it is not contradicted or rebutted. A party who calls his adversary as a witness is, therefore, not bound by the latter’s testimony only in the sense that he may contradict him. [Gaw v. Suy Ben Chua, 2008]


EVIDENCE 39

Reference to memorandum

SEC. 16. When witness may refer to memorandum.—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 he knew that the same was correctly written or recorded; 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. So, also, a witness may testify from such a 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.(10a) 1996 Bar Q

X states on direct examination that he once knew the facts being asked but he cannot recall them now. When handed a written record of the facts he testifies that the facts are correctly stated, but that he has never seen the writing before. Is the writing admissible as past recollection recorded? Explain. SUGGESTED ANSWER: No, because for the written record to be admissible as past recollection recorded. It must have been written or recorded by X 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 he knew that the same was correctly written or recorded. (Sec. 16 of Rule 132) But in this case X has never seen the writing before. Part of transaction, writing, record given in evidence

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


EVIDENCE 40

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.(11a)

Right to inspect writing shown to witness

SEC. 18. Right to inspect writing shown to witness.—Whenever a writing is shown to a witness, it may be inspected by the adverse party.(9a)


EVIDENCE 41

Classes of documents

SEC. 19. Classes of documents.—For the purpose of their presentation in evidence, documents are either public or private. PUBLIC DOCUMENTS

P Public records, kept in the Philippines, of private documents required by law to be entered therein20

A Documents Acknowledged before a notary public except last wills and testaments

W 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

PRIVATE DOCUMENTS: All other writings are private.(20a)21

20 The public document does not refer to the private document itself but to the public record of that private document

. 21 It is well-settled that Church registries of births, marriages, and deaths

made subsequent to the promulgation of General Orders No. 68 amd the passage of Act No. 190 are no longer public writings, nor are they kept by duly authorized public officials. They are private writings and their authenticity must therefore be proved as are all other private writings in accorance with the rules of evidence. [Llemos v. Llemos, 2007]


EVIDENCE 42

Public documents as evidence

SEC. 23. Public documents as evidence.—

Documents consisting of records made in the performance of a duty of a public officer

prima facie evidence of the facts therein stated

All others evidence, even against a third person, of

1. the fact which gave rise to their execution and

2. of the date of the latter.

Irremovability of public record

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.(27a)


EVIDENCE 43

Proof of public documents

Public records, kept in the Philippines, of private documents required by law to be entered therein

1. original record; or 2. a copy thereof, attested22 by the legal

custodian of the record, with an appropriate certificate that such officer has the custody.

Documents Acknowledged before a notary public except last wills and testaments23

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

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

1. an official publication thereof; or 2. copy attested by the officer having the legal

custody of the record24

22 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.(26a)

23 Sec. 3, Rule 5, REE—A document electronically notarized in accordance with the rules promulgated by the Supreme Court shall be considered as a public document and proved as a notarial document under the Rules of Court

24 TAKE NOTE OF THE FOLLOWING:

� If the record is not kept in the Philippines Accompanied, with a certificate that such officer has the custody.

� If the office in which the record is kept is in a 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


EVIDENCE 44

1997 Bar Q

How do you prove a written foreign law?

SUGGESTED ANSWER: A written foreign law may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or 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 a 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. 24, Rule 132, Zalamea v. CA, 228 SCRA 23).

Proof of lack of record

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 officeaccompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry.(29)

2003 Bar Q

X was charged with robbery. On the strength of a warrant of arrest issued by the court, X was arrested by police operatives. They seized from his person a handgun. A charge for illegal possession of firearm was also filed against him. In a press conference called by the police, X admitted that he had robbed the victim of jewelry valued at P500, 000.00. The robbery and illegal possession of firearm cases were tried jointly. The prosecution presented in evidence a newspaper clipping of the report to the reporter who was present during the press conference stating that X admitted the robbery. It likewise presented a certification of the PNP Firearms and Explosive Office attesting that the accused had no license to carry any firearm. The certifying officer,


EVIDENCE 45

however, was not presented as a witness. Is the certification of the PNP Firearm and Explosive Office without the certifying officer testifying on it admissible in evidence against X? SUGGESTED ANSWER: Yes, the certification is admissible in evidence against X because 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. 28 of Rule 132).

Impeachment of judicial record

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 c. fraud in the party offering the record, in respect to the proceedings

Proof of private documents

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. anyone who saw the document executed or written; or b. 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. Ancient documents

SEC. 21. When evidence of authenticity of private document not necessary.—No other evidence of its authenticity need be given in case of ancient documents—


EVIDENCE 46

1. private document which is more than thirty years old 2. produced from a custody in which it would naturally be found if genuine

3. unblemished by any alterations or circumstances of suspicion

Genuineness of handwriting

SEC. 22. How genuineness of handwriting proved.— 1. May be proven by any witness who believes it to be the handwriting of a person because:

� he has seen the person write; or � he has seen writing purporting to be the person’s upon which he has acted or has been charged; and has thus acquired knowledge of the handwriting of such person

2. by a comparison made by the witness or the court with writings � admitted or treated as genuine by the party against whom the document is offered

� or proved to be genuine to the satisfaction of the judge R130.50: The opinion of a witness for which proper basis is given may be received in evidence regarding: a handwriting which he has sufficient familiarity

Alterations

SEC. 31. Alterations 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. If he fails to do that, the document shall not be admissible in evidence. How to account for alteration: 1. alteration was made by another without his concurrence 2. alteration was made with the consent of the parties affected by it

3. alteration was properly or innocently made


EVIDENCE 47

4. alteration did not in any way change the meaning or language of the instrument

Documents in an unofficial language

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.(34a)25 Proof of private electronic document

Rule 5, REE, Sec. 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.26

25 Where such document, not so accompanied with a translation in English of Filipino, is offered in evidence and not objected to, either by the parties or the court, it must be presumed that the language in which the document is written is understood by all, and the document is admissible in evidence. [Heirs of Dormonio v. Heirs of Doronio, 2007pp]

26 Aznar claims that his testimony complies with par. (c), i.e., it constitutes the "other evidence showing integrity and reliability of Exh. "G" to the satisfaction of the judge." The Court is not convinced. Aznar’s testimony that the person from Ingtan Agency merely handed him the computer print-out and that he thereafter asked said person to sign the same cannot be considered as sufficient to show said print-out’s integrity and reliability. As correctly pointed out by Judge Marcos in his May 29, 1998 Decision, Exh. "G" does not show on its face that it was issued by Ingtan Agency as Aznar merely mentioned in passing how he was able to secure the print-out from the agency; Aznar also failed to show the specific


EVIDENCE 48

Offer of evidence

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.(35)27 When to make offer

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's testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in writing. (n) 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 therefor shall become reasonably apparent. An offer of evidence in writing shall be objected to within three (3) days after notice of the offer unless a different period is allowed by the court. In any case, the grounds for the objections must be specified. (36a)

business address of the source of the computer print-out because while the name of Ingtan Agency was mentioned by Aznar, its business address was not reflected in the print-out. Indeed, Aznar failed to demonstrate how the information reflected on the print-out was generated and how the said information could be relied upon as true. [Aznar v. Citibank, G.R. No. 170491, 16 April 2009] 27 Note exceptions laid down in Vda. de Onate v. Court of Appeals [1995]


EVIDENCE 49

Continuing objection

SEC.37. When repetition of objection unnecessary.—When it becomes reasonably apparent in the course of the examination of a witness that the questions 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.(37a) Ruling

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.(38a) Striking out answer

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.(n)

Tender of excluded evidence


EVIDENCE 50

SEC. 40. Tender of excluded evidence.—If documents or things offered in evidence are excluded by the court, the offeror may h ave the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the same and other personal circumstances of the witness and the substance of the proposed testimony.(n)

RULE 133: WEIGHT AND SUFFICIENCY OF EVIDENCE

EVIDENCE 51

Preponderance of evidence

SECTION 1. Preponderance of evidence, how determined.— In civil cases, the party having the 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 all the facts and circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.(1a)

Proof beyond reasonable doubt

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 as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.(2a)

Extrajudicial confession

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.(3)

Corpus delicti

ELEMENTS: 1. proof of occurrence of a certain event 2. some person’s criminal responsibility for the act

RULE 133: WEIGHT AND SUFFICIENCY OF EVIDENCE

EVIDENCE 52

NOTE: A judicial confession will support conviction without proof of corpus delicti independent of the judicial confession.

Circumstantial evidence

SEC.4. Circumstantial evidence, when sufficient.—Circumstantial

evidence is sufficient for conviction if: 1. There is more than one circumstance; 2. The facts from which the inferences are derived are proven; and

3. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.(5)

Substantial evidence

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.(n) Preponderance of evidence

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.(6)

Evidence on motion

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 depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.(7)

ELECTRONIC EVIDENCE

EVIDENCE 53

RULES ON ELECTRONIC EVIDENCE RULE 1

COVERAGE SECTION 1. Scope. – Unless otherwise provided herein, these Rules shall apply whenever an electronic document or electronic data message, as defined in Rule 2 hereof, is offered or used in evidence. SEC. 2. Cases covered. – These Rules shall apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases.

SEC. 3. Application of other rules on evidence. – In all matters not specifically covered by these Rules, the Rules of Court and pertinent provisions of statutes containing rules on evidence shall apply.

RULE 2 DEFINITION OF TERMS AND CONSTRUCTION

SECTION 1. Definition of Terms. – For purposes of these

Rules, the following terms are defined, as follows: (a) “Asymmetric or public cryptosystem” means a system capable of generating a secure key pair, consisting of a private key for creating a digital signature, and a public key for verifying the digital signature.

(b) Business records ” include records of any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit, or for legitimate or illegitimate purposes.

(c) Certificate" means an electronic document issued to support a digital signature which purports to confirm the identity or other significant characteristics of the person who holds a particular key pair.

ELECTRONIC EVIDENCE

EVIDENCE 54

(d) “Computer” refers to any single or interconnected device or apparatus, which, by electronic, electro-mechanical or magnetic impulse, or by other means with the same function, can receive, record, transmit, store, process, correlate, analyze, project, retrieve and/or produce information, data, text, graphics, figures, voice, video, symbols or other modes of expression or perform any one or more of these functions.

(e) “Digital Signature” refers to an electronic signature consisting of a transformation of an electronic document or an electronic data message using an asymmetric or public cryptosystem such that a person having the initial untransformed electronic document and the signer’s public key can accurately determine:

(i) whether the transformation was created using the private key that corresponds to the signer’s public key; and,

(ii) whether the initial electronic document had been altered after the transformation was made.

(f) “Digitally signed” refers to an electronic document or electronic data message bearing a digital signature verified by the public key listed in a certificate.

(g) “Electronic data message” refers to information generated, sent, received or stored by electronic, optical or similar means.

(h) “Electronic document” refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or 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 and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these

ELECTRONIC EVIDENCE

EVIDENCE 55

Rules, the term “electronic document” may be used interchangeably with “electronic data message”.28

28 As rightly pointed out in defendant Wallem’s Reply to the Comment of Plaintiff, the Xerox copies do not constitute the electronic evidence defined in Section 1 of Rule 2 of the Rules on Electronic Evidence. The information in those Xerox or photocopies was not received, recorded, retrieved or produced electronically. Moreover, such electronic evidence must be authenticated (Sections 1 and 2, Rule 5, Rules on Electronic Evidence), which the plaintiff failed to do. Finally, the required Affidavit to prove the admissibility and evidentiary weight of the alleged electronic evidence (Sec. 1, Rule 9, Ibid) was not executed, much less presented in evidence. An "electronic document" refers to information or the representation of information, data, figures, symbols or other models of written expression, described or however represented, by which a right is established or an obligation extinguished, or 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 and any printout, readable by sight or other means which accurately reflects the electronic data message or electronic document. The rules use the word "information" to define an electronic document received, recorded, transmitted, stored, processed, retrieved or produced electronically. This would suggest that an electronic document is relevant only in terms of the information contained therein, similar to any other document which is presented in evidence as proof of its contents. However, what differentiates an electronic document from a paper-based document is the manner by which the information is processed; clearly, the information contained in an electronic document is received, recorded, transmitted, stored, processed, retrieved or produced electronically. A perusal of the information contained in the photocopies submitted by petitioner will reveal that not all of the contents therein, such as the signatures of the persons who purportedly signed the documents, may be recorded or produced electronically. By no stretch of the imagination can a person’s signature affixed manually be considered as information electronically received, recorded, transmitted, stored, processed, retrieved or produced. Hence, the argument of petitioner that since these paper printouts were produced through an electronic process, then these photocopies are electronic documents as defined in the Rules on Electronic Evidence is obviously an erroneous, if not preposterous, interpretation of the law. Having thus declared that the offered photocopies are not tantamount to electronic documents, it is consequential that the same may not be considered as the functional equivalent of their original as decreed in the law. [NPC v. Codilla, G.R. No. 170491, 3 April 2007]

ELECTRONIC EVIDENCE

EVIDENCE 56

(i) “Electronic key” refers to a secret code which secures and defends sensitive information that crosses over public channels into a form decipherable only with a matching electronic key.

(j) “Electronic signature” refers to any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedure employed or adopted by a person and executed or adopted by such person with the intention of authenticating, signing or approving an electronic data message or electronic document. For purposes of these Rules, an electronic signature includes digital signatures.

(k) “Ephemeral electronic communication” refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained.

(l) “Information and Communication System” refers to a system for generating, sending, receiving, storing or otherwise processing electronic data messages or electronic documents and includes the computer system or other similar devices by or in which data are recorded or stored and any procedure related to the recording or storage of electronic data messages or electronic documents.

(m) “Key Pair” in an asymmetric cryptosystem refers to the private key and its mathematically related public key such that the latter can verify the digital signature that the former creates.

(n) “Private Key” refers to the key of a key pair used to create a digital signature.

(o) “Public Key” refers to the key of a key pair used to verify a digital signature.

ELECTRONIC EVIDENCE

EVIDENCE 57

SEC. 2. Construction. – These Rules shall be liberally construed to assist the parties in obtaining a just, expeditious, and inexpensive determination of cases.

The interpretation of these Rules shall also take into consideration the international origin of Republic Act No. 8792, otherwise known as the Electronic Commerce Act.

RULE 3

ELECTRONIC DOCUMENTS SECTION 1. Electronic Documents as functional equivalent of paper-based documents. – Whenever a rule of evidence refers to the term writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules.

SEC. 2. Admissibility. – An electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these Rules.

SEC. 3. Privileged communication. – The confidential character

of a privileged communication is not lost solely on the ground that it is in the form of an electronic document.

ELECTRONIC EVIDENCE

EVIDENCE 58

RULE 4 BEST EVIDENCE RULE

SECTION 1. Original of an Electronic Document. – An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately.29

SEC. 2. Copies as equivalent of the originals. – When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original, such

29 Petitioner contends that the photocopies of the pro forma invoices presented by respondent Ssangyong to prove the perfection of their supposed contract of sale are inadmissible in evidence and do not fall within the ambit of R.A. No. 8792, because the law merely admits as the best evidence the original fax transmittal. On the other hand, respondent posits that, from a reading of the law and the Rules on Electronic Evidence, the original facsimile transmittal of the pro forma invoice is admissible in evidence since it is an electronic document and, therefore, the best evidence under the law and the Rules. Respondent further claims that the photocopies of these fax transmittals (specificallyST2-POSTS0401-1 and ST2-POSTS0401-2) are admissible under the Rules on Evidence because the respondent sufficiently explained the non-production of the original fax transmittals. We conclude that the terms "electronic data message" and "electronic document," as defined under the Electronic Commerce Act of 2000, do not include a facsimile transmission. Accordingly, a facsimile transmission cannot be considered as electronic evidence. It is not the functional equivalent of an original under the Best Evidence Rule and is not admissible as electronic evidence. Since a facsimile transmission is not an "electronic data message" or an "electronic document," and cannot be considered as electronic evidence by the Court, with greater reason is a photocopy of such a fax transmission not electronic evidence. In the present case, therefore, Pro Forma Invoice Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2 (Exhibits "E" and "F"), which are mere photocopies of the original fax transmittals, are not electronic evidence, contrary to the position of both the trial and the appellate courts. [MCC v. Ssangyong, G.R. No. 170633, 17 October 2007.

ELECTRONIC EVIDENCE

EVIDENCE 59

copies or duplicates shall be regarded as the equivalent of the original. Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if:

(a) a genuine question is raised as to the authenticity of the original; or

(b) in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original.

RULE 5

AUTHENTICATION OF ELECTRONIC DOCUMENTS 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 in this Rule.

SEC. 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.30

30 Aznar claims that his testimony complies with par. (c), i.e., it constitutes the "other evidence showing integrity and reliability of Exh. "G" to the satisfaction of the judge." The Court is not convinced. Aznar’s testimony that the person from Ingtan Agency merely handed him the computer print-out and that he thereafter asked said person to sign the same cannot be considered as sufficient to show said print-out’s integrity and reliability. As correctly pointed out by Judge Marcos

ELECTRONIC EVIDENCE

EVIDENCE 60

SEC. 3. Proof of electronically notarized document. – A

document electronically notarized in accordance with the rules promulgated by the Supreme Court shall be considered as a public document and proved as a notarial document under the Rules of Court.31

RULE 6

ELECTRONIC SIGNATURES

SECTION 1. Electronic signature. – An electronic signature or a digital signature authenticated in the manner prescribed hereunder is admissible in evidence as the functional equivalent of the signature of a person on a written document.

SEC. 2. Authentication of electronic signatures. – An

electronic signature may be authenticated in any of the following manner:

(a) By evidence that a method or process was utilized to establish a digital signature and verify the same;

(b) By any other means provided by law; or (c) By any other means satisfactory to the judge as establishing the genuineness of the electronic signature.

in his May 29, 1998 Decision, Exh. "G" does not show on its face that it was issued by Ingtan Agency as Aznar merely mentioned in passing how he was able to secure the print-out from the agency; Aznar also failed to show the specific business address of the source of the computer print-out because while the name of Ingtan Agency was mentioned by Aznar, its business address was not reflected in the print-out. Indeed, Aznar failed to demonstrate how the information reflected on the print-out was generated and how the said information could be relied upon as true. [Aznar v. Citibank, G.R. No. 170491, 16 April 2009] 31 Sec. 30, Rule 132

ELECTRONIC EVIDENCE

EVIDENCE 61

SEC. 3. Disputable presumptions relating to electronic signatures. – Upon the authentication of an electronic signature, it shall be presumed that:

(a) The electronic signature is that of the person to whom it correlates;

(b) The electronic signature was affixed by that person with the intention of authenticating or approving the electronic document to which it is related or to indicate such person’s consent to the transaction embodied therein; and

(c) The methods or processes utilized to affix or verify the electronic signature operated without error or fault.

SEC. 4. Disputable presumptions relating to digital signatures.

– Upon the authentication of a digital signature, it shall be presumed, in addition to those mentioned in the immediately preceding section, that:

(a) The information contained in a certificate is correct; (b) The digital signature was created during the operational period of a certificate;

(c) No cause exists to render a certificate invalid or revocable;

(d) The message associated with a digital signature has not been altered from the time it was signed; and,

(e) A certificate had been issued by the certification authority indicated therein.

RULE 7

EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS

SECTION 1. Factors for assessing evidentiary weight. – In assessing the evidentiary weight of an electronic document, the following factors may be considered:

ELECTRONIC EVIDENCE

EVIDENCE 62

(a) The reliability of the manner or method in which it was

generated, stored or communicated, including but not limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic data message or document, in the light of all the circumstances as well as any relevant agreement;

(b) The reliability of the manner in which its originator was

identified;

(c) The integrity of the information and communication system in which it is recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors;

(d) The familiarity of the witness or the person who made

the entry with the communication and information system; (e) The nature and quality of the information which went into

the communication and information system upon which the electronic data message or electronic document was based; or

(f) Other factors which the court may consider as affecting

the accuracy or integrity of the electronic document or electronic data message.

SEC. 2. Integrity of an information and communication

system. – In any dispute involving the integrity of the information and communication system in which an electronic document or electronic data message is recorded or stored, the court may consider, among others, the following factors:

(a) Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system;

ELECTRONIC EVIDENCE

EVIDENCE 63

(b) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it; or

(c) Whether the electronic document was recorded or stored

in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it.

ELECTRONIC EVIDENCE

EVIDENCE 64

RULE 8 BUSINESS RECORDS AS EXCEPTION

TO THE HEARSAY RULE

SECTION 1. Inapplicability of the hearsay rule. – A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule on hearsay evidence.

SEC. 2. Overcoming the presumption. – The presumption provided for in Section 1 of this Rule may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof.

ELECTRONIC EVIDENCE

EVIDENCE 65

RULE 9 METHOD OF PROOF

SECTION 1. Affidavit evidence. – All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein. SEC. 2. Cross-examination of deponent. – The affiant shall be made to affirm the contents of the affidavit in open court and may be cross-examined as a matter of right by the adverse party.

RULE 10

EXAMINATION OF WITNESSES SECTION 1. Electronic testimony. – After summarily hearing the parties pursuant to Rule 9 of these Rules, the court may authorize the presentation of testimonial evidence by electronic means. Before so authorizing, the court shall determine the necessity for such presentation and prescribe terms and conditions as may be necessary under the circumstances, including the protection of the rights of the parties and witnesses concerned.

SEC. 2. Transcript of electronic testimony. – When examination of a witness is done electronically, the entire proceedings, including the questions and answers, shall be transcribed by a stenographer, stenotypist or other recorder authorized for the purpose, who shall certify as correct the transcript done by him. The transcript should reflect the fact that the proceedings, either in whole or in part, had been electronically recorded. SEC. 3. Storage of electronic evidence. – The electronic evidence and recording thereof as well as the stenographic notes shall form part of the record of the case. Such transcript and recording shall be deemed prima facie evidence of such proceedings.

RULE 11

ELECTRONIC EVIDENCE

EVIDENCE 66

AUDIO, PHOTOGRAPHIC, VIDEO, AND EPHEMERAL EVIDENCE

SECTION 1. Audio, video and similar evidence. – Audio,

photographic and video evidence of events, acts or transactions shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof .

SEC.2. Ephemeral electronic communications. – Ephemeral

electronic communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted.

A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section.

If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 shall apply.

ELECTRONIC EVIDENCE

EVIDENCE 67

RULE 12 EFFECTIVITY

SECTION 1. Applicability to pending cases. – These Rules shall apply to cases pending after their effectivity. SEC. 2. Effectivity. – These Rules shall take effect on the first day of August 2001 following their publication before the 20th of July 2001 in two newspapers of general circulation in the Philippines