2016 Law On Evidence Tsn - First Exam.pdf

LAW ON EVIDENCE June 17, 2016 INTRODUCTION Law In its general sense, law is defined as the science of moral laws based on the rational nature of man, which governs his free activity for the realization of his individual and social ends, and which by its very nature is demandable and reciprocal. In its specific sense, it is a rule of conduct, just, obligatory, promulgated by legitimate authority, and of common observance and benefit. (Sanchez Roman) Branches of Law 1.

2.

Substantive Law – that branch of law that creates, defines, and regulates rights and duties concerning life, liberty, or property, the violation of which gives rise to a cause of action. Remedial, Procedural, or Adjective Law – that branch of law that prescribes the methods of enforcing those rights and obligations created by substantive law by providing a procedural system for obtaining redress for the invasion of rights and violations of duties, and by laying out rules as to how suits are filed, tried, and decided upon by the courts. (Bustos vs. Lucero)

Branches of Philippine Remedial Law 1.

Civil Procedure (Rules 1 - 56 of Rules of Court) – defines and regulates the remedies in private civil lawsuits.

2.

Provisional Remedies and Special Civil Actions (Rules 57 71) – provides for remedies which the parties may resort for the preservation or protection of their rights or interest, and for no other purpose, during the pendency of the principal action.

3.

Special Proceedings (Rules 72 - 109) – proceedings which aim to establish a status, a right, or a particular fact.

4.

Criminal Procedure (Rules 110 - 127) – provides for the methods prescribed by law for the apprehension and prosecution of persons accused of any criminal offense and for their punishment, in case of conviction.

5.

Evidence (Rules of 128 – 134) – provides for the means, of ascertaining in a judicial proceeding, a truth respecting a matter of fact.

based on the lectures of ATTY. JESS ESPEJO

The term “evidence” is susceptible of no other definition than that by which the law provides. Evidence is the means This means that evidence is a method, a manner by which you go about something. What is this something? What is its purpose? This is to ascertain in a judicial proceeding a truth respecting a matter of fact. Evidence is sanctioned by the Rules The Rules of Court provides for the guidelines and principles that one should remember when prosecuting a case in court. Example: A creditor wants to collect by way of an action for specific performance. But how does he prove it before the court? He must prove his claim by presenting evidence. Without evidence, you prove nothing, you win nothing. Rules of Court, not the sole repository of law on evidence Rules 127 – 133 of the Rules of Court deal with evidence. But the Rules of Court is not the sole repository of rules that can be considered evidentiary. When you say evidentiary rule, it is a rule that you use or follow that would limit your ability to prove or disprove something. Examples of evidentiary rules that can be found somewhere else 1.

Evidence of the agreement cannot be received without the writing. This is an example of an evidentiary requirement, although found in substantive law. 2.

Article 2199 (Actual Damages, Civil Code) – “Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages.” There are different types of damages under the law but actual damages would require proof of pecuniary loss, which is usually dispensed with in the form of receipts (best evidence of actual damages).

3.

Section 3 (2), Article 3 of the 1987 Constitution (Fruit of the Poisonous Tree Doctrine) – “Any evidence obtained in violation of this section (privacy of communication and correspondence) or the preceding section (right against unreasonable searches and seizures) shall be inadmissible for any purpose in any proceeding.”

4.

Article 114, paragraph 2 (Treason, Revised Penal Code) – “No person shall be convicted of treason unless on the testimony of two witnesses at least to the same overt act, or on confession of the accused in open court.” (Twowitness Rule)

RULE 128 – GENERAL PROVISIONS

Rule 128, Section 1. Evidence defined. – Evidence is the means, sanctioned by these Rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact.

Article 1403, paragraph 2 (Statute of Frauds, Civil Code) – enumerates the agreements that are unenforceable by action, unless the same, or some note or memorandum thereof be in writing, and subscribed by the party charged or his agent.

Going back to the definition of evidence: 3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.

LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

Ascertaining in a judicial proceeding

relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. (Rule 130, Section 1)

The term “judicial proceeding” tells you that the law on evidence is primarily applicable to courts and in judicial cases, not in administrative or quasi-judicial cases.

Whatever the court sees, smells, hears, touches, or tastes is object evidence.

Example: Before the Labor Arbiter, is there a requirement that you need to present a witness? An object or documentary evidence? There is none. This is dispensed with by filing of a position paper.

Example: This microphone can be used as a weapon to strangle someone. This can be object evidence because it is addressed to the senses of the court. It is the very thing that is considered the evidence.

ANG TIBAY VS CIR (1940)

What about if your evidence in court refers to an agreement or a letter between parties and such letter contains certain contractual concessions? This is what you call documentary evidence.

The Court of Industrial Relations is not narrowly constrained by technical rules of procedure, and the Commonwealth Act No. 103 requires it to "act according to justice and equity and substantial merits of the case, without regard to technicalities or legal forms and shall not be bound by any technicalities or legal forms and shall not be bound by any technical rules of legal evidence but may inform its mind in such manner as it may deem just and equitable."

2.

Documentary Evidence - Documents as evidence consists of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents. (Rule 130, Section 2)

The truth respecting a matter of fact Example: A contract denominated as a deed of sale. If you present that in court, what is your evidence? Is that the paper itself or is it what is written in the paper? Your evidence is what is written because documentary evidence must be offered as evidence of its contents. Not the physical attributes of the paper.

There are two types of fact in Civil Procedure: 1. Ultimate Facts (Factum Probandum) – are principal, determinate and constituted facts upon which the existence of the plaintiff’s cause of action or defendant’s defense rests; factum probandum are simply propositions; and 2. Evidentiary Facts (Factum Probans) – these are facts necessary for the determination of the ultimate facts. As in the law of pleadings, evidentiary facts are not supposed to be included. How do they differ? Ultimate facts represent propositions to be established and hence hypothetical whereas evidentiary facts would constitute the material in evidencing the proposition and hence existent. No ultimate fact will prove itself, evidentiary fact is required. Example: A debtor is liable to a creditor for P50,000. This is an ultimate fact that can appear in a pleading. It is hypothetical because it does not prove itself. An ultimate fact is something that needs to be proved. Now, what proves the fact of debt? A promissory note. Because a promissory notes evidences that there is a debt, it is an evidentiary fact, a factum probans. Truth Does the truth matter? In criminal, civil, or administrative case, sometimes, truth does not matter. What matters is what you prove or disprove. Knowledge on Rules of Evidence is important because sometimes, it would allow you, in a court of law, in a litigation, to dispense the truth. CLASSIFICATION OF EVIDENCE

3.

Demonstrative Evidence - Evidence in the form of objects such as maps, scale models, symbol, diagrams or objects that has, by themselves, no probative value but is used to illustrate and clarify a factual matter in issue or aid a testimony. What is relevant is not the object itself but the inference that can be drawn from such evidence. In other words, demonstrative evidence is used to illustrate or to explain something by way of a certain experimentation. Note that demonstrative evidence is not specifically mentioned in the Rules of Court. Nevertheless, its presentation is not prohibited. Example: A diagram of a place where a collision took place. A diagram is useful when you want to prove the position of the victim and the vehicle that bumped him at the time of the collision. Is the evidence the diagram? No. the evidence is the understanding that the court derives from the interpretation of your diagram. In demonstrative evidence, the court uses the same five senses in object evidence. But more importantly, the court applies intelligence to make analysis, draw conclusions, and inferences from the objects presented. What is important in documentary evidence is not the object but the information but the object creates. Summary

AS TO TYPE

If the evidence is the object itself, it is an object evidence.

1.

If the evidence is what is written and that is the fact in issue in the case, it is documentary evidence.

Object or Real Evidence – Objects as evidence are those addressed to the senses of the court. When an object is

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

If the evidence is in the form of an object or even in a document but what is important is not what is written but the understanding that the court derives from the appreciation of the object or document, it is demonstrative evidence. 4.

Example (1): “At the time of the collision, was the headlight of a motorcycle turned on?” Witness: “Yes”. By answering yes, it affirms the fact that the headlight of the motorcycle at the time of the collision is turned on.

Testimonial or Oral Evidence - oral or written assertion offered in court as a proof of the truth of what is being stated for as long the witness whose testimony is offered can perceive, and perceiving, or can make known his perception to others.

Example (2): “At the time of the collision, was the headlight of a motorcycle turned on?” Witness: “No”. Even if the answer is no, counched in a negative term, this does not mean that the evidence is negative. It is still a positive evidence because it affirms that a fact did not occur.

Examples: A.

B.

Written testimonial evidence – affidavit of loss, deposition

2.

Verbal testimonial evidence- what the witness says in an open court is an example of testimonial evidence.

Example (1): “At the time of the collision, was the headlight of a motorcycle turned on?” Witness: “I do not know.”

Hierarchy of Evidence PEOPLE VS LAVAPIE (2001) Greater credence is given to physical evidence as evidence of the highest order because it speaks more eloquently than a hundred witnesses. This is because object evidence is self-evident. GSIS vs CA Testimonial evidence is easy of fabrication and there is very little room for choice between testimonial evidence and documentary evidence. Generally, therefore, documentary evidence prevails over testimonial evidence.

Therefore, the hierarchy is: 1. Object (self-evident) 2. Documentary (at least it has been reduced into writing) 3. Testimonial (the most prone to fabrication) Note: Demonstrative evidence is not part of the hierarchy since such type of evidence is not specifically mentioned in the Rules of Court. Atty Espejo: For me, testimonial evidence is the most important. Going back to our example earlier where a microphone is used as a weapon for strangulation, the object cannot testify for itself. You cannot place it in a witness stand. My point is, despite the testimonial evidence being the weakest in our judicial system in terms of hierarchy, it is important because all types of evidence must, in a sense, be sponsored by a witness. AS TO WHETHER EVIDENCE AFFIRMS OR NEGATES 1.

Positive evidence – when a witness affirms that a fact occurred or did not occur (yes or no);

Negative evidence – when the witness avers that he did not see or know the occurrence of a fact (did not know or see). The witness cannot confirm nor deny.

Example (2): Alibi means “elsewhere” (neither confirming nor denying) 3.

Pregnant Denial/ Negative Pregnant – It is a combination of positive and negative evidence because by affirming a fact, you are actually denying something else. You are qualifying by your affirmation something that is part of the question. Example (1): “Did you meet the accused on January 1 and January 10?” Witness: “I met the accused on January 1.” This is negative pregnant because the witness only affirmed that he met the accused on January 1. But he is not saying anything whether he met the accused on January 10. He is affirming the meeting on January 1, but he is denying by not saying anything about January 10. Example (2): “Have you ever smoked marijuana?” Accused: “I have never smoked marijuana in school.” This is negative pregnant because although he is saying that he has never smoked marijuana in school, the implication is he smokes marijuana elsewhere.

Between positive evidence and negative evidence, which one prevails? Positive evidence. PEOPLE VS MACALABA We have time and again ruled that mere denial cannot prevail over the positive testimony of a witness. A mere denial, just like alibi, is a self-serving negative evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters. As between a categorical testimony

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

that rings of truth on one hand, and a bare denial on the other, the former is generally held to prevail.

Is the fact that X is an Olympic Gold medalist in shooting material to the fact in issue? In other words, does it directly prove that X killed the victim?

Basic postulate: Between alibi and positive identification of a witness, positive identification of a witness prevails.

Again, when is evidence material? When it tends to prove the fact in issue. In this case, it is not material.

AS TO MATERIALITY 1.

Material evidence – Evidence is material when it tends to prove the fact in issue in a case.

Now, the next question is, is it relevant? Does the fact that X is an Olympic Gold medalist in shooting tend to establish the probability that he was the one who shot the victim? It does. Therefore, while it is immaterial, it is relevant.

How do you determine a fact in issue? By examining the pleadings (when the issues are already joined).

There is a big difference between materiality and relevancy.

An issue arises when the parties have conflicting versions of the facts. Example: Collection case. The creditor’s material evidence is a promissory note which proves the indebtedness. As for the debtor, his material evidence to prove that his debt has already been paid is a receipt.

Material Evidence Evidence is offered to prove or disprove a fact in issue. Direct proof

2.

Immaterial evidence – Evidence is immaterial when it does not tend to prove the fact in issue in a case. Example: Collection case. Is the gun of the debtor material in determining whether or not he has paid? Of course, not.

Self-evident Material evidence is ALWAYS relevant.

AS TO COMPETENCY OR ADMISSIBILITY 1.

2.

Competent evidence – Evidence is not excluded by law or the Rules of Court. Inadmissible evidence – Evidence is deemed inadmissible because it is excluded by law or the Rules of Court. Note: We do not use “incompetent” to describe inadmissible evidence because it has a different context under the law. Incompetency does not necessarily relate to evidence. Example: Fruit of a Poisonous Tree (Exclusionary Rule)

AS TO RELEVANCY 1.

Relevant evidence – Evidence which has a tendency in reason to establish a probability or improbability of the fact in issue. Relevant evidence, therefore, is one which tends to prove or disprove a material fact. Example of Dean Inigo: There was a shooting of a person. The circumstances of the shooting are quite peculiar in that he was shot from a very long distance and right between his eyes. During the trial of X, the accused, the prosecutor presented evidence trying to prove that X was a former Olympic gold medalist in shooting, a sharpshooter.

Relevant Evidence Evidence has the tendency in reason to establish the probability or the improbability of the fact in issue. May either be direct or circumstantial May require reasoning and inference Relevant evidence is not always material.

June 22, 2016 REVIEW Relevant evidence is evidence which has tendency in reason to establish a probability or improbability of the fact in issue. Remember, it is the fact in issue and not the issue. There is a big difference between an issue and a fact in issue. Meaning, a fact that has a bearing in the resolution of a case. Irrelevant evidence, on the other hand, is evidence that is totally unrelated to the fact in issue. Evidence is material when it has the tendency to prove the facts in issue in the case. It is directly related, directly material to the fact in issue in the case. Example: in a case for collection of a debt. What would be material evidence to support the claim of the plaintiff here? Remember that when it is a case for collection of a debt, the issue would more or less be WON the defendant has an obligation to pay to the plaintiff. What would be material there would be, say, a promissory note because it evidences the obligation that is yet to be paid. Immaterial evidence, on the other hand, is evidence which really does not tend to prove the fact in issue. It is unrelated. In other words, it is inadmissible for that reason. In a collection for a debt, let’s say you present an evidence which is not relevant, not material to the fact in issue.

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LAW ON EVIDENCE We also distinguished materiality and relevancy. When we talk of materiality, evidence is material when it is offered to prove or disprove a specific fact in issue - to say whether a fact in issue is true or false. Whereas, relevancy talks about the tendency in reason to establish the improbability or probability of the fact in issue. Materiality, therefore, relates to whether a piece of evidence is a direct proof of a fact. When you talk about relevancy, it can either be directly or circumstantially relevant to the fact in issue. What is circumstantially relevant evidence? It is in Rule 128, Section 4. Rule 128, Section 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. When you talk about collateral matters, you are talking about circumstantially relevant evidence. As to materiality, remember that material evidence is self-evident. In other words, when you look at a particular piece of evidence, there is no need to draw inferences from the evidence. What you see is what you get. An example would be testimony directly identifying and implicating the accused in a crime. You’re an eyewitness to the crime of rape. That eyewitness account is material evidence. It is self-evident. What you see is your evidence. Whereas relevancy may sometimes require reasoning or inference. It may not necessarily and directly prove the fact in issue. But it is related to the fact in issue making the court accept it because it has probative value. An example would be, somebody was stabbed. But nobody saw the perpetrator do the stabbing. But certain evidence was left at the scene of the crime. A knife, for example, which the police investigators assumed to be the murder weapon. The weapon usedin the stabbing assuming na wala namatay. So if let’s say X has a knife does it necessarily mean that he is the culprit because he owns a knife? No. Not necessarily so. You have to allot more inferences in order to put one and one together. Naa pay logical process na kinahanglan. Remember that material evidence is always relevant. Whereas relevant evidence is not always material. AS TO THE NEED TO INFER OR PRESUME Direct Evidence Direct evidence is proof that if belief establishes the truth or falsity of the fact in issue and does not arise from a presumption.

Circumstantial Evidence Circumstantial evidence is evidence not bearing directly on the fact in dispute but on various attendant circumstances from which the judge might infer the occurrence of a fact in dispute.

based on the lectures of ATTY. JESS ESPEJO

Direct evidence. Prove the fact or point in issue as distinguished from circumstantial proof. Direct evidence is proof that if belief establishes the truth or falsity of the fact in issue and does not arise from a presumption. Example: assume that we’re in a court of law and you’re the audience there. I have an eyewitness. One of you, the lawyer, directly examined the witness. The question is, ‘Who killed the victim?’ The answer of the witness is, ‘The accused.’ ‘Why do you know that?’ ‘Because I saw him kill the victim.’ That is direct evidence. Do you need to presume from it? No. The witness is directly stating that it is the accused that killed the victim. If the judge believes the testimony of the accused, then it already establishes the truth that it is the accused that killed the victim. Circumstantial evidence. It is evidence not bearing directly on the fact in dispute but on various attendant circumstances from which the judge might infer the occurrence of a fact in dispute. Let’s go back to the example. There’s a witness in a crime of murder. And at the witness stand, the prosecution asked the witness who killed the victim. The witness answered, ‘It’s the accused.’ ‘Why do you know that?’ The witness answered, ‘At the time of the shooting, I saw him running away from the scene of the crime.’ ‘What else did you observed, if any?’‘The accused held a gun and his shirt was splattered with blood.’ With that testimony, without inferring anything or analyzing his testimony, will that establish the guilt of the accused? Will that point directly to the culpability of the accused? That he was the one who shot the victim? The answer is no. Did the witness say that he saw the accused shot the victim? No. But the circumstances related by the witness tend to prove that the accused has some xxx in time. Why would he run? Why was he holding a gun? Why was there blood splatters on his shirt? So it does not directly prove but if you put one and one together, you get two. In the case of People vs. Ramos, the SC defined direct and circumstantial evidence. People vs. Ramos (January 18, 1995) Evidence is either direct or circumstantial. Direct evidence is that evidece which proves a fact in issue directly without any reasoning or inferences being drawn on the part of the factfinder. Circumstantial evidence is that evidence which indirectly proves a fact in issue. The factfinder must draw an inference or reason from circumstantial evidence. Under our Rules of Court, conviction based on circumstantial evidence is sufficient if: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. It ought to be noted that our rules "make no distinction between direct evidence of a fact and evidence of circumstances from which the existence of a fact may be inferred. No greater degree of certainty is required when the evidence is circumstantial than when

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LAW ON EVIDENCE it is direct, for in either case, the trier of fact must be convinced beyond a reasonable doubt of the guilt of the accused." There can be conviction based on circumstantial evidence, even if there is no direct evidence on the fact in issue, provided there is more than one circumstance, facts from which the inferences are derived are proven, and the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. It ought not to matter whether the evidence is direct or circumstantial. A conviction can still be produced. Case: X was murdered. Y, his neighbor and brother in law, was the suspect. My client is the accused. X and Y had a public long standing grudge. The public saw them having many altercations. Y was even reputed to be a gun for hire in the community. However, when X was killed, there were no eyewitnesses to the shooting. Y was accused of the crime. The prosecution’s evidence consisted in testimony offered to prove that the accused was at the vicinity when the crime was committed. They were at their barangay. My client, Y, allegedly was in the barangay were the victim was shot. Second, there’s also testimony to the effect that a person wearing a helmet with the accused’s same height, same built was seen fleeing on a motorcycle away from the scene of the crime. There was also testimony offered to prove the animosity, the altercations, the bad blood between X and Y. What was my defense? Simple. Alibi. It could not have been my client because at the time of the commission of the offense, he was in an entirely different municipality. He could not have been the one who shot him because that municipality was 45 minutes away from the scene of the crime. We presented witnesses placing the accused elsewhere than at the scene of the crime. Naa sya diri sa among barrio kay pyesta man gud to, nag inom inom mi ato, nagkanta kanta mig videoke. With the facts I already told you, let’s analyze. What’s the first piece of evidence? Testimony that the accused was at the vicinity and that a person matching the accused’s description was seen fleeing from the scene of the crime. What’s the purpose of the prosecution in presenting evidence to that effect? That a person of similar height and built was seen fleeing from the scene of the crime on a motorcycle, when in fact nobody saw the face of that person. The prosecution wanted to establish opportunity. Opportunity, meaning, Y, if that person were Y, had the opportunity to shoot, to commit the crime. What about the testimony that Y and the victim had history of animosity? That they were really, really mortal enemies despite the fact that they were brothers in law. What’s the purpose? To establish motive. So you have motive and opportunity, you now have probable cause. Those two things, evidence with respect to the motive and to the opportunity, are they direct evidence? No. Are they material to the fact in issue? No. Do they directly prove the fact in issue? No. What’s the fact in issue? WON Y killed the victim. Does that directly prove the fact in issue? No. Nobody saw exactly that Y shot the victim. That is not material, not direct evidence. But were those testimonies offered by the prosecution to establish motive and opportunity, were they admitted by the court? Yes. Despite the fact that if you

based on the lectures of ATTY. JESS ESPEJO

look at it, not direct evidence, they are even immaterial to the fact in issue. They may have been immaterial but they were still relevant. The motive and the opportunity were collateral matters. They were collateral matters or circumstantial evidence on the fact in issue. Although they do not tend to prove the fact in issue directly, they have a tendency in reason to establish the probability or improbability of the fact in issue. And that made them admissible evidence. Did I win the case? Yes. What was my evidence? Alibi. I presented 3 witnesses. Nag inom, nag videoke, 45 minutes away from the scene of the crime. That is an inherently weak defense. It’s a negative evidence. Remember that negative evidence will always be overthrown by positive or affirmative evidence. Did they have affirmative evidence? No. Nobody saw my client shoot the victim. To make the long story short, my client was acquitted, free into the world, probably to kill again. Not all the time na negative imong evidence, let’s say alibi, that it’s a weak defense. Not necessarily. Dili na sya automatic na pildi na dayon ka becausealibi imong evidence. Dili pud automatic na pildi na pud ka kay circumstantial tanan imong evidence. AS TO ORIGINALITY Primary or Best Evidence Evidence which the law regards as effecting the greatest certainty of the fact in issue

Secondary Evidence Inferior or substitutionary evidence or evidence which itself indicates the existence of a more original source of information

Primary or best evidence. You want to prove that you are entitled to damages. What’s the best evidence? The original copy of your receipts. Kung nahospital ka, present your medical bill. That’s the best evidence of actual damages in the form of hospitalization bills as evidence. Secondary evidence. Example: a photocopy of a receipt. A mere photocopy. It means that there’s an original. Take note that in Rule 130, Section 3, we will be discussing the so called Best Evidence Rule. The original document must be produced subject to certain exceptions. Take note that in a case, naay ginatawag na evidence in chief, the main evidence. And you also have supporting evidence. TYPES OF SUPPORTING EVIDENCE Cumulative Evidence Additional evidence of the same kind and character as that already given and tends to prove the same proposition

Corroborative Evidence Additional evidence of a different kind and character tending to prove the same point but different types of evidence

Cumulative evidence. In other words, you want to place the accused in the scene of the crime and so you got 10 witnesses, all saying that on this day and at this time, the accused was there. That’s

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

cumulative evidence. Evidence of the same kind. Testimonial evidence. They are trying to testify to the same basic facts.

acceptance of the gift was innocent. That it was not in furtherance of any bribery purposes.

Corroborative evidence. This is deemed necessary only when there are reasons to suspect that the witness did not tell the truth or that his observation had been xxx. Example: Stephen Julian was caught shoplifting at NCCC Mall. What would probably be evidence that would prove that? Object evidence could be CCTV footage. Testimonial evidence would be eyewitness testimony na nangawat sya didto ug lipstick kay gihatag sa uyab. They are different types of evidence but they tend to prove the same point. That’s corroborative evidence.

Another is BP 22. The presumption or evidence of knowledge of insufficient funds. Remember that you’re given a certain number of days after notice of dishonor to make good of the check, to deposit enough funds. Upon notice of dishonor, that will now give rise to the prima facie evidence that you have knowledge of the insufficiency of funds or something to that effect.

People vs. Ayupan (February 13, 2002) It is well-settled that the testimony of a lone witness -- if found by the trial court to be positive, categorical and credible -- is sufficient to support a conviction. This is so, especially if the testimony bore the earmarks of truth and sincerity and was delivered spontaneously, naturally and in a straightforward manner. Corroborative evidence is necessary only when there are reasons to suspect that the witness bent the truth, or that his or her observation was inaccurate. Evidence is assessed in terms of quality, not quantity. It is to be weighed, not counted. Therefore, it is not uncommon to reach a conclusion of guilt on the basis of the testimony of a lone witness. It does not matter how many pieces of evidence you produce. What matters is that you’re able to introduce and present evidence in court that the court actually can use. Example: In a crime of rape, usually that happens in private. Nobody is supposed to see because that would defeat the clandestine purpose of what the person wants to do. Nobody usually sees that. So most prosecutions of crime of rape is made by just presenting one witness, main witness, the victim herself. And then later on, you can present a medico legal officer to testify as to the biological samples left in the body of the victim. Can you convict the accused by just the testimony of one witness, the victim herself? Yes. If the court believes the testimony of the victim, there’s no requirement as to the number of witness you’re supposed to present. One could be enough under certain circumstances. AS TO CONTROVERSION Prima Facie Evidence Evidence that is sufficient to establish a fact and if not rebutted, becomes conclusive of that fact

Rebutting Evidence Given by a party in a case to explain, repel, counteract or disprove facts given by evidence on the other side

Conclusive Evidence Evidence which incontrovertible

is

Prima facie evidence. Example: In bribery cases, the acceptance of the gift is not per se illegal but it becomes prima facie evidence of bribery. And what is the effect when there is that prima facie evidence? It shifts the burden to the defendant to prove that the

Rebutting evidence. This is more particularly applied to that evidence given by the plaintiff to explain or repel the evidence given by the defendant. Example: in a collection case, the evidence of the plaintiff is a promissory note. What is possible rebutting evidence? Receipt that you have already paid it. Or you are in possession of the PN. That gives rise to the presumption that the obligation has been paid. Conclusive evidence. That is to say, either not open or not able to be questioned as where it is said that a thing is conclusively proved. It means that such result follows from the facts shown as the only one that is possible. Example: What are the different ages of criminal responsibility? What age would exempt you from criminal responsibility? If you are below 9 years old, that is the age of complete criminal irresponsibility. Meaning, even if you’re 7 years old, you commit a crime, you’re exempt and no questions asked. But if you are between 9 and 15 years of age, you need to remember that the law distinguishes. The law distinguishes whether the crime was committed with or without discernment. Let’s say, you’re 10 years old, like my daughter. She commits a crime. The law will therefore determine whether or not the child acted with discernment in order to exempt him or her from criminal responsibility. Why is it that below 9 years, the law does not even ask WON there was discernment? Because age, in that situation, is conclusive evidence of lack of discernment. The law conclusively presumes that a child below 9 years of age is incapable of discernment. *talks about his 6year old son* In the case of Jarco Marketing vs. CA(1999), the SC said that a child below 9 years of age is incapable of contributory negligence. That is already conclusive evidence. Jarco Marketing vs. CA (1999) In our jurisdiction, a person under nine years of age is conclusively presumed to have acted without discernment, and is, on that account, exempt from criminal liability. The same presumption and a like exemption from criminal liability obtains in a case of a person over nine and under fifteen years of age, unless it is shown that he has acted with discernment. Since negligence may be a felony and a quasi-delict and required discernment as a condition of liability, either criminal or civil, a child under nine years of age is, by analogy, conclusively presumed to be incapable of negligence; and that the presumption of lack of discernment or incapacity for negligence in

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LAW ON EVIDENCE the case of a child over nine but under fifteen years of age is a rebuttable one, under our law. The rule, therefore, is that a child under nine years of age must be conclusively presumed incapable of contributory negligence as a matter of law. AS TO THE TENOR OF TESTIMONY Character/Reputation Evidence Opinion Evidence

Expert Evidence

Ordinary Evidence

Evidence attesting to one’s character and moral standing in the community Evidence of what the witness thinks, believes, or infers in regard to facts in dispute as distinguished from personal knowledge or facts themselves Consists in the opinion of a witness of a matter requiring special knowledge, skill, experience or training which he is shown to possess Consists in the testimony of a witness who testifies to those facts which he knows of his personal knowledge which are derived from his own perception

Character/reputation evidence. Generally, the character is regarded as illegally irrelevant in determining a case. Let’s suppose A was being accused of physical injuries. He allegedly assaulted B. And so A for his defense, he wanted to present people who would attest that he is not a troublesome individual, that he is peace loving. Is that relevant to the fact in issue? Not really. It is irrelevant to the question of WON he assaulted B. What about B? Can he present evidence that A was really a troublemaker? Generally, no. Because it is irrelevant in determining WON A assaulted B. Let’s assume a different role. That the character or reputation of a person is relevant in a court of law in a particular case. What will happen? All cases will become simply popularity contests. Di na lang ta magkaso. Opinion evidence. Evidence of what the witness thinks, believes, or infers in regard to facts in dispute as distinguished from personal knowledge or facts themselves. Remember that the Rules on Evidence, as a general rule, does not permit opinion evidence. For example, there’s a witness called by the prosecution. Question was “Do you think the accused killed the victim?” “I don’t think so.” “Okay, witness is excused.” Prosecution calls another witness. “Do you think the accused killed the victim?” “No, I don’t think so.” That’s opinion. What you think, what you believe is actually irrelevant in court. There’s only one opinion that matters in court as a general rule and that is the opinion of the judge. There is only one admissible opinion evidence in court. And that is expert evidence. Expert evidence. It consists in the opinion of a witness of a matter requiring special knowledge, skill, experience or training which he is shown to possess. This is under Rule 130, Section 49.

based on the lectures of ATTY. JESS ESPEJO

Example: Let us suppose you are a patient. And then you go to the hospital, you have been scheduled for appendectomy. It’s the removal of your appendix kay basin mubuto na sa sulod. Example, nag-ambak ambak ka paghuman nimo ug kaon. Naappendicitis ka. So you’re now scheduled in the hospital. *blah blah* But when you came out, you had a vasectomy. What does that prove? What case is that? In Torts and Damages, we call that Medical Malpractice, Medical Negligence. The treatment was supposed to be one for appendectomy but there was a deviation of the standard of care and the usual standards of the medical profession that you came out more injured than when you came in. That’s medical negligence. How do you prove that? You need to have expert opinion evidence in the form of another doctor saying,“These are the standards of the medical profession and by the facts of the case, it’s my opinion that the attending surgeon there deviated from those standards and therefore, was medically negligent.” That is expert opinion. That’s admissible in that situation. Majority of evidence would not be character/reputation evidence, opinion evidence, or expert evidence. It’s usually ordinary evidence. Ordinary evidence. This consists in the testimony of a witness who testifies to those facts which he knows of his personal knowledge which are derived from his own perception. When you say perception, it’s what the witness sees, hears, smells, tastes or touches. It’s the use of the senses. Now what if your testimony – because ordinary evidence is testimonial evidence – relates to something which somebody else simply told you? Ingon in X na si Y and nagpatay kay Z. That’s hearsay evidence or those evidence that are not derived from the personal knowledge of the witness. That is under Rule 130, Section 36. AS TO THE SOURCE OF EVIDENCE Intrinsic evidence Information necessary for the determination of an issue that is gleamed from the provisions of the document itself

Extrinsic evidence Evidence form a source outside the subject document

Intrinsic evidence. It is information necessary for the determination of an issue that is gleamed from the provisions of the document itself. There’s an issue but the resolution of the issue can be derived from the document itself. Example (intrinsic ambiguity that can be cured by the document itself): In a will, it says I bequeathed to my nephew John a car or a white car. It turns out daghan syag nephew na John. John 1, John 2, so on and so forth. Kinsa mukuha ana karon? Can you present external evidence specifically saying that ang ginamean sa testator is John 1 and not John 2? You can’t, generally. Because that would now be extrinsic evidence, which is not allowed to cure the intrinsic ambiguity. Extrinsic evidence or evidence aliunde or parol evidence. Refers to evidence form a source outside the subject document. As provided under Rule 130, Section 9, “When the terms of an agreement have

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LAW ON EVIDENCE been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors-in-interest, no evidence of such terms other than the contents of the written agreement.” Example: A and B entered into a contract. Daghan kaayog conditions, stipulations. So when they reduced their agreement into writing, that is supposed to contain everything else and everything not stated in writing is deemed waived. Can you say that the Ten Commandment written in stone is actually eleven? I don’t think you can say that. Ten gani, kay napulo man gyud na. Anything that you claim is that eleventh or the twelfth commandment, that is already parol evidence. You’re not allowed to add. Same thing with contracts. When you reduced your contract into writing, you should write all your stipulations. Anything not included, waived. What if the other contracting party says, “Actually we agreed that the period for payment is extended to two years. I’m not supposed to make any payment until two years from now.” Would that be allowed? Can he present testimony saying that the terms for payment is actually extended two years more? He can’t, under the Parol Evidence Rule. As a general rule, he can’t. Now, word play ta. We already encountered two words that began with “ali”. Alibi and Aliunde. Alibi means another place. Aliunde means another source. Let’s relate this to Civil Procedure. When you implead defendants in your complaint, you need to state all the names of the defendants. But later on, pwede na nimo ishortcut. Let’s say, you have six defendants. Maja vs. X, Y, Z, A, B, C. But you can shortcut that. You can say, Maja vs. X, et. al. What does “al” mean? It’s a general term to mean another person. *blah blah* (Basically, “al” = another.) Rule 128, Section 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. The same in all courts First the law says, “the same in all courts.” When you say “all courts”, it means all subordinate courts. We’re talking about the Municipal Trial Courts, Regional Trial Courts, and Court of Appeals. But not the Supreme Court. Because the SC is not a trier of facts. You don’t present evidence and witnesses before the SC. You merely make arguments before the SC. Therefore, you cannot use the rules on evidence before the SC. All trials and hearings What about “all trials and hearings”? The applicability of the rules of evidence shall be the same whether it is a criminal case or civil case. You’re prosecuting a case under civil procedure, apply the rules of evidence. Or a case under criminal procedure, apply the rules of evidence. So it binds everything together. Except as otherwise provided by law or these rules

based on the lectures of ATTY. JESS ESPEJO

There are some laws or rules that apply a different evidentiary standard. An example would be under Section 24, Rules of Civil Procedure. BP 129, Section 24. Special Rules of Procedure. – Whenever a Regional Trial Court takes cognizance of juvenile and domestic relation cases and/or agrarian cases, the special rules of procedure applicable under present laws to such cases shall continue to be applied, unless subsequently amended by law or by rules of court promulgated by the Supreme Court. It may be a court type case but the Rules of Evidence applied is modified. For example, under regular rules, you may hear in court this statement: “Objection, Your Honor, leading question.” A leading question is one that suggests to the witness the answer which the proponent wants to hear. How do you testify in court without talking about Judicial Affidavit Rule? Testimony is one question, answered by one fact. “What is your name?” You answer your name. “How old are you?” You answer how old you are. That is not leading. Who, what, when, where, how, and why. These are questions that are designed to elicit specific facts. That’s the proper way of asking questions in court. What about, “Your name is Maja, isn’t it?” Your answer will be yes or no. “You’re 30 years old, aren’t you?” Yes or no. “You’re pretty aren’t you?” Of course! These are questions where, who’s actually testifying? It’s actually the proponent who’s testifying. And all that he’s asking the witness to do is to affirm or deny the question. That is a leading question and is not allowed in court. “You killed the victim, didn’t you? Yes or no?” You are not allowed to do that, except in cross-examination. The general rule is leading questions are not allowed. But in AM 004-07-SC, you are allowed to ask leading questions to a child witness. Say, for example, a child was a victim of sexual molestation. Would the child understand if you ask, in a lawyerly manner, the term ‘penetration’? Would the child understand that? Would the child even understand the term vagina or penis? They would normally use the terms, unsa man, tintin and other appellations that I will not repeat anymore (haha!). “What did he do next?” The child does not even understand sometimes. Like, what’s next? And so the proponent is allowed to ask questions like, “After that, did he take off his pants?” So that is allowed because of Section 2. The law provides that with respect to child witnesses, it is subject to different rules. Agrarian cases, also. Naay rules of procedure ang Department of Agararian Reform and Adjudication. Also, the rules on summary procedure where affidavits take the place of testimonies. Before magpresent gyud kag witness but in the rulesof summary procedure, you can pray to the court that the affidavit of the witness be taken as his direct examination but subject to cross examination. Another is the rules of procedure for small claims cases which is heard by a small claims courts, which is exclusively a municipal trial court. Do you present evidence in small claims cases? You don’t. You don’t even use pleadings. What you do is you fill up certain forms, submit it to the court and wait for it to be heard. Ingani kapaspas.

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LAW ON EVIDENCE You don’t make testimonies anymore. Then we have the judicial affidavit rule. What happens in the JAR? The usual way of examining a witness is different already. The rules of evidence on that regard do not apply anymore. Because direct testimony is supposed to be in the form of a judicial affidavit. So lahi-lahi na karon ang rules of evidence. Rule 128, Section 3. Admissibility of evidence. – Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. We’re talking about very important requirements here: (1) relevant to the issue, which deals with the term relevancy, and (2) not excluded by the law or these rules, which refers to competency of evidence.

based on the lectures of ATTY. JESS ESPEJO

civil case for collection, the ultimate fact is the debtor is indebted to the creditor. The debtor owes the creditor. And in order to prove your ultimate fact, you need to supply facti probans or evidentiary facts. How would you know that your evidentiary facts tend to establish the probability or improbability of your factum probandum? Common sense. To determine whether something is relevant to the fact in issue, that’s common sense. Example: Let’s assume that this is a crime scene. Somebody was killed. Let us also suppose that this sign pen was the murder weapon. Gidunggab, patay! Nobody saw anybody do the stabbing. Your evidence is that a knife (sign pen siguro) was left at the crime scene. There’s a finger print on the ballpen. And that fingerprint happened to belong to a person na itago nato sa pangalan na Matteo. His fingerprints were found therefore, Matteo killed the victim. Correct? Is that logical reasoning correct?

TWO REQUISITES FOR ADMISSIBILITY OF EVIDENCE 1. 2.

Relevancy. It is defined under Section 4. Competency. Not excluded by the law or these rules.

Rule 128, Section 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. Is it relevant? Does it advance inquiry into the fact in issue? If it does, you have already solved the question of relevancy. Let’s harken back to Dean Iñigo, who always mentions about the axioms propounded by Wigmore. He is a well-known authority and commentator in American law and jurisprudence. For him, there are two axioms. 1.

Axiom of Relevancy. Those facts with rational probative value are admissible.

2.

Axiom of Competency. All facts having a rational probative value are admissible unless prohibited by some specific rule. In our law, this is “not excluded by the law or these rules.” But if you really look at it, the two axioms put together make up our Section 3. 1. AXIOM OF RELEVANCY. Probative value means the tendency of evidence to make a fact of consequence more or less probable than it would be without evidence. Example: Somebody was shot right in between the eyes from a very far distance. X is being prosecuted for it. Prosecution presents evidence, testimony tending to prove that X was an Olympic medalist in long distance shooting. Is that material? No. It does not directly prove the fact in issue as WON the accused shot the victim. But is it relevant? Does it advance the inquiry? Does it make the fact in issue more or less probable? If the answer is in the affirmative, it becomes relevant and therefore admissible in a court. Remember that whatever the case you’re prosecuting, in order to win it, what do you need to prove? In the ultimate analysis, what do you need to prove? Your factum probandum or ultimate fact. In a

Okay, to make it easier, let’s just say that this is a knife. A knife was found at the scene of the crime. The knife had fingerprints and the fingerprints were those of Matteo. Therefore, Matteo killed the victim. Is that correct? No, there is something wrong there. What does it prove? It proves that the fingerprints of Matteo were found on the knife. It doesn’t prove anything. Is is material? No. Is it relevant? Yes, it advances the inquiry. Because if the suspect is Matteo and the fingerprints found on the knife were not Matteo’s, then maybe we can eliminate him from suspicion anymore and it no longer advances the inquiry on Matteo. But because it advances the inquiry, it is relevant. Now, what do you need to do in order to ascertain beyond reasonable doubt that the fingerprints were really from Matteo? Maybe go to the NBI. Maybe ask for fingerprint analysis. So you’re now talking about an expert witness. Then the expert witness will testify as to his qualifications, that he has knowledge about fingerprinting and he will testify also that there will be a match with the fingerprints found on the knife and the fingerprints of Matteo. Because an expert witness already proved that the fingerprints were Matteo’s, therefore, Matteo killed the victim. Correct? No, there’s something missing. But is it relevant? Yes. So do you even know if it was the knife that was used for killing the victim? So you need to know what is the cause of death. If it is the stabbing, how do you prove that? You bring the cadaver in court and then you show it? No. You ask a medico-legal expert to testify that that is the cause of death and by his examination, it was the knife that pierced the body of the victim. Therefore, Matteo killed the victim? Dili lang gihapon. So we know for sure that the knife was found at the scene of the crime, that in all probability that was the knife that was used to stab the victim and that knife, the stabbing, was also the cause of the death. And the knife belonged to Matteo because his fingerprints were found on the knife. Leading to an assumption that he might be the one who used the knife to stab somebody. What you’re actually doing here is just saying to the court what is plausible and what is implausible. If the evidence that you’re trying to present actually makes a matter of fact more plausible, it is relevant. And when it is relevant, it will be admitted by the court. So because it was admitted, you automatically win your case? No. Because admissibility is different from credibility of the evidence.

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LAW ON EVIDENCE When you talk about credibility, you’re talking about the believability of evidence. Mutuo ba ang huwes sa imohang gipresent na evidence? Kung mutuo, daug ka. Kung dili mutuo, pildi ka. What’s your recourse? Go to the chamber of the judge, bring some money, and I did not finish my sentence. Relevancy, again, would be determined by logic of common sense. It will determine WON you’re entitled to present evidence to advance the inquiry.

based on the lectures of ATTY. JESS ESPEJO

Honor, hearsay. That is excluded. Because evidence that is not based on the personal knowledge of the witness is inadmissible. In special laws, there is RA 4200. It is an act to prohibit and penalize wiretapping and other related violations of the privacy of communication and for other purposes. So if evidence is a result of wiretapping, it is inadmissible. What are the exceptions to this law? 1.

The conversation is not private. In the case of Navarro vs. CA (August 26, 1999), even if it is wiretapped, if the exchange that is recorded is actually intended to be public and not private, its tape recording is not prohibited. Let’s say in a rally during election, Duterte badmouthed Leila De Lima. Giingnan niya si De Lima, “Tambok ka! Tambok!” Somebody recorded that. And then De Lima filed a case for libel, even if it’s true (haha!). Can Duterte object that it is violative of the Anti-Wiretapping Law? No. That’s intended not to be private but public. That’s an exception.

2.

Also in RA 9372 (Human Security Act). In Section 7 thereof, if you are suspected of terrorism, police authorities are actually allowed to wiretap you. The only requirement of the law is to procure an ex-parte written order from the court. Ex-parte means without the participation or knowledge of the subject of the legal proceeding. Like, for example, ex-parte presentation of evidence as a result of default. The party declared in default will no longer participate. He cannot object, cannot present his own evidence to rebut the other’s evidence. So under the Human Security Act, if you’re suspected of terrorism, that’s what happens. You can be wiretapped and that would be admissible. To my mind, that’s not fair. Why? Because it would lead to profiling. Kana bitawng, if a certain person fits a particular person, if he looks like Osama Bin Laden, he’s already a terrorist. So you can wiretap him. They can inquire into his bank accounts. That’s wrong.

2. AXIOM OF COMPETENCY. All facts having a rational probative value are admissible unless prohibited by some specific rule. In Philippine law, if it is not excluded by the law or the rules, it is admissible. Examples: 1987 Constitution, Bill of Rights. 1.

2. 3.

Right of the people to be secure in their persons, papers, houses, effects, etc. against unreasonable searches and seizure Privacy of communication and correspondence Fruit of the poisonous tree. If evidence was illegally obtained, it cannot be presented in court.

In Civil Procedure, as well. Diba, denials have to specific? What’s the effect of a general denial? It is treated as an admission. How many pleadings are allowed by the rules? There are only 7. Most of the time, only 3 are used by practitioners – complaint, answer, reply. Is it mandatory for a party to file a complaint? Of course. It’s the filing of the complaint that sets the wheels of justice in motion. Without it, a court is passive. Is it mandatory for a defendant to file an answer? Of course. Because if he does not, he can be declared in default. What about the filing of a reply, is it mandatory? No. In fact, it is optional. Even if you do not file a reply, the rule is that all matters that are found in the answer are deemed to be automatically controverted without the necessity of filing a reply. That’s the GR. What’s the exception? When is it mandatory to file a reply? An exception is when the answer alleges an actionable document. Remember that an actionable document must be denied under oath. Otherwise, you are deemed to have admitted the genuineness and due execution of the actionable document. Now, suppose nagfile sya ug answer and nag-attach sya ug receipt. That’s an actionable document. It is the basis of a party’s cause of action or defense. You do not deny that under oath because you were unable to file a reply. Later on, you want to present testimony to the effect na katong iyahang resibo is forged. Can you? No. Because you will be presenting evidence that is contrary to your admission. Your admission is related to the genuineness and due execution of the receipt for not filing a reply. That is a rule of exclusion. Your evidence would have been competent and admissible in court. But by reason of the effects of Civil Procedure, you cannot present that type of evidence anymore. In Evidence, the most prominent rule on exclusion is hearsay. Giingon ni A man gud na si X ang nipatay kay Y. Objection, Your

I need you to read these cases for next meeting.   

People vs. Eugenio (1 Sep 2010) People vs. Macatinag (19 Jan 2009) People vs. Almorfe (29 Mar 2010)

These are cases regarding the chain of custody requirement. The purpose of this is to prevent planting of evidence. 90% of people who are prosecuted for violation of RA 9165 claim that they have been framed up. That is the response of the law – Section 21, chain of custody requirement. DIFFERENT TYPES OF ADMISSIBILITY Multiple Admissibility

Conditional Admissibility Curative Admissibility

When a fact is offered for one purpose, it is admissible insofar as it satisfies all rules applicable to it when offered for that purpose When evidence is admitted only in dependence upon some other facts A party has a right to introduce inadmissible evidence in his behalf where the court has admitted the same kind of evidence adduced by the adverse party

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LAW ON EVIDENCE Multiple admissibility of evidence. This means that when a fact is offered for one purpose, it is admissible insofar as it satisfies all rules applicable to it when offered for that purpose. Its failure to satisfy some other rule which would be applicable for it offered for another purpose does not exclude it. It simply means that an evidence admissible for one purpose can also be admissible for another purpose. Example: birth certificate. What does it attest to? When you were born. But does it also prove who your parents are? Yes. So that’s multiple admissibility. Another is a document. Can a document be offered to prove its contents? Yes. But can you also offer a document to prove its appearance, its physical condition? Yes. In that situation, it’s not offered as documentary evidence but as object evidence. Because you are talking of what you can see from the document. This has been asked in the Bar twice. Foremost of which is in 2005. The question was: May a private document be offered and admitted in evidence both as documentary and as object evidence? Explain. The answer is yes. Again, if it offered as proof of its contents, then it’s documentary. But if it is offered as something else other than the contents of the document, such as the physical condition, appearance of the document, then it’s considered an object evidence. Conditional admissibility of evidence. This means that evidence is admitted only in dependence upon some other facts. It is received of the expressed assurance of counsel when objection is manifested that the other facts would be duly presented at a suitable opportunity before the case is closed. So counsel here is saying that although his question is objectionable at this time, he will connect with some other facts which will make it admissible at the later time. Example: Counsel asks a question that is so out of this world, “How old are you?” And then we’re talking here about an accident case. Nakabangga kuno sya and he’s a witness. It seems that it is irrelevant. “How long have you been driving?” The answer is, “I’m already 30 years old and I’ve been driving for the last 12 years.” The judge now says, “What the hell are you talking about? You are not talking about the facts of the case, that’s the driving experience. Immaterial and irrelevant.” Counsel will say, “No, Your Honor. Allow us to show the relevance of this line of questioning later on.” Then the Judge allows. The counsel will ask the witness, “Mr. Witness, let me show you a copy of your birth certificate.” Sa iyang birth certificate, he’s not really 30 years old. This was the habit before. A lot of people want to drive early and so they falsify their records so they can obtain a license as early as when they’re already in high school. What is counsel trying to prove here? That his license is actually illegally obtained. And you can make a case that that is negligence per se. You’re driving with a license that is not reflective of the xxx. There’s a presumption in torts and damages to that effect. If you’re violating traffic regulations, such as the obtaining of a valid license, you are presumed to be prima facie negligent at the time of the accident. So that is what counsel is trying to prove but at the beginning, it may not have been relevant and material to the fact in issue.

based on the lectures of ATTY. JESS ESPEJO

Curative admissibility of evidence. This means that a party has a right to introduce inadmissible evidence in his behalf where the court has admitted the same kind of evidence adduced by the adverse party. So the adverse party was allowed to present inadmissible evidence and so you, to prevent manifest injustice, can also present the same incompetent evidence. Example: In a case I had before. It was subject to the rules of summary procedure. And you need to remember that in the rules of summary procedure, if you were not able to submit that affidavit, you cannot testify. That witness cannot testify. If you’re not able to present your document during the pre-trial conference, you cannot present it later on. But I just took over the case. And I found out that there are pieces of evidence that I needed to present to make my case more convincing but they were not previously marked and identified during pre-trial. Supposed to be not included and presented in court. That’s the rule of exclusion. But I persuaded the judge and was able to present it. What was I talking about? I’m talking about murag infringement bitaw. You’re selling substances, dili banned, chemicals that you’re claiming to be your own when it fact it was my client’s. How do you prove that? I showed my canister and compared it to the canisters of those that the defendant is selling. So gipakita nako na sa court. So that the court can appreciate that these are similar in composition. There’s unfair competition in this case. The judge allowed it even if I was not able to have it pre-marked during pre-trial. What would be the better thing to do for the judge? To also allow the adverse party to present similar inadmissible evidence to prevent manifest injustice. So the court allowed the adverse party to present evidence that was not previously marked during pre-trial. That’s curative admissibility.

July 8, 2016 Laws that would affect the admissibility (relevancy and competency) of evidence 1. RA 4200 (Anti Wire Tapping Law) - renders evidence that would normally be admissible as inadmissible. It is grounded upon privacy of persons protected under the constitution. Any exceptions to non-admissibility of wire-tapped conversation? a) When there is consent by two parties. SALCEDO CASE: Involves declaration of nullity of marriage. The husband instructed military operatives to wiretap conversation of his wife. The issue here is WON the wiretap conversation may be used as evidence to declare the marriage a nullity. SC declared that the wiretap was not admissible. b) It is not private. Even without consent is not covered by the anti-wiretapping law because there is no reservation of expectation of my privacy. Example, I shouted that I will kill Mateo... you can use that against me because I did not reserve an expectation to privacy.

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LAW ON EVIDENCE 2. Section 21 of RA 9165 (Comprehensive Dangerous Drugs Act) – talks about the custody requirement and confiscation of seized surrendered dangerous drugs, etc. Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; (2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination; (3) A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject item/s: Provided, That when the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however, That a final certification shall be issued on the completed forensic laboratory examination on the same within the next twenty-four (24) hours; (4) After the filing of the criminal case, the Court shall, within seventy-two (72) hours, conduct an ocular inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals, including the instruments/paraphernalia and/or laboratory equipment, and through the PDEA shall within twenty-four (24) hours thereafter proceed with the destruction or burning of the same, in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the DOJ, civil society groups and any elected public official. The Board shall draw up the guidelines on the manner of proper disposition and destruction of such item/s which shall be borne by the offender: Provided, That those item/s of lawful commerce, as determined by the Board, shall be donated, used or recycled for legitimate purposes:

based on the lectures of ATTY. JESS ESPEJO

Provided, further, That a representative sample, duly weighed and recorded is retained; (5) The Board shall then issue a sworn certification as to the fact of destruction or burning of the subject item/s which, together with the representative sample/s in the custody of the PDEA, shall be submitted to the court having jurisdiction over the case. In all instances, the representative sample/s shall be kept to a minimum quantity as determined by the Board; (6) The alleged offender or his/her representative or counsel shall be allowed to personally observe all of the above proceedings and his/her presence shall not constitute an admission of guilt. In case the said offender or accused refuses or fails to appoint a representative after due notice in writing to the accused or his/her counsel within seventy-two (72) hours before the actual burning or destruction of the evidence in question, the Secretary of Justice shall appoint a member of the public attorney's office to represent the former; (7) After the promulgation and judgment in the criminal case wherein the representative sample/s was presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the case and, in turn, shall request the court for leave to turn over the said representative sample/s to the PDEA for proper disposition and destruction within twenty-four (24) hours from receipt of the same; and (8) Transitory Provision: a) Within twenty-four (24) hours from the effectivity of this Act, dangerous drugs defined herein which are presently in possession of law enforcement agencies shall, with leave of court, be burned or destroyed, in the presence of representatives of the Court, DOJ, Department of Health (DOH) and the accused/and or his/her counsel, and, b) Pending the organization of the PDEA, the custody, disposition, and burning or destruction of seized/surrendered dangerous drugs provided under this Section shall be implemented by the DOH. So imagine a situation where there is a buy bust operation. There’s a poseur-buyer who goes to the drug pusher and then proposes to buy. So dakpon tong pusher. What will happen to the drugs? There was a big problem before because of that constant defense that people accused in drug cases, evidence has been planted. So under Sec 21, it gives you the chain of custody requirement with respect to seized dangerous drugs and other paraphernalia. So according to Sec 21, there is a requirement that immediately after seizure and confiscation, the apprehending team should physically inventory and photograph the same in the presence of the accused, the persons from whom such items were confiscated or his/her representative or counsel, a representative from the media, the DOJ and any elected public official who shall be required to sign the copy of the inventory and be given the copy thereof. There’s a lot of people who need to be involved in transferring custody of these drugs. So it’s very difficult to comply with it sometimes. Say for example you go to a place where there’s no available elected public official or no member of the media, so you cannot comply with it. So it becomes a problem. And then within

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LAW ON EVIDENCE 24 hours, the drugs shall be submitted to the PDEA Forensics Laboratory for quantitative and qualitative examination. After that, a certification of the examination results shall be issued within 24 hours after the receipt of the subject items. Remember that when there is forensic laboratory examination of dangerous drugs, you need to make a qualitative examination of the substance to determine what type of substance is it, if it is really a prohibited drug. Quantity is required because remember according to RA 9165, the quantity of the drugs seized from the suspect would have an effect on the penalty to be imposed upon the accused. And then after the filing of the criminal case, the court shall within 72 hours conduct an ocular inspection of the confiscated seized or surrendered dangerous drugs, etc. and thru the PDEA within 24 hours thereafter shall proceed with the destruction or burning of the dangerous drugs. So that’s the chain of custody requirement. Again what’s the reason for the chain of custody requirement: To ensure the integrity of the evidence. To ensure nga walay planting of evidence.

based on the lectures of ATTY. JESS ESPEJO

cannot by itself overcome the presumption of innocence or constitute guilt beyond reasonable doubt. And by that, the accused was acquitted. Take note of the requirement imposed by the SC in Alnorfe. If you failed to follow the chain of custody requirement under Sec 21, it’s NOT FATAL for as long as you are able to explain or account for the different links in the chain of custody. You have to afford a reasonable explanation why you were not able to follow the requirement of inventory, photograph, etc. Failure to account renders the regularity presumption enjoyed by public officers nugatory. So there is really no conflict among the three cases mentioned. Though noncompliance is not fatal, you still have to explain or account for every link in the chain of custody. So with that, we are done with Rule 128. Rule 129 provides for instances where proof can be dispensed with.

RULE 129 – WHAT NEED NOT BE PROVED Remember, the seized dangerous drugs shall not be kept. They must be destroyed under Sec 21. If you fail to comply with any of the links of chain of custody, would that produce the effect of inadmissibility? Would the drugs be inadmissible in evidence? PP VS EUGENIO (Sept 1, 2010) – SC said that noncompliance with Sec 21 RA 9165 is NOT FATAL as long as there are justifiable grounds therefore, as long as the integrity and the evidentiary value of the confiscated items are properly preserved by the investigating team. What is important is the preservation of the integrity and evidentiary value of the seized items as the same would determine the innocence or guilt of the accused. PP VS MACATINAG (Jan 19, 2009) – SC could not find any provision in law that would bring about the non-admissibility of the confiscated drugs due to noncompliance with Sec 21 RA 9165. But SC cautioned that when there is a noncompliance of Sec 21, while it may not affect the admissibility of evidence, it may however affect the weight or evidentiary probative value of the evidence. So the weight that must be given by the court on the evidence is dependent on the circumstances obtaining in each case. Hence, it does not affect admissibility but the believability of evidence.

Section 1. Judicial notice, when mandatory. — A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (1a) Section 2. Judicial notice, when discretionary. — A court may take judicial notice of matters which are of public knowledge, or are capable to unquestionable demonstration, or ought to be known to judges because of their judicial functions. (1a) Section 3. Judicial notice, when hearing necessary. — During the trial, the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon. After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case. (n)

PP VS ALMORFE (March 29, 2010) – After a buy bust operation, drugs in the possession of the accused were seized. However, the drugs were not physically inventoried and photographed in the presence of the accused. And because of that evidence, the accused was later on convicted.

Section 4. Judicial admissions. — An admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. (2a)

RULING: While a perfect chain of custody is almost always impossible to achieve, an unbroken chain becomes indispensable and essential in the prosecution of drug cases owing to its susceptibility tampering, contamination and even in substitution and change. Hence, every link must be accounted for. In fine, the prosecution failed to account for every link of the chain starting from its turnover by the accused to the investigator, and from the investigator to the chemist as for the presumption of regularity in the performance of official duty relied upon by the court, the same

Presumption What is the effect of presumption of innocence in the constitution? That the accused is presumed innocent until the contrary is proven. As far as the accused is concerned, he does not have to present any proof. He has to rely on the ability or inability of the prosecution to present proof that would rebut the presumption of evidence. If the prosecution fails to prove that, the accused is acquitted.

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LAW ON EVIDENCE Types of Presumption 1. Conclusive presumption – one which the law no longer allows to be rebutted. Example: A child below 9 years of age is conclusively presumed to be incapable of discernment. REPUBLIC VS LUZON STEVEDORING – there’s a tugboat and a bridge, nagbangga! Whose fault? The bridge is stationary, it does not move. So under the facts and circumstances, it must be the tugboat that hit the bridge. Doctrine enunciated in the said case: Presumption of Res Ipsa Loquitor (the thing speaks for itself). It applies when it is so improbable that the damage would not have arisen if it were not for the intervention of a particular person. The defendant usually has the full control of the instrumentality that caused the damage. Another instance of Res Ipsa Loquitor is when you go to the hospital for an appendectomy but you came out with a vasectomy. Who has control of the instrumentality that causes damage? The doctor, of course. It could not have been you. It gives rise to the presumption that the defendant (doctor) must be negligent. Remember, whoever alleges must be the one to present proof. If you are the prosecution, you have the burden of proving the accused’s guilt beyond reasonable doubt. If you are the plaintiff, you have the burden of proving the elements of your cause of action otherwise you render your cause of action to the remedy of demurrer to evidence. A demurrer to evidence is another way of saying a motion to dismiss. It’s just that the motion to dismiss is filed in the middle of the case after the plaintiff has presented his evidence in chief. So you fail to discharge the burden and therefore when the presumption applies, you don’t have the burden of proving anything yet. Applying the presumption of Res Ipso Loquitor, the defendant is presumed to be negligent. The plaintiff has nothing to prove yet. So the burden of proving evidence is shifted to the defendant to prove that he is not negligent. So compared to the matters within the realm of judicial notice and those subject to judicial admissions, what presumptions do will be to postpone the need of presenting evidence. But eventually you might have to still present evidence. But if the other party failed to discharge his burden, you (the person upon whom the presumption is established) will not have to present evidence because the former failed to discharge the burden. 2. Disputable presumption Judicial Admission With respect to judicial admissions, when a fact is already admitted by a party in court, you don’t have to prove it. When you make an admission, the effect is you are not allowed to contradict your admission anymore. Judicial Notice

based on the lectures of ATTY. JESS ESPEJO

Put differently, it is the assumption by a court of a fact without need of further traditional evidentiary support. The principle is based on convenience and expediency in securing and introducing evidence on matters which are not ordinarily capable of dispute and are not bona fide disputed. The foundation for judicial notice may be traced to the civil and canon law maxim, manifesta (or notoria) non indigent probatione (manifest things require no proof). The taking of judicial notice means that the court will dispense with the traditional form of presentation of evidence. In so doing, the court assumes that the matter is so notorious that it would not be disputed. Rationale for Judicial Notice 1. Expediency 2. Convenience The taking of the judicial notice is a matter of expediency and convenience for it fulfills the purpose that the evidence intended to achieve and in its sense, it is the equivalent of proof. PP VS ORULLETA? – SC said it would be superfluous, inconvenient and expensive to both parties in the court to require proof in the ordinary way of facts which are already known. Examples: Case is for murder. Accused pushed the victim from the th 30 floor of the building. Then the judge asked: when the A pushed B, did B fall? Of course, yes! The judge is supposed to take judicial notice of the law of nature including gravity. Sometimes it will lead to absurd results if we will not require judges to take judicial notice. A Filipino married to an American. The judge refused to take judicial notice of America coz he has not seen it. So the judge has to conduct ocular inspection of America. It will result to absurdity as he is supposed to take judicial notice of the existence and territorial extent of states. Rule 129. Section 1. Judicial notice, when mandatory. — A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (1a) Matters mentioned in Sec 1 are those of public common knowledge that’s why judges are expected to know them or take judicial notice of them. PAGDILAO VS RABANILLO REQUISITES OF JUDICIAL NOTICE (1) The matter must be one of common and general knowledge;

REPUBLIC VS SANDIGANBAYAN (Dec 16, 2011) – Judicial notice is the cognizance of certain facts that judges may properly take and act on without proof because these facts are already known to them.

(2) It must be well and authoritatively settled and not doubtful or uncertain; and

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LAW ON EVIDENCE (3) It must be known to be within the limits of jurisdiction of the court. The power of taking judicial notice is to be exercised by courts with caution. Care must be taken that the requisite notoriety exists and every reasonable doubt on the subject should be promptly resolved in the negative. As to the first requisite, the SC said in the case of SALUDO VS AMERICAN EXPRESS INTL (2006), concept of facts of common knowledge in the context of judicial notice has been explained as those facts that are so commonly known in the community as to make it unprofitable to require proof, and so certainly known to as to make it indisputable among reasonable men. Keyword is unprofitable to require proof. You gain nothing from requiring evidence of certain facts which are within the realm of public knowledge, and therefore within the realm of judicial notice. Types of Judicial Notice: 1. Mandatory – Sec 1 2. Discretionary – Sec 2 3. When hearing necessary – Sec 3 MANDATORY JUDICIAL NOTICE 1. The existence and territorial extent of states, their political history, forms of government and symbols of nationality For example, America. We know that there is a USA that exists. As to territorial extent, where is America located? So as to existence and territorial extent of states, their political history, forms of government and symbols of nationality, for purposes of convenience and expediency, judges should not be ignorant about these matters. They are expected to know and take judicial notice of them. 2. Law of Nations Under Article 2 Sec 2 of 1987 Constitution, the Philippines renounces war as an instrument of national policy and adopts the general accepted principles of international law as part of the law of the land, etc.. How do we adopt principles of international law as part of the law of the land? Under Public International Law: a) Doctrine of Transformation – treaties are converted into municipal law by implementing a similar statute.

based on the lectures of ATTY. JESS ESPEJO

According to international law authors, 2 standards are as follows: a) Wide-spread state practice which means that the states universally abhor an act like rape b) Opinio Juris which means you follow this act because you believe it is right; that is the psychological aspect of international law Take note that the term Law of Nations does not mean a law of a particular nation. I don’t care about the laws in China. It may or may not benefit me but I don’t care. I don’t know about it. Courts are not allowed to take judicial notice of the laws of a particular country. Therefore, existence of foreign law per se is not within the realm of mandatory judicial notice. Foreign laws actually present a question of fact. As a general rule, they may not be taken judicial notice of and have to be pleaded and proven as any matter of fact. How do you prove foreign law? 1. Written foreign law – Rule 132 sec 24 & 25, easier to prove than unwritten foreign law 2. Unwritten foreign law – Rule 130 Principles governing foreign law A foreign law may be admitted without proof if it is subject to a judicial admission (Sec 4, Rule 129). If the other party admits that a certain law exists, then there is that admission. But admission as to the existence of a foreign law would not mean admission as to its applicability to the case. It is for the judge to determine whether such foreign law is applicable or not. And in the absence of evidence, foreign law is presumed to be the same with that of the Philippine law (Processual Presumption). CONDON VS COMELEC (2012) - Here, the Maja is the winning vice mayoralty candidate of Caba, La Union. A petition for Quo Warranto was filed against her stating that she as a dual citizen, under RA 9225, must execute a sworn renunciation of her Australian citizenship. So the petitioner answered when she execute a renunciation of her Australian citizenship in Australia, she is deemed to have renounced her foreign citizenship. And she wanted the court to take judicial notice of the laws of Australia, which says that renunciation of her citizen under the laws of Australia is binding to the whole world. She also contended that her mere act of running for public office is a clear abandonment of her foreign citizenship. According to the Supreme Court, we do not take judicial notice of a foreign law such as the Australian Citizenship Act. It must be pleaded and proven as a matter of fact. A sworn renunciation of foreign citizenship is still required under RA 9225.

In the aftermath of the 9/11 attack, we have our own laws for the Anti Terrorism Act and Crimes against International Humanitarian Act. We transform that into domestic law.

3. Official acts of the legislative, executive and judicial departments of the Philippines

Another mode of transformation is when 2/3 of the Senate concurs.

With respect to statutes, all judges are presumed to know the law as to whether the law has been amended, repealed or reinstated.

b) Doctrine of Incorporation – such as in the incorporation clause in Sec 2 Article 2 of the 1987 Constitution. How do we determine that particular principle is treated as a generally accepted principle of international law? Naa ba nay standard? Like rape, is it universally good or bad? Is Genocide generally accepted in the realm of international law?

However, not all legislative acts are laws. For example in the case of: CHAVEZ VS PUBLIC ESTATE AUTHORITY (Nov. 11, 2003), a Senate investigation report is deemed covered by mandatory judicial notice because that is an official act of the legislative department. Congressional debates and other records that predicated the

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LAW ON EVIDENCE passage of the law are considered to be official acts of the legislative department and therefore within the realm of mandatory judicial notice. There are executive acts that are considered as laws. Executive orders and presidential decrees have the full force of law when they take authority from the legislative power directly granted to the executive or made pursuant to the valid legislative delegation granted to the president. Example is the Family Code (EO 292). PASEO VS LOPEZ (Aug 19, 1993) – SC discussed the matter whether the presidential issuance can be considered a law. SC said that to form part of the law of the land, a decree order or letter of instruction must be issued by the President in the exercise of his extraordinary power of legislation as contemplated in Section 6 of the 1976 Amendments of the Constitution. Not all decree order or letters of instruction by the President become part of the law of the land. SANAGA VS CA (April 17, 2001) – there are some official acts that can be considered within the realm of mandatory judicial notice. The action of an administrative agency in granting, denying or even suspending or revoking a license of franchise or certificate of public convenience is administrative or quasi-judicial. Decisions of the office of the president are official acts and those acts exercising quasi-judicial power by the executive department are within the realm of mandatory judicial notice which courts are mandatorily task to take judicial notice under Sec 1 of Rule 129. Judicial notice must be taken of the organization of the executive department, its principal officers, elected or appointed such as its president. REPUBLIC VS SOUTH SIDE HOMEOWNERS ASSOC, INC. (Sept 2006) – WON a land that is under a military reservation can be subject to an application for titling? In order for a parcel of land to be part of the alienable land of public domain, there has to be a declaration that the same is alienable and disposable. That’s the only time that you can apply for titling under PD 1529. However, SC said that application for titling (PD 1529), or the presidential decree providing for lands covered under military reservation is a matter cognizable by the court pursuant to Sec 1 Rule 129. Hence the same is within the realm of mandatory judicial notice. ASIAN TERMINALS VS MALAYAN INSURANCE (2011) (Judicial notice does not apply) Finally, petitioner implores us to take judicial notice of Section 7.01, Article VII of the Management Contract for cargo handling services it entered with the PPA, which limits petitioner’s liability to P5,000.00 per package. Unfortunately for the petitioner, it cannot avail of judicial notice. Sections 1 and 2 of Rule 129 of the Rules of Court provide that: SECTION 1. Judicial notice, when mandatory. — A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions.

based on the lectures of ATTY. JESS ESPEJO

SEC. 2. Judicial notice, when discretionary. — A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration or ought to be known to judges because of their judicial functions. The Management Contract entered into by petitioner and the PPA is clearly not among the matters which the courts can take judicial notice of. It cannot be considered an official act of the executive department. The PPA, which was created by virtue of Presidential Decree No. 857, as amended, is a government-owned and controlled corporation in charge of administering the ports in the country. Obviously, the PPA was only performing a proprietary function when it entered into a Management Contract with petitioner. As such, judicial notice cannot be applied. Power of Clemency The president has the power to pardon. sentences. He can suspend executions.

He can commute

Assume that a convict was later on pardoned. While he was pardoned, a policeman saw him and the police had knowledge that the said guy was a convict. So he’s going to arrest him and bring him to court for evasion of sentence. Our courts are obliged to take judicial notice of the fact that the said convict was already pardoned so that he would not be prosecuted anymore. But not all exercises of the president’s power of executive clemency are subject to mandatory judicial notice. Take note pardon is granted by the chief executive and as such it is a private act which must be pleaded in court by the person being pardoned because the court takes no judicial notice thereof. However, amnesty by proclamation of the chief executive with the concurrence of congress is a public act of which the courts should take judicial notice. Amnesty Subject to mandatory judicial notice Need not be pleaded

Pardon NOT subject to mandatory judicial notice Must be pleaded

Official Acts of the Judicial Department These refer mostly to decisions and cases. An example would be the Rules of Court. Courts should take judicial notice of the decisions rendered by the SC. Why take judicial notice of acts of judicial dept? Article 8 of the CC: Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. Can a court take judicial notice of a decision of CA? Or is it limited only to what the SC is saying? Decisions of lower courts are not given judicial notice. In prosecuting a case for trial, generally, courts are not authorized to take judicial notice of the contents of the records of other cases even when such cases are pending in the same court and notwithstanding that both cases may have been tried or are pending in the same judge. But this however admits certain exceptions. So

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LAW ON EVIDENCE there could be permissible judicial notice of records of lower courts. As a matter of convenience to all the parties, GR: A court cannot take judicial notice of records or decisions of a lower court unless the case is decided by the SC. From 2015 TSN: What else? Issuances by the Supreme Court such as Rules on Electronic Evidence issued by the Supreme Court or Rules on the procedure of environmental cases issued by the Supreme Court. Courts must take judicial notice of these matters. The decisions that pertain to mandatory judicial notice are only decisions of the Supreme Court. How do you prove a decision of the Court of Appeals or the lower courts? You have to give the court a copy, if they do not have a copy yet of the record or order of the lower court. Ok, Question 1: Can the court take judicial notice of matters pending in another case? Question 2: Can a court be allowed to take judicial notice of records in different courts for a purpose of a particular case? Can the judge say, “You don’t need to present evidence on that fact; that is already established in a case that I tried a year ago and I will take judicial notice that the owner of the gun is X.” Can the court do that? GR: the court cannot take judicial notice of the decisions of the coordinate courts not even the decision or the facts of a similar case tried by the same court. Even if the judge has personal knowledge, the court does not have personal knowledge thus the court cannot take judicial notice. It emphasizes the difference of a court and a judge. Diba sa Civil Procedure, you learned the difference of a court and a judge. So whatever is within the personal knowledge of the judge, being an officer of the court, does not equate to judicial notice. REPUBLIC VS CA (August 18, 1997), the Supreme Court said: A court will take judicial notice of its own acts and records in the same case, of facts established in prior proceedings in the same case, of the authenticity of its own records of another case between the same parties, of the files of related cases in the same court, and of public records on file in the same court. However, there is a qualification provided for by an earlier case: OCCIDENTAL LAND TRANSPO VS CA (1993): That there should be an absence of objection, meaning both parties agree, as a matter of convenience between two parties to treat the records of another case as read into the records. Those are the two requisites you need to remember: 1. absence of objection and 2. consent of the parties.

based on the lectures of ATTY. JESS ESPEJO

The oil companies assert that respondent judicially admitted that Ordinance No. 8027 was repealed by Ordinance No. 8119 in civil case no. 03-106379 (where Petron assailed the constitutionality of Ordinance No. 8027) when the parties in their joint motion to withdraw complaint and counterclaim stated that "the issue ...has been rendered moot and academic by virtue of the passage of [Ordinance No. 8119]." They contend that such admission worked as an estoppel against the respondent. Respondent countered that this stipulation simply meant that Petron was recognizing the validity and legality of Ordinance No. 8027 and that it had conceded the issue of said ordinance’s constitutionality, opting instead to question the validity of Ordinance No. 8119. The oil companies deny this and further argue that respondent, in his answer in civil case no. 06-115334 (where Chevron and Shell are asking for the nullification of Ordinance No. 8119), expressly stated that Ordinance No. 8119 replaced Ordinance No. 8027: ... Under Ordinance No. 8027, businesses whose uses are not in accord with the reclassification were given six months to cease [their] operation. Ordinance No. 8119, which in effect, replaced Ordinance [No.] 8027, merely took note of the time frame provided for in Ordinance No. 8119.... Ordinance No. 8119 thus provided for an even longer term, that is[,] seven years; Rule 129, Section 4 of the Rules of Court provides: Section 4. Judicial admissions. ― An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. While it is true that a party making a judicial admission cannot subsequently take a position contrary to or inconsistent with what was pleaded, the aforestated rule is not applicable here. Respondent made the statements regarding the ordinances in civil case nos. 03106379 and 06-115334 which are not "the same" as this case before us. To constitute a judicial admission, the admission must be made in the same case in which it is offered. Hence, respondent is not estopped from claiming that Ordinance No. 8119 did not supersede Ordinance No. 8027. On the contrary, it is the oil companies which should be considered estopped. They rely on the argument that Ordinance No. 8119 superseded Ordinance No. 8027 but, at the same time, also impugn its (8119’s) validity. We frown on the adoption of inconsistent positions and distrust any attempt at clever positioning under one or the other on the basis of what appears advantageous at the moment. Parties cannot take vacillating or contrary positions regarding the validity of a statute or ordinance. Nonetheless, we will look into the merits of the argument of implied repeal. When an ordinance is subject to judicial notice:

Ordinances Ordinances are not included in the enumeration of matters covered by mandatory judicial notice under Sec 1 Rule 129 of Rules of Court.

1. MTC: it is required to take judicial notice of the ordinances of the municipality or city where it sits.

SJS VS ATIENZA (2008)

RTC: must take judicial notice of ordinances only when required to do so by the statute.

The Rule On Judicial Admissions Is Not Applicable Against Respondent .

2. In the case of appeal before them, they should also take judicial notice.

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LAW ON EVIDENCE 3. When an ordinance is capable of unquestionable demonstration. But even when there is a statute requiring a court to take judicial notice of ordinances, a court is not required to take judicial notice of ordinances to which it does not have access. The party asking the court to take judicial notice of the ordinances is obligated to supply the court with the plain text of the rules which the party desires to be followed or applied for the court to take judicial notice of the said ordinances. Take note that the intent of the statute requiring the court to take judicial notice of a local ordinance is to remove any discretion that the court might have in determining WON to take judicial notice of an ordinance. The statute does not direct the court to act on its own in obtaining evidence for record and the party must make the ordinance available to the court for it to take notice of. So the party must procure a copy of an ordinance from the Sangguniang Panglusod and present the same to the court. 4. Laws of Nature The most celebrated use of the laws of nature in judicial notice is in a very old case in 1800s involving Abraham Lincoln. There is a brawl during one night and there is an eyewitness from afar of the assailant from a distance of 150 feet. You have to remember that during this time there were still no light posts or wide spread used of electricity. The crime was committed at 11 pm. Therefore, because of the poor visibility it makes the identification of the assailant from afar questionable. One witness said that he was able to see the assailant because of the light of the moon. What Abraham Lincoln did was take a farmer’ almanac ( a farmer’s almanac will tell you what would be the position of the moon at night) and prove that the moon has already set at 3 minutes before midnight and therefore visibility of the assailant would have been impossible. So the court took judicial notice that a setting moon will not cause illumination and that caused the accused’s acquittal.

based on the lectures of ATTY. JESS ESPEJO

When a court takes judicial notice that a city is a highly urbanized city, every barangay in the city would therefore be highly urbanized as well. Rule 129. Section 2. Judicial notice, when discretionary . – A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. It is discretionary because it depends solely on the judgment of the court unless the matter falls within Sec 1, no party can compel the judge to take judicial notice of the same. Judicial notice under Sec 2 cannot be compelled by Mandamus. MAGDALO PARA SA PAGBABAGO VS COMELEC (2012) FACTS: Magdalo filed an application for a Party-list registration with comelec for the May 10, 2010 national and local elections. Comelec denied the application. Comelec also took judicial notice of the fact that Magdalo was the one responsible for the Oakwood Mutiny. Magdalo contended that Comelec could not take judicial notice of those facts, that comelec committed grave abuse of discretion in denying their registration since it based not on reliable records of facts but on mere speculations. ISSUE: WON the Comelec can take judicial notice of the fact that Magdalo was responsible for the Oakwood Mutiny RULING: YES. Under the Rules of Court, judicial notice may be taken of matters that are of "public knowledge, or are capable of unquestionable demonstration." Further, Executive Order No. 292, otherwise known as the Revised Administrative Code, specifically empowers administrative agencies to admit and give probative value to evidence commonly acceptable by reasonably prudent men, and to take notice of judicially cognizable facts. Thus, in Saludo v. American Express, this Court explained as follows:

PEOPLE VS MENESES (1998) It was established that a crime took place in the wee hours in the morning before the crack of dawn at around 3 am. The court can take judicial notice of the laws of nature such as in this case that around 3 in the morning during the Christmas season, it is still quite dark and that daylight comes late during this time of the year. GABRIEL VS CA (2004) The testimony of the star witness was like this: “I stepped out to see what was going on. And then I heard the sound of two vehicles colliding with one another….and then I saw the vehicles colliding with one another.” In other words, the sound came before the actual collision. What is correct? The sound occurs immediately after the collision. The Supreme Court said that we have to take judicial notice of the laws of nature. If true, the Supreme Court said: “If true, this would rate as one of the greatest scientific revelations of all time. But since courts are obliged to take judicial notice of the laws of nature, this Court prefers to side with prudence.” So the Supreme Court can be sarcastic at times. 5. Geographical Divisions CHONGBIAN OLIVA VS REPUBLIC (2007)

The concept of "facts of common knowledge" in the context of judicial notice has been explained as those facts that are "so commonly known in the community as to make it unprofitable to require proof, and so certainly known x x x as to make it indisputable among reasonable men." This Court has, in a string of cases, already taken judicial notice of the factual circumstances surrounding the Oakwood standoff. The incident involved over 300 heavily armed military officers and enlisted men – led by the founding members of MAGDALO – who surreptitiously took over Oakwood in the wee hours of 27 July 2003. They disarmed the security guards and planted explosive devices around the building and within its vicinity. They aired their grievances against the administration of former President Gloria Macapagal-Arroyo (former President Arroyo), withdrew their support from the government, and called for her resignation, as well as that of her cabinet members and of the top officials of the Philippine National Police (PNP) and the Armed Forces of the Philippines (AFP). After the ensuing negotiations for these military agents to lay down their weapons, defuse the explosives and return to the barracks, the debacle came to a close at 11:00 p.m. on the same day. That the Oakwood incident was widely known and extensively covered by the media made it a proper subject of judicial notice.

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LAW ON EVIDENCE Thus, the COMELEC did not commit grave abuse of discretion when it treated these facts as public knowledge, and took cognizance thereof without requiring the introduction and reception of evidence thereon. In the present case, the Oakwood incident was one that was attended with violence which warranted comelec’s denial of Magdalo’s registration. However, in view of the subsequent amnesty granted in favor of the members of MAGDALO, the events that transpired during the Oakwood incident can no longer be interpreted as acts of violence in the context of the disqualifications from party registration. So it’s proper also for the comelec to take judicial notice of the fact that Magdalo were granted amnesty by PNoy for their acts in the past. It would no longer be considered as a disqualification for party-list registration. STATE PROSECUTORS VS. MURO (1994) FACTS: On August 13, 1992, respondent judge issued an Order dismissing eleven (11) cases:  Respondent Judge issued his Order solely on the basis of newspaper reports (August 11, 1992 issues of the Philippine Daily Inquirer and the Daily Globe) concerning the announcement on August 10, 1992 by the President of the Philippines of the lifting by the government of all foreign exchange restrictions and the arrival at such decision by the Monetary Board as per statement of Central Bank Governor Jose Cuisia ISSUE: W/N the Judge was correct in taking judicial notice of the supposed lifting of foreign exchange controls which appeared in a newspaper. RULING: NO  The doctrine of judicial notice rests on the wisdom and discretion of the courts. The power to take judicial notice is to be exercised by courts with caution; care must be taken that the requisite notoriety exists; and every reasonable doubt on the subject should be promptly resolved in the negative. Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. The provincial guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety.

based on the lectures of ATTY. JESS ESPEJO

known, the basis of his action. Judicial cognizance is taken only of those matters which are "commonly" known.  Things of "common knowledge," of which courts take judicial notice, may be matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person.  Respondent judge, in the guise of exercising discretion and onthe basis of a mere newspaper account which is sometimes even referred to as hearsay evidence twice removed, took judicial notice of the supposed lifting o foreign exchange controls, a matter which was not and cannot be considered of common knowledge or of general notoriety. Worse, he took cognizance of an administrative regulation which was not yet in force when the order of dismissal was issued. Jurisprudence dictates that judicial notice cannot be taken of a statute before it becomes effective. The reason is simple. A law which is not yet in force and hence, still inexistent, cannot be of common knowledge capable of ready and unquestionable demonstration, which is one of the requirements before a court can take judicial notice of a fact. Rule 129. Section 3. Judicial notice, when hearing necessary. During the trial, the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon. After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case. What is Judicial Notice? It is when the court accepts a fact as true without requiring proof. Whether it’s mandatory or discretionary, the court accepts a fact as true without requiring proof. When we talk about judicial notice, it’s actually repugnant to reception of evidence. Is it not a fact that judicial notice by its very nature dispenses with evidence and therefore dispenses with a hearing? Section 3 is contrary to the essence of judicial notice. In Sec 3, judicial notice is taken only after the parties have been heard on the issue of WON the court has to take judicial notice. So the parties will have the opportunity to ask the judge WON to take judicial notice of a particular fact or matter. The parties may be required to present evidence. Judicial Notice on Age / Appearance

To say that a court will take judicial notice of a fact is merely another way of saying that the usual form of evidence will be dispensed with if knowledge of the fact can be otherwise acquired. This is because the court assumes that the matter is so notorious that it will not be disputed. But judicial notice is not judicial knowledge. The mere personal knowledge of the judge is not the judicial knowledge of the court, and he is not authorized to make his individual knowledge of a fact, not generally or professionally

Example: Your knowledge about your birthday is totally hearsay. You were just told by your parents that you were born on that day based on your birth certificate. Later on mo na nabasa imong birth cert. You don’t really have personal knowledge regarding your birth, making your birthday a mere hearsay.

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LAW ON EVIDENCE Let’s say your age is relevant to the fact in issue in the case. The best evidence to determine your age is your birth certificate. What if wala kay birth certificate? Can the judge take judicial notice by just looking at you and estimate your age based on your physical appearance? NO because judicial notice is repugnant to the concept of autoptic proference. Autoptic Proference It means self observation. When the court conducts autoptic proference, it actually uses its senses. When the court is using its senses, it’s actually applying Rule 130 Sec 1 – Objects as Evidence. This is the appreciation of physical objects. The court can never take judicial notice of age by using autoptic proference. No matter how accurate your estimation is of a person’s age by just looking at his physical appearance, it can never be accurate. When a trier of facts observes the appearance of a person to ascertain his/her age, it’s not taking judicial notice of such fact, rather it is conducting an examination of an evidence, the evidence being the appearance of the person. Why would age be relevant sometimes in cases? In case of statutory rape, when the victim is below 12 years old, the consent of the latter as to the consummation of the crime of rape is immaterial for the prosecution of the accused.

based on the lectures of ATTY. JESS ESPEJO

considered, a remand of the case for determination of just compensation is necessary. The power to take judicial notice is to be exercised by courts with caution especially where the case involves a vast tract of land. Care must be taken that the requisite notoriety exists; and every reasonable doubt on the subject should be promptly resolved in the negative. To say that a court will take judicial notice of a fact is merely another way of saying that the usual form of evidence will be dispensed with if knowledge of the fact can be otherwise acquired. This is because the court assumes that the matter is so notorious that it will not be disputed. But judicial notice is not judicial knowledge. The mere personal knowledge of the judge is not the judicial knowledge of the court, and he is not authorized to make his individual knowledge of a fact, not generally or professionally known, the basis of his action. Let’s go back to judicial notice on age. Minority, in criminal cases, can be an exempting circumstance. In the crime of rape, age can be considered as a qualifying circumstance. In qualified rape, the victim is under 18 and the accused is a relative or the victim is under 7 yrs of age. Or age can be an element of the crime itself such as in Statutory Rape. If you are a court of law, would you be justified in taking judicial notice of the age of a person (witness, victim, or accused) if he has no birth certificate or other evidence of his age? (Pp vs Villarama 2003)

In making of wills, the testator must be at least 18 years of age. PP VS VILLARAMA 2003

In marriage, the contracting parties must be at least 18 years of age. LAND BANK OF THE PHILIPPINES VS. WYCOCO (2004)

Court decisions on rape of minors, in order to justify the imposition of death penalty, there must be independent evidence showing the age of the victim.

FACTS:  Feliciano F. Wycoco is the registered owner of a 94.1690 hectare unirrigated and untenanted rice land  In line withthe Comprehensive Agrarian Reform Program (CARP) of the government, Wycoco voluntarily offered to sell the land to the Department of Agrarian Reform (DAR) for P14.9 million  In arriving at the valuation of Wycoco’s land, the trial court took judicial notice of the alleged prevailing market value of agricultural lands in Licab, Nueva Ecija without apprising the parties of its intention to take judicial notice thereof. ISSUE: W/N the market value should have been taken judicial notice of without the requirement of hearing. RULING: NO.

What independent evidence must be presented? What will be the guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance? (Pp vs Pruna) PEOPLE VS. PRUNA 2002 FACTS:  On 27 January 1995, an information*2+ for rape was filedagainst accused-appellant Manuel Pruna y Ramirez or Erman Pruna y Ramirez  Jacqueline,Lizette’s mother, declared that at the time of the alleged rape, LIZETTE was 3 years old, but at the time Jacqueline testified on 17 October 1995, LIZETTE was 4 years old. LIZETTEs last birthday was on 19 April 1995  Pruna was convicted

Inasmuch as the valuation of the property of Wycoco is the very issue in the case at bar, the trial court should have allowed the parties to present evidence thereon instead of practically assuming a valuation without basis. While market value may be one of the bases of determining just compensation, the same cannot be arbitrarily arrived at without considering the factors to be appreciated in arriving at the fair market value of the property e.g ., the cost of acquisition, the current value of like properties, its size, shape, location, as well as the tax declarations thereon. Since these factors were not

ISSUE: W/N it was sufficiently established that Lizette was 3 years old at the time of the commission of the crime. RULING: NO. A persons age is best proved by the birth certificate. But is the presentation of the victims birth certificate a sine qua non requirement to prove her age for the appreciation of minority either as an element of the crime or as a qualifying circumstance? Recent jurisprudence has conflicting pronouncements.

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LAW ON EVIDENCE Guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance: 1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party.

based on the lectures of ATTY. JESS ESPEJO

of the defense as to her age did not excuse theprosecution from discharging its burden. That the defense invoked LIZETTEs tender age for purposes of questioning her competency to testify is not necessarily an admission that she was below 7 years of age when PRUNA raped her on 3 January 1995. Such being the case, PRUNA cannot be convicted of qualified rape, and hence the death penalty cannot be imposed on him.

2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age. 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victims mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 (an exception to the Hearsay Rule. Hearsay is not based on personal knowledge) of the Rules on Evidence shall be sufficient under the following circumstances: a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old.

July 13, 2016 Before we leave judicial notice and proceed with judicial admissions, let me just point out certain things that you need to remember. Let’s go back to Rule 129, Section 1 – Judicial notice when mandatory. Section 1. Judicial notice, when mandatory. — A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (1a)

 The trial court hs ould always make a categorical finding as to the age of the victim.

Make sure you know what are the subects of mandatory judicial notice. Remember when judicial notice is mandatory under Section 1, the courts will have no discretion whatsoever as to WON to take judicial notice of a particular fact. And when a court refuses to take judicial notice of matters, which are subject of mandatory judicial notice under Section 1, that would be tantamount to gross ignorance of the law. So you can always question the court for excercising discretion when no discretion exists. That could be subject to appellate review if a court does not take judicial notice of a matter subject of mandatory judicial notice.

 In the present case, no birth certificate or any similarauthentic document, such as a baptismal certificate of LIZETTE, was presented to prove her age.

There’s nothing much about Section 1 in remembering specifically what case or what particular object of mandatory judicial notice would be construed in a particular way except with respect to laws.

4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim’s mother or relatives concerning the victims age, the complainant’s testimony will suffice provided that it is expressly and clearly admitted by the accused. 5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him.

 LIZETTE testified on 20 November 1996, or almost two years after the incident, that she was 5 yearsold. However, when the defense counsel asked her how old she was on 3 January 1995, or at the time of the rape, she replied that she was 5 years old. Upon further question as to the date she was born, she could not answer.  For PRUNA to be convicted of rape in its qualified formand meted the supreme penalty of death, it must be established with certainty that LIZETTE was below 7 years old at the time of the commission of the crime. It must be stressed that the severity of the death penalty, especially its irreversible and final nature once carried out, makes the decision-making process in capital offenses aptly subject to the most exacting rules of procedure and evidence.  In view ofthe uncertainty of LIZETTEs exact age, corroborative evidence such as her birth certificate, baptismal certificate or any other authentic document should be introduced in evidence in order that the qualifying circumstance of below seven (7) years old is appreciated against the appellant. The lack of objection on the part

LAWS With respect to laws remember that laws could either be domestic or international laws. With respect to domestic law, laws are supposed to be official acts of the legislative department which means it is subject of mandatory judicial notice. With respect to international law, remember that what is subject to mandatory judicial notice would be those generally accepted principles of international law only. When we talk about particular international law meaning the law of a particular law like Germany or Australia as in the case we discussed, you have to prove that as a fact. The rules of court could provide you with the process by which you are able to prove international law or a law of a particular nation as opposed to generally accepted principles of international law.

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LAW ON EVIDENCE Take note right now, the arbitration court ruled in favor of the Philippines! Boo China! The hell with you China! But it’s a matter of WON we may be able to enforce it. But that decision of the international tribunal would be used as a jump off point for diplomatic solutions as to our problem here in the South China Sea or the way we call it the West Philippine Sea. You know what as far as I am concerned, the claim of China is anchored to the certain extent to the fact that it is called the South China Sea. Going back, what about ordinances? Remember when a court is required to take judicial notice of a particular ordinance.

based on the lectures of ATTY. JESS ESPEJO

Section 2. Judicial notice, when discretionary. — A court may take judicial notice of matters which are of public knowledge, or are capable to unquestionable demonstration, or ought to be known to judges because of their judicial functions. (1a) Then you have SECTION 3. Section 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.

OFFICIAL ACTS OF JUDICIAL DEPT of the PH Take note that when we talk about official acts of the judicial department of the Philippines, we are talking about the acts of the judiciary (the Supreme Court primarily) that would have force and effect of laws. And what would that be?

1.

Judicial decisions pursuant to Art. 8 of the Civil Code. Judicial decisions which interpret the laws of the land, form part of the legal system of the Philippines.

2.

Supreme Court issuances which governs pleading, practice and procedure before the courts. So when a particular matter falls whithin what I told you about then that would be subject to mandatory judicial notice. Take note that a court generally will not be allowed to take judicial notice of a matter, which is in contrversy, or a matter that has been litigated or is in litigation. So the court cannot therefore take judicial notice of the records of the court. Unsa lang man ang gina take notice? DECISIONS of the SC with respect to the jurisprudence of the land. But the decisions of CA, not necessarily. You do not take judicial notice of a subordinate or coequal court’s decisions. But take note what are the instances where taking judicial notice of the records of a court in a particular case is permissible. I gave you 2 cases there - ESPANOL and the case of OCCIDENTAL LAND TRANSPORT. Please remember those cases, it will tell you what would be permissible judicial notice of records of a case. Remember that there should be no objections of the other party. That’s a very important requisite and it must be read into the records of the case.

Now, we go to SECTION 2 – JUDICIAL NOTICE, WHEN DISCRETIONARY. Take note that no matter how you look at Section 2, the requirement simply is that the court shall exercise the power to take discretionary judicial notice sparingly. It has to be very careful to ensure that the requisite NOTORIETY exists. It must be one of common or public knowledge that it would be unprofitable to require it.

After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case. (n)

The case there I assigned is the LANDBANK VS WYCOCO (Jan. 14 2004). ISSUE: WON a court can take judicial notice of a supposed prevailing market value of a lot. RULING: So according to the SC here (applying section 3) when you talk about market value of a land that is something that should require evidence. It should be something that should be heard by the court. Remember in an expropriation case, the parties are of course required to prove WON the taking is proper and at the same time the amount of just compensation – WON is it proper. You have to prove consequential benefits and damages. We learned that from political law. In that situation the parties are entitled to be heard thereon. The court cannot simply take judicial notice of a supposed prevailing market value without asking the parties. It brings me to the conclusion that under Section 3 and reading from the case, that it is really repugnant. The concept of judicial notice is actually repugnant to what section 3 obtains. Because Section 3 tells you that judicial notice may be taken at the initiative of the court or upon request of the party and then allow the party to be heard thereon. When you hear parties, remember that the requirement of hearing would entail argumentation and presentation of evidence. In that situation, the court actually exercises its power to receive evidence. And when you receive evidence you are no longer taking judicial notice. So as far as I am concerned, Section 3 is aberrant. It’s not supposed to be judicial notice, regardless of how it originates. Because in Section 3, it might originate from the court in which case, the court will announce its intention to take judicial notice of a particular fact and then of course allow the parties to be heard later on.

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LAW ON EVIDENCE JUDICIAL NOTICE VS AUTOPTIC PROFERENCE How do you contrast judicial notice with autoptic proference? When you talk of autoptic we are talking here about the presentation of object evidence so you are bringing something so that the court may observe. It comes from the word auto and optic – self perception of the court. It is related to the term autopsy. Spy or to observe. So repugnant gyud na xa because the court when it looks at a person’s appearance to determine for example the age of the victim or the witness or accused regardless of the whether the purpose is jurisdictional or evidentiary, it is no longer taking judicial notice but receiving evidence through the process of of autoptic proference. Do you remember tha case of PRUNA? What are the guidelines for you to prove the age of the victim in a rape case. Precisely because in rape cases under the expanded rape law which transformed rape from a crime against chastity to a crime against persons, their age sometimes becomes an aggravating circumstance or a qualifying circumstance. The very element of the crime itself such as statutory rape where the age of the victim is an element of a crime. So in those kinds of situations, what can and what can’t be proved if this is your evidence. Remember the best evidence to be presented is the birth certificate and baptismal certificate or other authentic records showing the age of the accused. In the absence of those, that’s the time that you can resort to testimony, or substitutionary or secondary evidence. Now what will you present? Testimony of the mother or may be the testimony of the victim herself. I have already proven to you that that is unreliable. When a person testifies as to his age with the knowledge that he or she was born on a particular date, that’s actually not personal knowledge. Because you as a baby, do not have the ability to observe your birth and you cannot remember exactly when you were born. So everything you know about your age or birthday is actually hearsay. Therefore, kinihanglan mog independent testimony, or evidence to prove your age. Remember katong variances. You want to prove that the child is this age but you only succeeded in proving that he is at a different age. When the child herself would testify as to her age, remember that that would only be admissible in the absence of the objection of the accused. If there’s an objection you cannot do it anymore. SECTION 4 – JUDICIAL ADMISSIONS Section 4. Judicial admissions. — An admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. (2a) This will not be the first time that you will be hearing the word admission and its special signification in the law of evidence. Admissions can either be of two kinds.

based on the lectures of ATTY. JESS ESPEJO

1.

Judicial admission - made by the party in the course of the proceeding in the same case where the admission has been offered to prove something or it can be

2.

Extrajudicial admission – which we will talk in rule 130. Not in 129.

But take note that when we talk about a judicial admission, a layman’s understanding simply is that it is made in the course of a proceeding in a case. But Section 4 tells you that it has to be in the same case. So let us suppose you made an admission in case A pending before Branch 16 and then it is now being used as evidence against you in Branch 15 in a different case. Remember that when you make an admission in a different court and a different case, that is not considered a judicial admission but an EXTRAJUDICIAL admission. That’s one rule that we need to remember at the onset of our discussion of judicial admission. Judicial admission or an admission in judicio is a deliberate, clear, unequivocal statement by a party about a concrete fact within the party’s knowledge. It must be deliberate first because an admission will not bind the party making it if it was made by mistake. If he never really intended to make an admission therefore, it is not deliberate and therefore its not considered an admission. It must be clear and unequivocal and must not admit of two or more interpretations. It can also be defined as a formal concession in the pleadings or stipulations by the party or counsel that is binding on the party making them, although a judicial admission is not itself evidence. It has the effect of withdrawing a fact. Let’s focus on that second definition. A formal concession – when you say concession it means that you are surrendering, you concede! You are no longer controverting a fact. When the party says naa kay utang and then you say “yes naa koy utang” that’s an admission. You concede already. It can be proved a concession through the pleadings where for example the party in its answer admits to particular allegations in the complaint of the plaintiff. Or it can be stipulations. When do you usually make stipulations of facts? Remember in your CIVPRO, Rule 18 relating to pre trial. One of the mandatory objects of pre trial would be stipulation of facts and evidence. So parties can actually concede during pre trial. And when a party makes an admission, that fact is already withdrawn from contention. There’s no more issue regarding that fact. That’s a very important effect of making a judicial admission. When you are making a judicial admission, you are no longer allowed later on to controvert it pr to present evidence that is contrary to the admission that you’ve made. You admit for example in the pleadings that a party has the legal capacity and personality to sue. Meaning he has the power to file the case against you. And then later on during trial you make representations, saying that he is not actually allowed to sue that he has no legal capacity to sue. That will not be done anymore. All the other party has to point out is the

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LAW ON EVIDENCE fact that there has been prior judicial admission to a different effect. So pag abot sa ing.ana dili naka pwede mupresent ug evidence contrary to the admission that you previously made. Remember the latin maxim here is CONFESSIO FACTA IN JUDICIO OMNI MAJOR EST which means confession made in a trial is stronger than all proof. Mas bug.at siya compared to any proof that you might be able to present because you have already admitted it. Now let’s go back to Political law a little bit. Remember that there is a right to remain silent, do you recall that? The Miranda Warning! Now, why is it that the Constitution itself that you an accused would have that right to remain silent? Because anything you say can be used against you in a court room. That always reminds me what Dean Inigo says, regardless of where he says it (Civ Pro, Evidence) he keeps on saying LESS TALK, LESS MISTAKE and therefore NO TALK, NO MISTAKE. What is the reason there? Why is it na you always say to your client to remain silent. Because when he says something, that can be construed as an admission. And when he is deemed to have already made an admission specifically a judicial admission you cannot present proof to counteract the effects of your admission. So please remember that. In the case of SPS BINARAO vs PLUS BUILDERS June 16, 2006 – The SC had the occasion to lay down or enumerate, what are the sources of judicial admission. According to the SC, a party may make admissions: a. b. c.

in the pleadings during the trial – verbal or written manifestations other stages of the judicial proceeding

The most common there would be letter b, where we envision a counsel who is skilled in the art of cross examination, being able to make a party make an admission. I pride myself in my ability to cross examine and sometimes I really do witnesses lying in court but it doesn’t happen everyday. Why? Because any good lawyer before he presents a witness for direct examination and cross examination by the adverse party, should be able to tell the client immediately or witnesses that you should watch out for this. This could be asked. So as counsel, you need to be able to anticipate possible cross examination questions. Remember that during direct examination, it is supposed to be a question to be answered by specific acts so it must not be leading in nature. When you say question answered by a specific act, it must not be answerable by a yes or no. So who where what how why, etc. You do not ask a question that will not fit that formula. But during cross examination, all the witness has to answer is yes or no. If you are skilled at cross examination, you don’t actually make witnesses answer questions na kanang who what when where why etc. You do it only when the witness has no choice. It is like in debates, you start a series of yes or no questions and then eventually you trap the opponent that you are interpolating to revealing a particular fact to

based on the lectures of ATTY. JESS ESPEJO

be contrary to what he previously stated. That’s how you do it also in court. It is very ideal that the counsel may be able to catch a party making an admission or telling an outright lie. Even the best of them will not be able to do that everytime. And every lawyer prepares his witness ahead of time. In my case, I even go to the extent of asking a different lawyer, to hear the supposed direct examination of my witness in my own office and that other lawyer i.e. Yangyang Espejo will cross examine my witness and my wife also does the same thing. Her witness testifies in front of me and I will cross examine. So that’s how we prepare our witnesses. So that pag abot sa panahon that he is already being cross examined by the other party’s counsel he will not be surprised anymore. Especially if I’m the one cross examining. I don’t know why but I think people get scared when I cross examine. (Tells stories about him being a judge in a beauty contest na wa katubag sa follow up question ang contestant.) The ability to coerce or to compel a party to make an admission, that is of course contrary to the cause that he is espousing… meaning it should be an admission against his interest. Because if he makes an admission that serves his interest, that’s considered as self serving admission which will not do your case any good if you are cross examined. So it is really difficult to obtain judicial admissions. That’s the most common source of judicial admission but you will learn when you become lawyers and you have ample knowledge of CIVPRO that there are a lot of sources diay that you can take advantage of. That lawyers seem to be unaware. So let us look at the instances when admissions can be made for example during hearings. So it can be admissions made by a party in the course of the trial either by verbal or written stipulations or in other stages of a judicial proceeding as in the pre trial case. Admissions obtained through depositions, written interrogatories or requests for admission are also considered judicial admissions. Now, here’s this case that I have just read – ADOLFO vs ADOLFO March 18, 2015. In addition to taking note of judicial admissions, please take note as well about the distinctions between judgment on the pleadings and summary judgment. Sometimes parties get confused between these distinctions. So remember that by way of review and apply that to the concept of judicial admissions. When you make admissions, what does that mean especially in the pleadings? It means that you are not tendering an issue or you are posing no genuine issue to be tried – which necessitates either judgment on the pleadings or summary judgment. Kung example imo answer puro admission sa mga stipulations or allegations in the complaint, what will happen? That will now be ripe for judgment on the pleadings because there is not genuine issues to be tried or they can be shallow issues. Take note of that because it is no longer my responsibility to review CIVPRO. Just read the case – ADOLFO.

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LAW ON EVIDENCE ADMISSIONS CAN BE MADE IN BOTH INITIATORY AND RESPONSIVE PLEADINGS. Example – in a complaint defendant Geronimo contracted a loan with the plaintiff Sara. While defendant had paid the first 5 installments, all the succeeding installments remain unpaid. Ning bayad na kalima si Geronimo, ang uban wala pa. In an answer for example “defendant admits the allegations contained in paragraphs 1 and 2 of the complaint in as much as they merely allege the personal circumstances and capacities of the parties. st

Now the 1 one appears in a complaint so what’s the admission being made by the plaintiff there? That the defendant made payments. It is just that there are other installments that the defendant has not yet paid. Therefore that would now be the basis of the cause of action for specific performance para mabayran iyang utang. So the plaintiff made an admission that will now limit the issues to be tried. Because of instead of the entire loan being unpaid, the plaintiff is now limiting voluntarily by way of an admission the amounts that were yet to be paid. So later on the plaintiff cannot present evidence saying that “actually mas daghan pa diay sa uban installments ang wala pa nia nabayran”. What about in the 2nd one? In an answer defendant admits the allegations contained in paragpraphs 1 and 2 of the complaint in as much as they merely allege the personal circumstances and capacities of the parties. That is the way I usually answer or to allege in an answer, responses to the recitations to the personal circumstances of the parties. For example, what usually appears in par. 1 of a complaint – “the plaintiff Sara G. of legal age, Filipino, single, resident of Metro Manila PH etc. For purposes of this complaint she may be served with summons and other orders of the Honorable Court in blah2.” So, are you gonna contest that? Or you simply make an admission? Now if you say that you admit the personal circumstances, you no longer refute the name, marital status, nationality of plaintiff. You cannot contradict that later on. Another example which is my favorite – RULE 8 Section 8. Section 8. How to contest such documents. — When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath specifically denies them, and sets forth what he claims to be the facts, but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. (8a) It talks about actionable document. What is it? It’s a document upon which the plaintiff’s cause of action and defendant’s defense is founded upon. So when an action or defense is founded upon an instrument attached to the corresponding pleading, as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party,

based on the lectures of ATTY. JESS ESPEJO

under oath specifically denies them and sets forth what it claims to be the facts but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for inspection is refused. Focus only on the first part because that’s where the meat of the provision lies. So when is a document actionable in a sense that it is the foundation of your complaint? Give me an example – in case there is a debt the actionable document or foundation or basis for your complaint for specific performance – Promissory Note. That’s your actionable document. And remember under Rule 8 Sec. 7 – you are supposed to be told how you are supposed to allege, how do you plead and actionable document. Its either you copy verbatim and make it part of your pleading or you attach it and incorporate it in your pleading and you make reference. That’s the manner by which you make an allegation of an actionable document. In an answer therefore, if the answer alleges that “no, nakabayad nako” despite the presence of the PN, how do you deny for example if you are contesting na lang the existence and due execution of the PN. In effect you are saying na wala koy utang, how will you do it? According to Rule 8 Section 8, you have to do it under oath. Which is satisfied by the requirement that you verified your answer. Not all pleadings need to be verified. But in this situation, the answer is required to be verified because you have to deny it under oath. That’s the requirement of verification. It is an affidavit under oath: 1. That you have caused the preparation of the answer 2. That you have read the contents of the answer 3. That the allegations thereon are true and correct based on your personal knowledge or authentic records. Diba mao man na? Can you recall that from CIVPRO? I hope you do. That’s very important. There are cases saying that a defect in verification would also lead to the defect in the requirement that the denial should be under oath. Which leads to the effect that you are deemed to have admitted the genuineness and due execution of the actionable document. Now, you file an answer and if the PN is the best evidence to prove the existence of the debt, what would be the best evidence to prove that you have made payments already… full payment of the debt – it’s a receipt! Because it really says that you have already paid everything. If the utang in the PN is 1M then you have a receipt making reference to the utang for 1 M that means you are fully paid and may lead to the dismissal of the action because the claims set forth in the plaintiff’s pleading has been paid and is extinguished – under RULE 16. But now, plaintiff is stating that the receipt that you have attached to the answer is authentic. I think that is a forged receipt because I do not remember ever issuing a receipt when you paid anything to

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LAW ON EVIDENCE me. Im not even admitting that you paid anything to me. So now, in the case of: CASENT REALTY VS PHILBANKING CORP (Sept 14, 2007) – take note of what the SC said, “since the respondent failed to file a reply, in effect respondent admitted the genuineness and due execution of the said documents. This judicial admission should have been considered by the appellate court in resolving the demurrer to evidence. This is pursuant to RULE 129 Section 4 of the Rules of Court.” So that’s supposed to be a judicial admission. Now, the SC is saying you did not file a reply. In other words, the admission relates to the due execution and genuineness of an actionable document attached or referred to in an answer. How do we reconcile that with the fact that a reply is actually optional? Diba the filing of a reply is optional? It is not mandatory. In fact, look at Section 10 on Pleadings – “a reply is a pleading the function of which is to deny or allege facts in denial of avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such matters if the party does not file such reply, all the new matters alleged in the answer are deemed controverted.” So there is that effect of automatic controversion. Regardless of whether you file that reply, there is an effect. All new matters alleged in the answer are deemed controverted. So why is it that the SC here, in effect punished the respondent for failing to file a reply, when in fact a reply is an optional pleading, not mandatory. What is a mandatory pleading? A complaint for example is a mandatory pleading. Without the filing of the complaint, the court acquired no jurisdiction over the subject matter, issues of the case, res, person. What about an answer? Is it a mandatory pleading? YES! Because failure to file an answer can cause the court to render judgment against you in default – Under Rule 9. So you failed to file an answer, it might lead to different scenarios: 1. 2.

the court may proceed to render judgment by default and grant the plaintiff what he is praying for in his complaint it may choose to receive evidence which may be delegated to the clerk of court.

Remember when the court proceed to render judgment, the court is not allowed to award matters which are different from that prayed for by the plaintiff and it cannot award unliquidated damages. Those are the basic limitations on a default judgment. A reply? Is it mandatory? Very clearly from SECTION 10 it is not. But Casent Realty case says in effect, because the plaintiff failed to file a reply, it becomes mandatory. But you need to remember that IT IS MANDATORY ONLY WHEN AN ACTIONABLE DOCUMENT IS ALLEGED IN AN ANSWER. Rule 8 Sec. 8 specifically applies to actions or defenses founded upon a written instrument and provides the manner of denying it. It is more controlling than Rule 6 Section 10 which merely provides for

based on the lectures of ATTY. JESS ESPEJO

the effect for failure to file a reply. THUS, WHERE THE DEFENSE AND THE ANSWER IS BASED ON AN ACTIONABLE DOCUMENT, A REPLY SPECIFICALLY DENYING IT UNDER OATH MUST BE MADE, OTHERWISE THE GENUINESS AND DUE EXECUTION OF THE DOCUMENT WILL BE DEEMED ADMITTED. Let’s try to tie that up with Civ Pro. WHILE THE FILING OF A REPLY IS OPTIONAL, IT BECOMES MANDATORY WHE THE ANSWER ALLEGES AN ACTIONABLE DOCUMENT. In which case, a reply must be filed and must be denied under oath and therefore the reply must be a verified reply. That’s a very important effect. If you do not file a reply, automatic admission rather than automatic controversion. – (CASENT vs PHILBANKING 2007) Rule 8 Section 11 - Allegations not specifically denied deemed admitted. — Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath. (1a, R9) So you divide the provision into two. The first one what’s the judicial admission that’s present in the first sentence. If you fail to properly deny to specifically deny an averment in a complaint, that is already deemed admitted. So if you make a general denial, that would not suffice. A general denial has the effect of an admission. So unsaon diay pag deny? You have to specifically deny it, how do you make a specific denial? BY TELLING THE COURT YOUR VERSION OF THE STORY. If the version of the plaintiff is this, you have to refute that version by saying what accordingly transpired. Mao na siya and manner of specific denial. So that’s also very important because if it has the effect of being deemed admitted when not specifically denied, all you have to do is to look at the answer and see which areas he did not make a specific denial. If that is a general denial, that’s a point for you. That fact is already withdrawn from contention you, don’t have to prove it. If he tries to prove something contrary to his general admission by reason of a general denial it has the effect of an admission – you can object now! It is contrary to the admission. He should not be allowed to present evidence under RULE 129 SEC 4. See how important this is? Sometimes CivPro and Evidence go hand in hand. It is very important that you know the rules when they intercept in a particular case. 2nd sentence of Rule 8 Sec. 11 – what will be deemed admitted? That the contract is usurious. Simple is that. But right now usury technically speaking does not exist as it was suspended by Central Bank Circulars. The rule right now with respect to interests is that the parties are free to stipulate – whatever terms and conditions which they deem proper provided they are not contrary to law, morals, good customs, public order, public policy. Isn’t usurious interest contrary to morals, and public policy? It may not be contrary to law but it sometimes is contrary to morals. Technically speaking usury does not exist and the parties may stipulate as to the amount or interest that they want to charge in a contract in a loan or forebearance. Ginaingon sa SC na they will not hesitate to strike it down if:

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LAW ON EVIDENCE 1. 2.

It leads to the hemorrhaging of the assets of the debtor; When it is shocking to the morals or unconscionable.

Those are the times when the SC strikes down usurious interest. When you answer bar exams or your exam questions, you use the language of the law or the SC because sometimes they will disagree with me saying that its better to answer on my own words. The legal profession is supposed to be an exact profession. Kelangan exact atong definitions. Kung dili tinamad ka dili ka kapasag bar! Pasensiya. Rule 10 Section 8 - Section 8.Effect of amended pleadings. — An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader, and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived. (n) So there is a complaint and then an answer. Now, let’s go back to what you recall under Rule 10 and that is Amendments of Pleadings. Remember that amendments can either be a matter of right or judicial discretion. When is it a matter of right? There are two instances: 1.

Formal Amendment – meaning naa lang kay ichange. Mali ang spelling, ichange nimo.

2.

Substantial amendment before responsive pleading has been served – So wala pa naka-file ug answer. You count the 15 day period within which the defendant should file an answer from date of receipt of summons together with the copy of the complaint. Wala pa siya naka file, can you amend the pleading as a matter of right? Yes. You can.

Now, what if you are changing your pleading. You are changing practically all of your allegations. Yes you can still do it provided it will not affect your obligation to pay the required docket fees. If you pay a particular docket fee for a particular cause of action, the court acquires jurisdiction over that cause of action. But what if ang payment nimo will not cover the cause of action as amended. So the court will not acquire jurisdiction there. In that situation, can you still do it? Even if the defendant is about to file an answer and complains that gi change man niya! Pwede ba nimo ichange or iamend imong pleading as a matter of right? Yes you can. And remember, the requirement is responsive pleading. Let’s say for example you filed an action before the RTC and your complaint states that it is an action for unlawful detainer or forcible entry. Pwede dili? No! Because that is exclusively lodged in the jurisdiction of the MTC. And so when the defendant receives a copy of your complaint, the defendant is thinking “haha! Nagbinugo ka!” So he now prepares a motion to dismiss because the court has no jurisdiction over the subject matter of his claim. The RTC cannot entertain actions for FE. So he files a motion to dismiss. On July 13 niya gifile ang amended complaint. And the plaintiff said “OMG, what was I thinking? May nalang I remember my professor Atty. Espejo when he said you can never file a case for FE before the RTC. And I also remember my professor telling me that there are certain actions relating to real property that would fall under the jurisdiction of the RTC depending on the assessed value of the property. So depende 20,000 – 50,000. Tama ba? Let’s assume that’s

based on the lectures of ATTY. JESS ESPEJO

correct. It happens that the value of the property for FE is more than 20,000 outside MM. So let’s say the value of the property is 1M. So now, gichange niya ang allegations sa complaint making it an action for recovery of possession. So you know amend it because you have not yet received the motion to dismiss. So it is now with the jurisdiction of the RTC. On July 14 a day after you filed an amended complaint, ning file ang defendant ug motion to dismiss. What happens to the motion to dismiss? Because the ground for dismissal does not exist anymore. The defendant is saying that’s unfair. He is saying you are not allowed to do that! Is the defendant correct? Of course no!!! Amendment here is a matter of right. Let us change it a little bit. The motion to dismiss was filed on July 13. So the plaintiff, after receiving a copy of the motion to dismiss, the plaintiff files an amended answer to this effect that instead of it being a FE case, it becomes a recovery of possession case. Now, the defendant complains… “HAHA! I got you finally!” As in he really said HAHA! Why, ngano man? Why according to the defendant he got him? Because he filed it after I filed my motion to dismiss and according to the law, it is only an amendment as a matter of right if its filed before a responsive pleading has been served. So would that change now? Or is amendment still a matter of right? I’ll ask you this question – IS A MOTION TO DISMISS A RESPONSIVE PLEADING? NO!!! There are only 7 pleadings allowed: 1. 2. 3. 4. 5. 6. 7.

Complaint Answer Reply Counterclaim Cross-claim 3rd party complaint Pleadings in intervention

A motion to dismiss is not a pleading. So when you file a motion to dismiss, it does not affect the ability of the plaintiff to file an amended complaint as a matter of right. So that is why the law cautions you. If you are a defendant the law cautions you. Instead of filing a motion to dismiss, you are supposed to file an answer and plead your grounds for a motion to dismiss as an affirmative defense in your answer. Because in that situation if you file an answer with affirmative defense, unsay effect? - No longer a matter of right ang pagfile ug amendment. No longer amend his complaint as a matter of right. Will it affect his ability to cause the dismissal of the case immediately? NO! You need to remember under Rule 16, when you file an answer with affirmative defense which ought to have been grounds for a motion to dismiss, the court may order a preliminary hearing to be had thereon as if a motion to dismiss have been filed. So you have a complaint, it is responded to by an answer. Then an answer is supposed to be responded by a reply (which is optional and inc certain cases, mandatory). Let us supposed in your answer, you made judicial admissions. “The defendant admits the admission in paragraph 7 of the complaint”. So that has the effect of a judicial admission. But later on you realized, “OMG, I made a mistake. Anyway, wala pay reply, under the Rules I still have the ability to amend my answer as a matter of right.” And so he does. He amends the answer as a matter of right. What happens now to the judicial

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LAW ON EVIDENCE admissions contained in the answer? Rule 10 Section 8: An amended pleading supersedes the pleading that it amends. So technically speaking, the pleading no longer exists. It is as if it was never filed. That’s the general rule. But the exception is, admission in superseded pleadings may be received in evidence against the pleader. So naa pay effect. So the answer which made a judicial admission of paragraph 7, can you still use it against the pleader or defendant? YES! But Rule 10 Sec. 8 says, it is no longer considered a judicial admission. It becomes an EXTRA JUDICIAL ADMISSION. What is the difference now between a judicial and an extra judicial admission? JUDICIAL ADMISSION – no need to prove it because he is precisely the one making an admission. EXTRA JUDICIAL ADMISSION – in order for it to be received as evidence, it must be pleaded and proven. So you plead it in pleadings and then prove it later on, present evidence. Remember these are very basic principles relating to admissions. Admissions made in superseded pleadings cease to be judicial admissions, they are considered extra judicial admissions. So in order to be utilized as extra judicial admission, they must be formerly offered as evidence after pleading it then prove it. VERBAL OR WRITTEN ADMISSIONS Admissions during trial can either be VERBAL or WRITTEN.

based on the lectures of ATTY. JESS ESPEJO

IN SANTIAGO VS DELOS SANTOS 61 SCRA 146 – An admission cannot be controverted by the party making such admission and are conclusive as to him and that all proofs submitted by him contrary thereto or inconsistent therewith shall be ignored whether objection is interposed. So even in the absence of an objection, you cannot present any proof contrary to your judicial admission. Dili jud na dapat maka lusot. It is one of those instances under the law on evidence where objection is unnecessary. Another instance would be in the matter of a hearsay testimony or hearsay evidence – because even if makalusot siya and it is admitted by the court because of lack of admission, it does not mean that the court would give it evidentiary weight. Hearsay evidence whether objected to or not has no evidentiary value. We will go to that when we reach Rule 130 Sec. 36 and its exceptions. It must be made in the same case. If you make it in another case, that cannot be considered a judicial admission in the context of RULE 129 Section 4. REPUBLIC GLASS vs QUA 2004 “To constitute a judicial admission, it must be made in the same case in which it is offered. If made in another case or court, the fact of such admission must be proved as in the case of any other fact. Although, if made in a judicial proceeding, it is entitled to be _____(?).”

A verbal judicial admission can take the form of a manifestation or testimony in court.

Nothing much about this case.

So if I were you if you get into trouble, somebody files a case against you, do not get a lawyer who is very talkative in court. I am talkative in class but not in court. Less talk, less mistakes. No talk, no mistakes.

If made in the same case – JUDICIAL ADMISSION, if not the same case – EXTRA JUDICIAL ADMISSION. Therefore, it has to be pleaded and proved as in the case of any other fact. Although if it is made in any other judicial proceeding must believable siya compared to one that is made outside of the court.

A written judicial admission can be in motions, written manifestations, briefs, memoranda, affidavits, submission in answer to a request for admission. ADMISSIONS IN OTHER STAGES OF THE CASE Instances: 1. Pre-trial where admissions and stipulations of facts are mandatory subjects of pre trial 2. Availment of discovery procedures before trial, or pending appeal such as:  Depositions  Request for admission  Physical or Mental examination of persons (modes of discovery) Let’s go to Pre Trial – Rule 18 of The Rules of Court. There is supposed to be a portion during Pre Trial where you have to list down your supposed stipulation of facts. Why? Because if the other party admits it during Pre Trial or also during his pre trial brief then there’s no need to prove that in court. Well-settled is the rule that judicial admissions are conclusive on the party making it. When you say conclusive what does it mean?

Exceptions: The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. So you made an admission and now it is taken against you. You still have a recourse. That is – hide behind the exceptions. “MADE THROUGH PALPABLE MISTAKE” What do you mean by mistake? Sayop, mali! We all know what mistake means but what is palpable lahi na siya sa papabol. It’s a mistake that is obvious to both sides. So it is clear to the plaintiff and clear to the defendant that clearly no admission was intended by the party making the admission. So obvious to both sides. “NO SUCH ADMISSION WAS MADE” So you are actually saying, I never did it. I never said anything to that effect and therefore I did not make such admission. Under your Rules of Evidence, prior to recent amendments, this is the only exception to the rule that judicial admission binds the party. Isa lang ni siya ka exception but now they added the “no such admission was made”. Take note of this case:

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

ATLAS CONSOLIDATED MINING VS CIR Nov 17, 1999. Im not going to discuss that anymore.

Try to contrast the case of FULE vs CA with the case of KING vs PEOPLE Dec. 2, 1999.

NO SUCH ADMISSION WAS MADE – they had not been made at all or the admission was taken out of context or not in the sense in which the admission was made to appear. You know what, lawyers you see one thing, they add another thing = automatic pildi naka in this mind of his.

KING vs PEOPLE – In an appeal from a conviction for BP 22, the accused contends that the pieces of documentary evidence presented by the prosecution during pre trial are inadmissible because she did not sign the pre trial agreement. So what is Betty King trying to say since wala ko nag prima edi libre nako. So ang contention niya is she should be acquitted as there is no reason for conviction because those pieces of evidence during pre-trial could not be taken against her on the ground that they were inadmissible for her failure to sign the pre trial agreement. She is using the FULE Doctrine to reverse her own conviction for BP 22.

ATILLO III VS CA JAN 23, 1997 – for instance if a party invokes an admission of an adverse party but cites the admission out of context, then the one making the admission may show that he made no show admission or that the admission was taken out of context. This may be interpreted to mean not in the sense in which the admission is made to appear that is the reason for the codifier “such”. SILOT VS DELA ROSA FEB 4, 2008 – Admission made by counsel is binding upon the clients. So again kung lawyer ka, do not be so careless in making such admissions. FULE VS CA - Pre-Trial is mandatory also in mandatory in criminal cases. So in this case what happened here was of course, stipulation of facts. Then what if the accuse admits or stipulates as to the existence of certain facts and the effect of that would be for him to make a confession or an admission of his guilt in the criminal case. Can he be convicted based on confessions or admission? Of course, you can. In fact, a mere extrajudicial admission together with the corpus delicti would be sufficient to warrant a conviction. So here, after Pre-Trial, of course you have a Pre Trial order or pre trial agreement between the accused and the prosecution. But the problem is wala gipirmahan sa accused and counsel ang pre trial agreement. So if you make your confession remember there are very important formal requirements of a confession especially in a criminal case and during pre trial, you have to sign not only the accused but also the counsel. So what’s the effect in this case na walay pirma. The prosecution did not present evidence anymore. Kay nag confess naman so naghulat na lang ug conviction. During appeal, the CA reversed it on the ground that, again, there is failure to sign the pre trial agreement by counsel and accused. According to the SC, pag wala, that becomes inadmissible in evidence. So in effect the stipulation of facts that you made will not be binding anymore. This is the FULE DOCTRINE. Kung dili signed, not admissible as evidence. What the prosecution should have done upon discovery that the accused did not sign, was to submit the evidence to establish the elements of the crime instead of relying solely on the supposed admission of the accused in the stipulation of facts. So now klaro na na siya sa RULE 118 Sec. 2

The SC said… “True, a pre trial agreement not signed by the party is inadmissible. However, the conviction of King in this case was not based on the agreement but on the documents submitted during the trial all of which were admitted without any objection from her counsel. Tanga ang lawyer, wala ni object. During the hearing on September 17, 1993, the prosecution offered as evidence the dishonored checks, the return check tickets addressed to private complainant, the notice from complainant addressed to petitioner that the checks had been dishonored, and the postmaster's letter that the notice had been returned to sender. Petitioner's counsel did not object to their admissibility. It is clear that the prosecution evidence consisted of documents offered and admitted during the trial. In view of this, the CA correctly ruled that Fule v. Court of Appeals would not apply to the present controversy. In that case, a hearing was conducted during which the prosecution presented three exhibits. However, Fule's conviction was "based solely on the stipulation of facts made during rile pre-trial on August 8, 1985, which was not signed by the petitioner, nor by his counsel." Because the stipulation was inadmissible in evidence under Section 4 of Rule 118, the Court held that there was no proof of his guilt. In the present case, petitioner's conviction was based on the evidence presented during trial, and not on the stipulations made during the pretrial. Hence, petitioner's admissions during the trial are governed not by the Fuleruling or by Section 4 of Rule 118, but by Section 4 of Rule 129. So mao na siya ang contention. On the one hand, we have Fule on the other hand we have King. So make sure that you know the facts of FULE and you also know how it is different from the facts of KING. Kung naay pangutana sa bar about unsigned pre trial agreement, it could either be FULE or KING.

RULE 118, Section 2.Pre-trial agreement. — All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. The agreements covering the matters referred to in section 1 of this Rule shall be approved by the court. (Sec. 4, cir. 38-98) It is now there, the requirement in the case of FULE was now reduced into a clear provision of law. 3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.

LAW ON EVIDENCE July 15, 2016 We are at the pint of the semester that we really have to deal with Evidence Proper Already. If you are going to look at the entire law of evidence, you will find out that two rules are of prime significance. First, Rule 130 on the Rules of admissibility, where you will be told what can and what cannot be admitted into evidence and Rule 132, which will tell you how to present evidence. Offers, objections and other rules that you need to remember. So we begin now with Rule 130 and for tonight’s lesson, we will only be dealing with object evidence. I will limit it object evidence because we cannot proceed to documentary evidence on the reason that I need to discuss with you DNA evidence. Lets us proceed to the Rules of Admissibility. Recall that when we introduced evidence to this class. We classify them into three. We have object evidence, documentary evidence and of course we have testimonial evidence. RULE 130 – RULES OF ADMISSIBILITY OF DOCUMENTS 1.

green siya, rectangular in shape, so what does the class card contain? It is the content of the document itself that is relevant. In a way, in the appreciation of the documentary evidence, the court rather than the mere use of the object evidence actually uses intelligence. When you talk about the content of the document you have to construe it sometimes, you have to understand it; you have to determine the respective rights and obligations of a party, depending on what is written in the document. So in addition to the five senses, the court if any uses intelligence. If any lang, kung nay intelligence ang court.  3.

Testimonial Evidence

Are oral or Written assertions offered in a court as a proof of what is stated for as long as the witness whose testimony was offered, perceived and in perceiving can make known its perception to others. Requirements of a Testimonial Evidence First, the capacity of perception; you must be able to perceive, you must be able to observe.

Object Evidence

Rule 130, 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. These are evidence that is addressed to the senses of the court. They are viewed and examined by the court because they are relevant to the fact in issue in the case. (Rule 130, Section1) They are also tangible evidence meaning it is something that you can easily perceive. You do not have to imagine it, you see it, you hear it, and you smell it, etcetera. Directly involve in the matters of the case as a matter of fact which tends to prove, relate to appearance, existence, condition, and other matters related to the physical existence of an object. In the appreciation of the object evidence, the court of course the senses of sight, hearing, taste, and smell. And it is also called real evidence because of what it has to do with the thing, the res. And it is the thing or object that is addressed to the senses of the court. 2.

based on the lectures of ATTY. JESS ESPEJO

Documentary Evidence

Rule 130, Section 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) As you have memorized, documents as evidence consist of writing or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents. (Rule 130, Section 2) For documentary evidence, what is important is not the physical document itself like this class card. This is not what is important

Second, is the capacity of recollection; mahinumduman nimu imung na perceive, it is an object, document, and Third, the capacity of communication; you are able to make known your perception to others. Those are the three capacities required in testimonial evidence. Let us review a little bit of which among the three types of evidence would be most preferred by the courts. Remember the case of: PEOPLE VS LAVAPIE The Supreme Court actually said that greater credence is to be given to physical evidence or real evidence as the evidence of a highest order because it speaks more eloquently than a hundred witnesses. So on top of the hierarchy is the object evidence. It is the type of evidence that we will be discussing tonight. And in the case of: GSIS vs. Court of Appeals The Supreme Court also distinguishes between testimonial evidence and documentary evidence. Generally, documentary evidence prevails over testimonial evidence. Atty JZE: But we also pointed out that actually there is a little room for choice between the two types of evidence. Meaning in the greater scheme of things, both of them are actually unreliable. So object evidence lang gyud ang evidence of the highest order. Then between oral and written testimony, open court declarations takes precedence over written affidavits in the hierarchy of evidence. Unlike written statements, there is flexibility on the part of the questioner to adapt his questions to illicit out the answers in order to ferret out the truth. So mas okay ang open court declarations. We will learn later on the requirement that a

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LAW ON EVIDENCE testimony must actually be made in the open court because it gives the other party to cross examine and determine the truth or falsehood of a statement made by the witness. So we get that hierarchy already. But informally, there is a 4th class of evidence recognized by the th rules. So what do we call that 4 class? 4.

Demonstrative Evidence

It is evidence in the form of an object like maps diagrams, or models that have, in themselves, no probative value but are used to illustrate and clarify the matter in issue. Demonstrative evidence, as evidence, not really prohibited though not specifically mentioned in the Rules of Court. In appreciating demonstrative evidence, the court use the same five senses, but more importantly applies intelligence as well to draw conclusions or inferences in the object presented. Thus, for demonstrative evidence what is more important is not then object, not the map, not the diagram, not the model, but the information that the objects create. In my practice, I had the occasion to apply demonstrative evidence by reason of necessity. Why? Remember when I told you that few years back have like the dumbest witness I ever had. It is true because when he was bumped by a motorcycle. Gipangutana siya kung unsa siya kalayo nalagpot he said 50 METERS. If remember it correctly. So the counsel for the defense, the PAO lawyer here even made a very crafty examination. So he asked, kung tinuod gyud na nalagpot ka ug 50 metros nganung buhi pa ka? So what type of question is that? That is actually very sarcastic. So what did I do? I made a demonstrative evidence in the form of a diagram. To show clearly kung asa siya nabangaan when the motorcycle bumped and kung asa siya nalagpot. So what we were trying to prove there is that the accused was really negligent in the operation of his vehicle as it that has caused him to bump somebody who was in the position on the road where he should not have been bumped. So ingato akong gibuhat. Demonstrative evidence. Now will that demonstrative evidence constitute evidence by itself? The answer is no because that was merely a visual aid, to aid the witness in the progress of his necessity. So simple as that. The diagram is not the evidence itself but the information that can be culled from the presentation of the diagram and what the witness says in court. So does the court exercise intelligence? It exercised intelligence. Unsay nasabtan sa korte based on the testimony and what was presented by the diagram. So how do we differentiate now real evidence from demonstrative evidence? Real Evidence Real Evidence consists of intangible objects that played an actual rule in the matter that gave rise to the case in litigation. So it really has a part, it is really very integral to the fact in issue to the case.

Demonstrative Evidence Demonstrative Evidence is tangible evidence that merely illustrates the matter of importance in the litigation.

based on the lectures of ATTY. JESS ESPEJO

Actual

Illustrative Demonstrative evidence tends to show that the object fairly represents or illustrates what it alleges.

It tends to prove that the evidence is used in other likelihood, making it material evidence.

Atty JZE: Parehas kadtong akong example ganiha. What did I want to show? The position where the bumping took place, where the vehicle was coming from and where my client was actually from. It is a representation an illustration on what is or what was alleged to have happened. It is an aid in testimony.

It is an evidence in itself.

So let us now go to Section 1, objects as 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) We have also noted previously that when we talk about object evidence or real evidence, we are actually referring as well to what we call as AUTOPTIC PROFERENCE. BALINGIT VS. COMELEC, FEBRUARY 9, 2007 Autoptic proference, in legal parlance, simply means a tribunal's selfperception, or autopsy, of the thing itself. So if we look at the etymology of the word itself it means “seen with your own eyes.” Auto means self and optic pertaining to the eyes. So belonging to or connected with personal observation. That is the relation to the word autopsy. It actually means the same thing. So when applied to a Philippine Court, AUTOPTIC PROFERENCE is the act of the tribunal or a majestry in exercising its senses to determine the probative value of a particular object. CALDE VS. COURT OF APPEALS ,JUNE 27, 1994. In the making of a notarial will, there is a requirement that the witnesses must sigh in the presence of one another. All the attesting witnesses in the making of the notarial will must sign in the presence of the testator and in the presence of one another. That is a very important requirement. In this case, two witnesses testified that only one pen was used in the signing of the will. Only a black pen was used. However, the court noted that there were actually two colors that were used in the actual will and in the codicil attached to the will, black and blue pen. So naa karuy doubt as to whether the will followed the formal requirements under the law on succession. So According to the Supreme Court:

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LAW ON EVIDENCE A review of the facts and circumstances, however, fails to convince us that the testamentary documents in question were subscribed and attested by the instrumental witnesses during a single occasion. The signatures of some attesting witnesses in decedent’s will and its codicil were written in blue ink, while the others were in black. This discrepancy was not explained by petitioner. Nobody of his six (6) witnesses testified that two pens were used by the signatories on the two documents. In fact, two (2) of petitioner’s witnesses even testified that only one (1) ballpen was used in signing the two testamentary documents. The will and the codicil. That a person is of small height or is of dark complexion (is this guy talking about me?); as to such matters, the perception by the tribunal that the person is small or large, or that he has a dark or light complexion, is a mode of acquiring belief which is independent of inference from either testimonial or circumstantial evidence. It is the tribunal’s self-perception, or autopsy, of the thing itself. From the point of view of the litigant party furnishing this source of belief, it may be termed Autoptic Proference. So in the case of Calde, it actually paved the way for autoptic proference over positive testimony. There was a testimony that they signed in the presence of one another. But, by reason of autoptic proference, by the initiative of the court itself, they invalidated the will for the reason that there might have been noncompliance with the requirements of article 805 of the Civil Code. So, in black and white — or more accurately, in black and blue — that more than one pen was used by the signatories thereto. Thus, it was neither erroneous nor baseless for respondent court to disbelieve petitioner’s claim that both testamentary documents in question were subscribed to in accordance with the provisions of Art. 805 of the Civil Code.

based on the lectures of ATTY. JESS ESPEJO

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Or means to perpetrate the crimes; like keys kanang false keys for example in a crime of trespass. Or a murder weapon by itself; A gun, a knife and so on and so forth. So you bring it before the court room and have the court inspect it.

2.) That which consist in the inspection of the object outside the court room. Examples: -

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Ocular inspection in a boundary dispute. So muadto ang court didto with the interpreter and with the clerk of court usahay pa gyud just to see the muniments of the property. Ocular inspection of a crime scene. You cannot order the other party by way of a subpoena to bring with you a parcel of land in dispute. You cannot do that because it is incapable of being brought inside the court room. An ocular inspection of the court without the presence of the parties or without due notice to both of them is not valid because when you conduct an ocular inspection it is technically speaking part of the trial. Instead of bringing objects into the court room, the court is brought outside to examine the object.

3.) That which consist in experimentation -

Interesting na kaso. That is the importance of autoptic proference. That is the importance of object evidence.

Experimentation in evidence is that which requires the manipulation of the physical objects within or outside a courtroom to determine a fact in issue. So remember ha, experimentation can both be done inside or outside the courtroom.

a.) Examination inside the courtroom: Again. How many witnesses were they able to produce? 6 witnesses. All attesting to the fact that they sign in the presence of one another. I don’t know why nganu niabot ug six witnesses na turo ra man ang kinihanglan. All of them were saying that we signed in the presence of one another. But since autoptic proference speaks more eloquently than a hundred witnesses, it is autoptic proference that prevails. REMEMBER THIS CASE.

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Take note that autoptic preference is not limited to the view of the object. Dili lang kay magtan aw ka. It extends to visual, auditory, tactile, gustatory, and olfactory. Simply, it is sight, hear, taste, touch, and smell. Now there is this CLASSIFICATION OF OBJECT EVIDENCE. We need to take note of what they are. According to our noble author Moran,

Can the accused physically lift that in order to use it as a murder weapon? That is the experimentation. You manipulate an object inside a court room. -

1.) Those object evidence which consist in the exhibition or production of the evidence inside the court room. Examples: -

The accused, a frail and short individual, is charged of murdering Mateo by repeatedly bashing his head with a hammer. The defense asked the accused to raise the hammer and demonstrate to the court the impossibility of him using the hammer as a murder weapon. And the accused may also ask the court to hold the hammer and say “Bug-at ba, Judge?” Or ipagunit nimu sa prosecution. “Bug-at ba?”

Blood sampling like what happened in the case of PEOPLE VS. YATAR inside the courtroom in the presence of the counsel. It can be considered as an experimentation.

b.) What about experimentation outside the courtroom? Objects of the crime; kadtong gikawat then na retrieve so gipresent sa court to be identified

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In the crime scene. In order to view or appreciate what happened. You can conduct a re-enactment. That is allowed. Re-enactment is said to be

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

demonstrative evidence. You can do that outside of the court room. In the crime scene.

evidence, not proof beyond reasonable doubt. There goes the life and crime of ORIENTAL JAMES SIMPSON.

Now here is an example of evidence which consist in experimentation,” IF THE GLOVES DON’T FIT, YOU MUST ACQUIT.”

One thing you need to remember when you become lawyers, never present in court anything that would later on bring in unexpected consequences. If you don’t know what is going to happen never present it. Never ask a question that you never know the answer to yet. 

Are you familiar with this guy? (Sir shows the picture of O.J Simpson). He is a quintessential football player and an occasional actor. He gained a lot of fame due to different movies re-enacting what has transpired in the case of: PEOPLE VS. O.J SIMPSON OJ Simpson married Nicole Brown who is according to gossip is a very promiscuous individual,  Eventually, they say he is a wife beater. They were estranged from one another. Nicole began dating another man in the name of Rod Goldman. When both Nicole and Rod went home to the old conjugal dwelling of O.J and Nicole, someone attacked them via knife and killed them. The evidence found was blood splatters scattered all over the scene of the crime. After the police learned of the incident, they went to the house of O.J to supposedly inform him of what has happened to his wife. When they were at the house of O.J, there were traces of blood all. A bloody glove similar to what he is wearing then was found in the premises. The police retrieved it and packed it to be used as evidence. O.J had the Dream Team of the best defense criminal lawyers in the U.S including the Atty. Kardashian, the father of Kim Kardashian and her other slutty siblings  . It was said to be the trial of the century. In the course of the trial, the prosecution proposed that O.J will have to try the glove, which is experimentation. If maigo, it will engender a belief in the mind of the jury that he was wearing the gloves which was probably used during the commission of the offense. If it fits, it will leave a lasting impression on the jury. Hence,

Now, WHAT ARE THE REQUISITES FOR THE ADMISSIBILITY OF OBJECT EVIDENCE? We go back to the basics here. 1.) 2.) 3.) 4.)

It must be relevant to the fact in issue to the case It must be authenticated. It must not be hearsay Not privileged or not otherwise excluded by the law or the rules. 5.) It must meet any additional requirements set by the law. Requisite (1) - RELEVANCY Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. That is basic relevancy. In the case of: PEOPLE VS. RULLEPA, MARCH 5, 2003 A person's appearance, where relevant, is admissible as object evidence, the same being addressed to the senses of the court. QUESTION: Since we are talking here of relevancy, the probability or improbability of the fact in issue, when do you consider a fact in issue? The answer is simply when THERE IS A DISAGREEMENT of the parties which makes in an issue. Let us try to broaden our understanding a little bit. So what would be the fact in issue for prosecution for violation of R.A 9165 after a buy-bust operation? (Called a student)

But unfortunately the gloves did not fit. The gloves cannot even be closed.

That the SALE OF DRUGS HAS BEEN CONSUMMATED. The prosecution would want to approve it and the accused denies it.

So by reason of experimentation, what was the lasting impression that remained in the minds of the jury? That it does not fit. So, the lawyer of O.J pleaded to the jury the very the famous mantra which says:

Now remember that the requirement if relevancy answers the question of whether or not particular evidence is related to the fact in issue to a case. What do you think would be a good relevant evidence in the violation of R.A 9165?

“It does not fit, so, If the gloves don’t fit, you must acquit”

The DRUG ITSELF AND THE MARKED MONEY. It is because it proves that there is a sale. So you have to remember the requisites of a valid sale. (Consent, subject matter, and the price certain in money).

By reason thereof he was acquitted by the jury - by reason of the blunder by the prosecution in engaging in autoptic proference by experimentation. But later on, he was found out civilly liable for the wrongful death, awarding the families of the victims millions of dollars. The quantum of proof required is simply preponderance of

PEOPLE VS. DE LOS REYES (1994) The admissibility of the marked money in evidence is governed by Section 1, Rule 130 of the 1989 Rules on Evidence, which provides that when an object is relevant to the fact in issue, it may be

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LAW ON EVIDENCE exhibited to, examined or viewed by the court. The marked money, being the consideration paid for the shabu, was relevant to the fact in issue — the sale of shabu. According to Wigmore, OBJECT EVIDENCE LIKE ANY OTHER EVIDENCE MUST PASS THE TEST OF ADMISSIBILITY OR RELEVANCE AND COMPETENCY. Thus, if an object is excluded by the law or the rules such as the fruit of the poisonous tree doctrine, the object is not admissible. Likewise, autoptic proference must also be relevant, and it is relevant only when it makes a fact of consequence, more or less probable, in the absence of autoptic proference. Object evidence in itself does not establish factum probandum because there is no factum probandum solely by autoptic evidence.

based on the lectures of ATTY. JESS ESPEJO

By the way, why do we need to authenticate something? a.) To prevent the introduction of an object different form the one being testified about. o

b.) To ensure that there has been no significant changes in the objects original condition. o

What do I mean that there is no factum probandum? Example nay nabilin na kutsilyo. What does it prove by itself? Wala, kutsilyo lang siya. But you have to relate it to other factum probans like evidentiary facts or by circumstantial evidence. Kay kinsa na siya? Asa gikan ang kutsilyo? Asa gigamit ang kutsilyo? Until finally you can come up with a factum probandum that it was the accused that used the knife to kill the victim. See? There is no factum probandum that can be proved solely by object evidence. Daghan pa ka ug kinahanglan. Object evidence must, therefore, be supported by other propositions and in the ultimate analysis it must be proven that it has a logical relationship with the fact in issue. Remember that.

An exchange of evidence. Something innocent becoming incriminatory.

o

Example: in an ocular inspection, the court goes to the area to determine that there has been an encroachment in the property of the other. That is boundary dispute. But inig abot diay sa area kay wala nay encroachment. I have like a weird case before, in the hinterlands of Davao del Sur. It is a boundary dispute as to who own the mango tree. A crime of theft was charged against the employee of the owner of the adjacent land. So you need to determine who owns the mango tree. Settled ang case in the end. So in that situation, what if pag-abot didto there has been changes in the condition of manga? Diba?

So what I am going to tell you now is something that you need to remember. WHAT IS THE PROCESS OF AUTHENTICATING OBJECT EVIDENCE?

Requisite (2) - AUTHENTICATION

1.) Produce proof of the identity of the object.

Authentication only means that the genuineness of the object must be proven. It requires that the admission of an object must be preceded by evidence sufficient to support a finding that the object in question is what it purport or claims it to be.

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It is quite mouthful to read and understand. So let us simplify everything. So when you authenticate something, what in essence you are trying to do? You are trying to prove to the satisfaction of the court that the object is what it purports to be. What it is offered for. So if it is a knife used in an unlawful killing, you are going to authenticate it by trying to prove that it was used in the killing, that it was the very murder weapon. That is authentication. What else do you need to do? You have to prove it by evidence sufficient to support the finding that the object is what it claims or purport to be. That will be a little bit tricky. We are going to explain that later on kung unsa na.

When there are peculiar characteristics or when there are markings, all you have to do is to readily identify the object. Because you know the peculiar characteristic and you also know of the marking, you are the one who placed the marking. 2.) Proof of the integrity of the object. -

I invite you to look at your Rules of Court and try to find a provision in the rules of evidence relating to authentication of objects. If you look documentary evidence, there are rules there as to the authentication and proof of documents. But for object evidence, actually the rules are not quite clear.

How do you prove that? By the testimony of the witness as to objects that are readily identifiable by sight, provided there is a basis for identification by the witness. This may either be markings, place of the witness in the object such as his initials, his pictures in the digital cameras, or by peculiar characteristic of the objects. For example, by certain physical features which sets it apart from others from the same kind or class by which is readily identified like a hole in a sweater caused by burning or a knife na nabali ang gunitanan.

It is where you now have the need to look at the chain of custody in the event the object is passed on to different persons.

An example of that is Section 21 of R.A 9165. Daghan kayo requirements but these requirements are intended to ensure a proper chain of custody in the handling of the dangerous drugs. We will deal to that later on. But in the onset, let me just tell you that the process of authentication in Republic Act 9165 actually happens outside of the courtroom because eventually, it is no longer brought inside the courtroom kay diba there is that requirement na dapat i-

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LAW ON EVIDENCE destroy, or sunogon. So all that you have will be the measurements, the photographs of the dangerous drugs. . Let us try to simplify that; you need to account for every step that took place or every chain or link in the chain of custody for retrieval for presentation of evidence. All the links must be accounted for and that would now be proof of the identity of the object evidence. When the object passed into the possession of the stranger, or somebody who had no right to hold the object, there is doubt as to the integrity, and worse the identity of the object, because now you can tamper with the object evidence. For example: a sachet of drugs came into the possession of a stranger who changed it with a VETSIN or TAWAS. Proof of integrity also by proving the proper preservation of the object which consists of showing that the object was kept in a secured place as to make contamination or alteration difficult and it has not been brought out until its presentation in the court. Example: In O.J Simpson case, the blood samples, stains seen in the scene of the crime. What he police investigator or the forensic team did when they get to the scene of the crime was to photograph and retrieve samples for later analysis sa kung kay kinsang dugo ang nakita. The prosecution is trying to prove that the blood seen in the scene of the crime belongs to O.J Simpson. Why do they need to do that? Because it places him at the scene of the crime contrary to what he was saying that he was not there. An alibi. So why would his blood be there where in fact he was not the victim? So possible na nagsukol ang victims and caused him to lose some blood. But the defense was able to prove the fact na pagkakuha sa blood, gibutang sa iyang bulsa, niuli ug balay, natulog, naligo unya gisulod balik ang jacket, balik sa laboratory. Kadto pa niya gipa analyze. So the integrity of the evidence can be suspected in that situation. It was not kept in a secured place to prevent contamination or alteration. So that is proof of integrity. What you need to do is prove the identity and integrity of the object for authentication of object evidence. Now take note that for specific objects, naa tay mga specific process of authentication: A.) Photographs, pictures, maps, diagrams- (Example- illegal structures constructed in the land of Atty. Espejo’s client. Photographs were presented to prove it. ) o

Authenticity is the act of proving the accuracy of the things, persons, or places in the photograph which may be through the testimony of the photographer or anyone familiar with the person, places, or things shown therein.

based on the lectures of ATTY. JESS ESPEJO

SISON VS. PEOPLE, NOVEMBER 16, 1995. In a prosecution for murder, the prosecution presented photographs showing the accused mauling the victim. Gikuhaan ug picture. Unya kadtong picture nato mao na to ilang gibuhat na ebidensya to prove that they are the ones who mauled the victim. The person who took the photographs was not presented as a witness. Instead, the prosecution presented the companions of the victim who testified that they are the ones in the photographs. The defense objected the admissibility of the photographs because the person who took the photographs was not presented as the witness. Would that contention be tenable? No. The general rule in this jurisdiction is that photographs, when presented in evidence, must be identified by the photographer as to its production and testified as to the circumstances under which they were produced. The value of this kind of evidence lies in its being a correct representation or reproduction of the original, and its admissibility is determined by its accuracy in portraying the scene at the time of the crime. The photographer, however, is not the only witness who can identify the pictures he has taken. The correctness of the photograph as a faithful representation of the object portrayed can be proved prima facie, either by the testimony of the person who made it or by other competent witnesses, after which the court can admit it subject to impeachment as to its accuracy. Here the photographs are admissible as the correctness thereof is testified thereto by the companions of the victim. So nakita nila na uy ako ni, akoa na kauban kanang naa sa picture. So according to the Supreme Court, that is enough authentication, no need to present the photographer. B.) Tape Recording TORRALBA VS. PEOPLE The accused here is charged with libel. Presented as evidence is a tape recording of the radio broadcast made by the daughter of the complainant. Meaning, habang ginabroadcast, giingnan sa complainant iyang adopted daughter to record it. The daughter was not presented as a witness. Only the complainant who, in open court, testified that he was not familiar with the process of the recording. When he was asked what was the process of recording, he said that he does not know. So is the tape recording properly admitted?

Who can authenticate a photograph? General Rule: The one who took the photograph, the photographer.

According to the Supreme Court, the person who actually took the recording must be presented in order to lay the foundation for the admission of the tape recording.

Exception: Anyone who is familiar with the persons, places, or things shown can testify if it is already impossible for the photographer to authenticate. 3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.

LAW ON EVIDENCE In our jurisdiction, it is a rudimentary rule of evidence that before a tape recording is admissible in evidence and given probative value, the following requisites must first be established, to wit: 1) a showing that the recording device was capable of taking testimony; (2) a showing that the operator of the device was competent; (3) establishment of the authenticity and correctness of the recording; (4) a showing that changes, additions, or deletions have not been made; (5) a showing of the manner of the preservation of the recording; (6) identification of the speakers; and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement C.) Videos -

It is a lot easier than authenticating tape recording. You just have to authenticate it just like authenticating photographs. Mubalik lang ta sa doctrine sa Sison vs. People. It can be the videographer, who will be presented or anyone competent, according to the Supreme Court. Any other witness who can testify as to its exactness and accuracy.

based on the lectures of ATTY. JESS ESPEJO

Now chain of custody is important when you are trying to authenticate. But in trying to prove chain of custody, what you are actually trying to do is to present circumstantial evidence or evidence on collateral matters. They do not bear directly on the object but it relates on the circumstances in handling the object. So mao na ang chain of custody. It is necessary to raise the chain of custody when the object evidence is not unique as it is not readily identifiable or was not made under the trial identified or cannot be made identifiable. Example: blood, it came from the crime scene. Oil, drugs in powder form, fiber, grains of sand, and other similar objects. So how do we mark them? We can mark them without actually trying to destroy the integrity of the object. So ang importantly dira is you should be able to prove the chain of the custody. Now take note that chain of custody is important because it prevents tampering or exchange of evidence. Remember, because they are non-unique objects, they belong to a class that can be easily replaced by something else. The purpose again is to guarantee the integrity of the evidence and to prevent the introduction of evidence which is not authentic. But when the exhibit is positively identified because it is capable of positive identification, the chain of custody of the object evidence is no longer significant. Nganu? Kay identified na man. Most especially kung identified in court. So now it will be part of the records of the court, so there is no longer a need to explain the chain of custody in certain situations. Requisite (3) - MUST NOT BE HEARSAY

For purposes of authentication, object evidence can be of three classes: a.) Unique Objects or those who have readily identifiable marks. o

Example: A car with a plate number: MGA239, or a 45-caliber pistol with serial number 14344. So these are identifiable marks. It sets them apart from all others of the same class. It has been segregated already.

The witness who testified about the object must have personal knowledge of it. For example ang imung gidala sa courtroom as your evidence would be a can of sardines. Whose can of sardines is that? Does it belong to the witness? Kung wala silay relasyun, well that is hearsay. He/she must have the personal knowledge over the can of sardines. Requisite (4) - MUST NOT BE PRIVILEGED OR NOT OTHERWISE EXCLUDED BY THE LAW OR THE RULES It means that the object must pass the axiom of competency.

b.) Objects made unique. By nature they are not unique but they can be made unique. o

An example is a bolo knife made as a killing knife which could be identified by a witness testimony. Nganu man nay nag-identify? Because it is made unique. It is no longer a bolo but it is already that bolo.

c.) Non-unique objects - There is no way that they can have identifying marks and cannot likewise be marked. Perfect example is footprints left at the crime scene which was also a piece of evidence in the O.J Simpson case. Naay shoe print didto. They were trying to prove na ang shoe print nga to kay Simpson but it was already disregarded.

For example, wiretap recording proposed to be played in court. Dili pwede because that is not a competent evidence. So kung ing ana imung evidence, it is excluded by the law and the rules, it cannot be presented as evidence. Now, according to Edmund Locard’s Evidentiary Exchange Principle, when you go to the crime scene, you leave traces behind. So if you are the attacker, you leave something with you behind like hair, skin samples and sometimes blood samples. In a crime of rape and where there is seminal discharge, you leave your seed, magbilin gyud ka ug biological sample. So how do you now determine whether the biological sample is really that of the accused? So the means where the agent of the State may resort to is to get a sample from you. To compare it with what was left in the crime scene.

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LAW ON EVIDENCE So the question is would the blood samples taken from the accused violate his right to remain silent and his right against selfincrimination where, you cannot be compelled to be a witness against yourself? Would it be incriminating, if you will supply that last link to get the verdict? THE ANSWER OF COURSE IS IT WILL NOT VIOLATE THE RIGHT. The carnal of the right is not all compulsion but against testimonial compulsion. The right against self-incrimination is simply the legal process of extracting from the lips of the accused an admission of guilt. It does not apply when the evidence sought to be admitted is not incrimination but as part of object evidence. The Supreme Court here confirms that when a biological sample is taken from you, it is object evidence. Therefore, there cannot be any incrimination. Hence, a person may be compelled to submit to finger printing, photographing, paraffin, blood and DNA as there is no testimonial compulsion. This case of People vs. Yatar actually paved the way for the use of DNA evidence in the Philippines. In the U.S and in other countries, dugay na nila ginagamit ang DNA, even during the time of O.J SImson. 1990’s ni na kaso. They were using DNA profiling already and DNA tests to determine the probability and improbability of guilt. In People vs. Yatar, the Supreme Court actually mentioned it. DNA is part of object evidence. Therefore, there cannot be any violation of the right against self-incrimination. After the case of People vs. Yatar, the Supreme Court already came out with the Rule on DNA evidence. In an attempt to exclude the evidence, the appellant here contends that the blood samples taken from him as well as the DNA testing conducted is in violation of his right to remain silent and his right against self-incrimination. But that contention is untenable. Pwede ka ma compel. That’s what the case is saying. When you say right against self-incrimination, what acts does it cover? It covers all acts that would incriminate the accused but it excludes acts which are purely mechanical or purely physical. Ingani akong pangutana, if you are the accused, then the judge will say. “How did you rape the victim? You simulate raping the victim there.” Can you do that? Can that be considered as incrimination? For example, a hand writing. Can a person be compelled to produce a sample of his handwriting to determine his liability as the author of a certain document? So ang issue didto kay kadtong pagpasulat sa imuha, is it a testimonial compulsion or is it a purely mechanical act? No. Writing is not a merely a mechanical act. It is produced through the use of an intellect. It involves the application of your intellect. When you are using intellect it is not anymore a purely mechanical act. If the accused, however, testifies in his own behalf and denies ownership, he may be compelled to produce a sample. In that situation, it is better for the accused not to testify, not to take the witness stand altogether.

based on the lectures of ATTY. JESS ESPEJO

PEOPLE VS. WILLIAM, JUNE 15, 1992 Would object evidence would still be admissible on the premise that it is beyond the commerce of man? Let us go back to Sales again, diba there is this requirement, that the subject matter in the contract of sale should be licit. So, what is a sample of a subject matter that is illicit? Of course narcotics under R.A 9165, human body it cannot be sold, dynamites, explosives, rare wild birds, rare mammals, wild plants, In this case, what he wanted to be excluded as object evidence is marijuana. He contends that it is inadmissible as it is beyond the commerce of man. How did the Supreme Court Rule? Quoting with approval the Solicitor General. According to Supreme Court: P.L Pataka lang ka. The probative value of the evidence is not affected by the fact that it is beyond the commerce of man. Appellants raised the strange argument that it does not have the probative value, because the subject thereof, marijuana, is beyond the commerce of man. This is untenable.

PEOPLE VS. ADULAY, SEPTEMBER 6, 2008 The "objective" test in scrutinizing buy-bust operations. In People v. Doria, we said: We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that lawabiding citizens are not unlawfully induced to commit an offense. Atty JZE: If you look at it, it is like the Supreme Court is trying to establish the elements of a sale. There is an offer; there is acceptance of the price, until consummated by the transfer of the illegal drugs. Imporatante nimu ipakita ng consideration, the drug money and the drugs itself.

PEOPLE VS. BRECINIO, MARCH 17, 2004 Mateo is charged for the murder of Gerald. After trial, Mateo was found guilty as charged. On appeal, Mateo argued that the trial court should have acquitted him as the lower court has not proved his guilt beyond reasonable doubt. He argues that the paraffin test conducted on him two days after he was arrested yielded a negative result. Hence, he could not have shot Gerald.

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

Let us review our concepts a little bit here. Specifically with respect to object and admissibility of the evidence:

Is Mateo Correct? No. Likewise, while the paraffin test was negative, such fact alone did not ipso facto prove that the appellant was innocent. Time and again, we have held that a negative paraffin result is not conclusive proof that a person has not fired a gun. Stated otherwise, it is possible to fire a gun and yet be negative for nitrates, as when the culprit is wearing gloves or he washes his hands afterwards. Since appellant submitted himself for paraffin testing only two days after the shooting, it was likely he had already washed his hands thoroughly, thus removing all traces of nitrates therefrom. Atty JZE: Kanang result sa paraffin test unsa man na? That is experimentation. The fact that you are subjected to paraffin test and result ingun ana is an object evidence by experimentation. Remember that case. Requisite (5) - OBJECT REQUIREMENTS BY LAW

EVIDENCE

MUST

MEET

OTHER

Section 21 of Republic Act 9165. CHAIN OF CUSTODY REQUIREMENT IN DRUGS CUSTODY CASES. But, why is it seen as an additional requirement under the law? Under ordinary chain of custody, it does not require photographing, the presence of a barangay official, or presence of the members of the media. Walay ingun ana. It is just in drugs cases. That is a specific requirement in dangerous drugs cases. REVIEW: FIVE REQUIREMENTS FOR THE ADMISSIBILITY OF OBJECT EVIDENCE 1.) 2.) 3.) 4.)

Relevant; Must be authenticated; Must not be hearsay; Must not be privileged or excluded by law or evidence; 5.) Must meet additional requirements set forth by the law; LOPEZ VS PEOPLE (2008) As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.

1.) Take note that Object evidence is the evidence of the highest order as it speaks a little more eloquently than a hundred of witnesses. 2.) Remember also that no object evidence must be admitted unless it is identified by a competent witness. All evidence that must be presented must be sponsored evidence. There has to be a witness testifying in court otherwise the same cannot be settled in court. When can the presentation of evidence be dispensed with and replaced by mere testimony or documents? a. If its exhibition is contrary to public morals or decency. b. To require being viewed in court or in ocular inspection would result in delays, inconvenience, or unnecessary expenses which is not in proportion to the evidentiary value of such object. c. Such object evidence would be confusing or misleading as when the purpose is to prove the former condition of the object and there is no preliminary showing that there has been no substantial change in the said condition; which is applicable to ocular inspections; or d. The testimonial or documentary evidence already presented clearly portrays the object in question as to render the view thereof unnecessary. e. Where the existence of the object is not very the fact in issue but is merely a collateral fact, or is merely used as reference. Examples: 1. When a witness testifies that the accused was drinking a bottle of gin. When he threatened to shoot the witness, it is not necessary to produce the bottle. 2. The witness claims that the accused threw a stone at his car, the presentation of the stone is not anymore necessary. 3. Where the article cannot be recovered or outside the coercive jurisdiction of the court. PEOPLE VS TAGUBA 342 SCRA 199. In cases involving the illegal possession of firearms, the prosecution has the burden of proving (a) the existence of the subject firearm, and (b) the fact that the accused does not have corresponding permit to possess. As to the first requisite the evidence can be best established by the presentation of the firearm but there is no requirement that the actual firearm itself must be presented in court. It is not fatal if the prosecution did not present the firearms itself. Its existence can be established by a testimony.

3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.

LAW ON EVIDENCE Where the articles however are not common or not familiar to ordinary persons, and cannot be identified by sight, they must be presented in court. Other limitations: 

The admission of the object evidence is subject to the demands of decency and propriety, unless the admission is extremely necessary.

based on the lectures of ATTY. JESS ESPEJO

We are done with object evidence. Let us know a little bit about documentary evidence. Section 2. Documentary evidence. — Documents as evidence consist of writing or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents. (n) Distinction between object evidence and documentary evidence. *Atty. Espejo called Ms. Glorybelle Resurreccion and gave her a stone

Examples: Exhibition of the private parts in sex cases. Alangan muingun si judge the court is interested on how you commit it. Diba? 

Atty. Espejo:

Does it smell good?

Presentation of the corpse or disembodied body parts.

Glorybelle:

It does not smell anything.

Re-enactment of violent/ offensive acts. (Halimbawa, Mateo raped Maja. His defense that he did not rape Maja is because he is incapable of an having an erection. He maintains that rape for him is an impossible crime due to the fact that his manhood is an ineffectual means to commit the crime. So can the judge say na ”Show me that it is really ineffectual”? The judge cannot do that. The judge cannot ask Mateo to experiment on himself.

Atty. Espejo:

Meaning it is clean. Can you please describe to me the stone’s physical attributes?

Glorybelle:

Black, roundish, smooth, and the weight is 30ish grams. 

Atty. Espejo:

So by its physical attributes, it is always an object. So it cannot be a document. Right? Now turn over the stone. Read what is written there.

Glorybelle:

“Pay to B or his order, P 50,000, signed A”

Atty. Espejo:

So if you are trying to propose this for an admission in court and you want to prove what it looks like, how much it weighs (30ish grams), it is an object.



Objects which are offensive to man’s sensibilities or repulsive objects should not be presented anymore. Waste matters like human excreta, corpses of dead animals, or killing of an animal to prove that the substance is poison. You can just have a chemical analysis of it. Have a chemist testify for it. No need for experimentation.

While obscene or indecent objects are no longer needed to be presented in court, there may be instances where they may be permissible to be exhibited. 

But despite it being an object, being a stone, if there is something written on it, it makes it a documentary evidence. So do not look at documentary evidence from the point of view of material, whether it is papyric or non-papyric in nature. Even if it is not in a paper, it can still be considered as a document.

If a view of the object is necessary in the interest of justice, such object may still be exhibited. But the court may exclude the public from such view. The view may not be refused if the indecent or immoral objects constitute the very basis of the criminal or civil action (e.g obscene pictures or exhibits).

It happened to me. I was a collaborating counsel in a case I handled in Cebu. The guy was cheating on his wife. Case for concubinage was actually filed against him since there was no anti-VAW-C law at that time yet. The ground was there was sexual intercourse with a woman not his wife under scandalous circumstances. The only proof that we presented was the sex-tape in VHS. So how do you attach that to the complaint? Of course you need to replay, get screen shots out of it. That is what you attach. But that will not really prove whether carnal knowledge was indeed under scandalous circumstances. So I was the one who presented the evidence, and the evidence was the video tape. So there was a question, “Your Honor, is there a need to present the evidence in court considering that it contains an obscene and indecent show? “ But the court said, IN THE INTEREST OF JUSTICE, WE WILL WATCH THE VIDEO TAPE. So all the lawyers, together with the judge, went to his chamber. We watched the videotape to determine whether or not it is scandalous. 

I will give you an example which happened in Germany. When a man is about to die in an accident, at his body he wrote using the blood flowing from him “ALL TO WIFE”. So meaning he is giving all his property to his wife. That can be perceived as a document. Atty. Espejo:

I have here another object. A crumpled paper. What are its attributes? Of course it is rough, 10ish grams, but because it is paper, it is possible na pwede siyang sulatan. Let us try to open and see what is written in the crumpled paper. I think there is a story on it and it is addressed to me.

“DEAREST ATTY. ESPEJO:

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

I PROMISE TO PAY YOU MY DEBT AMOUNTING TO P100, 000. I PROMISE ALSO TO LOVE YOU FOREVER. XXXX” Atty. Espejo:

So what does it say? If it is crumpled, does it prove anything else? No. What about the contents? It proves na naa siyay utang kay Atty. Espejo.

Conclusion: Despite the fact that it is papyric in nature, it does not have to be documentary evidence. Perfect example there is money. Is the serial number of the money relevant to the fact in issue? No. Therefore, money, generally, is an object. QUESTION: IS THERE AN INSTANCE WHERE A DOCUMENT CAN BE TREATED AS AN OBJECT? OR OBJECT TREATED AS A DOCUMENT? Yes. So if a document is presented to present its physical characteristics, regardless of what it is, it is object evidence. But, if it is used to prove anything written upon it, it is documentary evidence. What matters therefore is the INTENT. What do you intend to do, that’s what it is. So the writing or material must prove its contents in order for it to qualify as documentary evidence. Note that for the evidence itself to be considered as documentary, it is not dependent on the material for writing. For this reason, a non-papyric material may be considered documentary evidence. BAR QUESTION (1994) At the trial of A for the violation of Dangerous Drugs Act, the prosecution offered in evidence a photocopy of the marked P100bills used in the buy-bust operation. A objects the presentation of the photocopy on the ground that the Best Evidence Rule prohibits the introduction of the secondary evidence in lieu of the original. Can the photocopy be admissible as evidence? It boils down now on whether it is documentary or an object evidence. If it is documentary evidence, the Best Evidence Rule applies. If it is not, no need to apply the Best Evidence Rule. The answer is the photocopy is object evidence. It is not documentary evidence because it is not offered as proof of its contents. Being object evidence, Best Evidence Rule does not apply. BAR QUESTION (2005) Q: May a private document be offered, and admitted in evidence both as documentary evidence and object evidence? Suggested Answer: Yes. A private document can be admitted both as documentary evidence and object evidence. A document can also be considered as an object for purposes of the case. Objects as evidence are those addressed to the senses of the court. (Section 1, Rule 130)

Documents as evidence consist of writing or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents. (Section 2, Rule 130) Hence, a private document may be presented as object evidence in order to establish certain physical characteristics that are visible on the paper and writings that comprise the document.

July 22, 2016 Atty. Espejo: Read all of the decided cases after the effectivity of the DNA Evidence Rule up to the latest case of Poe-LLamanzares vs. COMELEC. But take particular attention only to the Separate Opinion of Chief Justice Sereno. The main opinion of the Court did not mention DNA evidence but only the Separate Opinions of Sereno, Carpio and Jardeleza. DNA EVIDENCE What is DNA? “DNA” means deoxyribonucleic acid, which is the chain of molecules found in every nucleated cell of the body. The totality of an individual’s DNA is unique for the individual, except identical twins “DNA Evidence” constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples. Interesting Facts: 1. 97% of our DNA is considered JUNK DNA, or components with no known biological functions 2. Chimpanzees are 96% to 98% similar to humans, depending on how it is calculated. 3. Cats have 90% of homologous genes with humans, 82% with dogs, 80% with cows, 79% with chimpanzees, 69% with rats and 67% with mice. 4. Cows are 80% genetically similar to humans. 5. 75% of mouse genes have equivalents in humans, 90% of the mouse genome could be lined up with a region on the human genome, 99% of mouse genes turn out to have analogues with humans 6. The fruit fly (Drosophila) shares 60% of its DNA with humans. About 60% of the chicken genes correspond to a similar human gene. How similar is the DNA of one person with another?  Genome-wide variation form one being to another can be up to 0.5% (99.5% similarity) Q: Given this similarity, how accurate can DNA evidence be in identifying a possible perpetrator and excluding others? A:Pretty accurate. The set of chromosomes in a cell makes up its genome; the human genome has approximately 3 billion base pairs of DNA arranged into 46 chromosomes. According to the FBI, the chance of misidentification is 1 in a billion. No two persons have identical DNA except with respect to identical twins Edmund Locard (1877-1966) Dr.Locard was a pioneer in forensic science who became known as the Sherlock Holmes of France. He formulated the basic principle of

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

forensic science: “Every contact leaves a trace.” This became known as the Locard’s exchange principle.

Determination of Parentage and Pedigree: The Russian Imperial Romanov Family

Locard’s Exchange Principle: "Wherever he steps, whatever he touches, whatever he leaves, even without consciousness, will serve as a silent witness against him. Not only his fingerprints or his footprints, but his hair, the fibers from his clothes, the glass he breaks, the tool mark he leaves, the paint he scratches, the blood or semen he deposits or collects. All of these and more, bear mute witness against him. This is evidence that does not forget. It is not confused by the excitement of the moment. It is not absent because human witnesses are. It is factual evidence. Physical evidence cannot be wrong, it cannot perjure itself, it cannot be wholly absent. Only human failure to find it, study and understand it can diminish its value."

After the Bolshevik Revolution in Russia, deposed Tsar Nicholas II, his wife and five children were executed by the Bolshevik Troops upon orders of Lenin on July 17, 1918.

Atty. Espejo: What Locard is saying is that DNA, biological samples, [or] all other object evidence that might be found in the crime scene, that is the best evidence. That is the best witness because that type of witness will not lie. Purposes of DNA Evidence  Identification (unidentified corpses in airplane crashes, decomposed murder victims, for example)  Determination of parentage and pedigree (paternity and maternity testing)  Criminal Investigation (inclusion and elimination of suspect by the police in building a case) Criminal Prosecution, in which DNA could be used to convict perpetrators of crime as well as to exonerate innocent individuals. This makes DNA evidence either:  Inculpatory  Exculpatory DNA IN THE COURSE OF HISTORY DNA for Identification: Josef Mengele a.k.a. The Angel of Death, a Nazi Officer during WWII. Mengele, a psychopath, was a notorious member of the team of doctors responsible for the selection of victims to be killed in the gas chambers and for performing deadly human experiments on prisoners. His experiments:  Twin boy toddlers were sewn together so Mengele could investigate how Siamese twins behaved.  In another case, one twin was infected with TB then both were killed so Mengele could observe the different pathology.  Twin girls were forced to have sex with a pair of male twins and, if they got pregnant, kill them and remove the embryos for study. So, Germany fell, Mengele fled and eluded capture.Decades into the manhunt for Mengele, there were alleged sightings of him as late as 1985 In 1969, a man named Wolfgang Gerhard drowned in Brazil and was buried there. Blood specimens from Mengele’s wife and son were used to reconstitute Mengele’s DNA pattern. In 1992, the remains of Gerhard were confirmed to be those of Mengele.

They were all buried in unmarked graves for fear of desecration. Rumors persisted, however, that the youngest daughter, Anastasia had survived and escaped Russia. Survival of a member of the Royal family could have been used as a rallying point by anti-Bolshevik groups to depose the new communist regime. Then, in 1920, a woman named Anna Anderson surfaced in Germany claiming to be “lost” Romanov heiress, Anastasia. In 1991, the bones of the Romanov family were discovered and verified through DNA matching with a relative, Prince Philip, husband of Queen Elizabeth II. By that time, Ann Anderson was already dead. A sample of Anderson’s tissue, part of her intestine removed during her operation in 1979, had been stored at Martha Jefferson Hospital, Charlottesville, Virginia. Anderson’s mitochondrial DNA was extracted from the sample and compared with that of the Romanovs and their relatives. It did not match that of the Duke of Edinburgh or that of the bones, confirming that Anderson was not related to the Romanovs. DNA in Criminal Prosecution Between 1983 and 1986, two 15-year old girls were separately raped and murdered. The modus operandi of the crimes were similar. Semen samples obtained from the bodiesreavealed that there was only one assailant. The main suspect was Richard Buckland, a 17-year-old youth with learning difficulties, who revealed knowledge of one of the girls’ body, and admitted the crime under questioning, but denied the first murder. Having no solid lead on the crimes, investigators turned to Sir Alec Jeffreys. Jeffreys is a British geneticist, and the man credited for developing techniques for DNA fingerprinting and DNA profiling which are now used worldwide in forensic science to assist police detective work and to resolve paternity and immigration disputes. Jeffreys compared semen samples from both murders against a blood sample from Buckland which conclusively proved that both girls were killed by the same man, but not Buckland. Buckland became the first suspect in the world to be exonerated by the use of DNA evidence. The police then undertook an investigation in which 5,000 local men were asked to volunteer blood or saliva samples. This took six months, and no matches were found. Then, in 1987, the police discovered that one man, Colin Pitchfork had paid his co-worker to give a DNA sample while posing as him. After collecting a DNA sample from Pitchfork, the authorities were able to make a positive match with the semen samples.

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LAW ON EVIDENCE He was sentenced to life imprisonment and concurrent terms for rape and murder. Thus, as early as 1984, the use of DNA as evidence in cases had been accepted internationally. What about the Philippines? First mention: PEOPLE vs. TEEHANKEE, JR. (GR Nos. 111206-08, Oct. 6, 1995) The appellant was convicted of murder on the testimony of three eyewitness, the Supreme Court stated as an obiter dictum that “while eyewitness identification is significant, it is not as accurate and authoritative as the scientific forms of identification evidence such as the fingerprint or DNA testing”. Atty. Espejo: As early as 1995, the Supreme Court was aware that DNA testing is an emerging prosecutorial and investigative tool in other countries. PE LIM vs. CA (GR No. 112229, Mar. 18, 1997) DNA, being a relatively new science, it has not as yet been accorded official recognition by our courts. Paternity will still have to be resolved by such conventional evidence as the relevant incriminating acts, verbal and written, by the putative father. Commentary: Relatively new? This paternity case held against a putative father on the basis of love letters which were taken as admissions against him. The SC was hesitant to give recognition to DNA testing to provide evidence in the resolution of a case. ANDAL vs. PEOPLE (GR No. 138268, May 26, 1999) There are three gang rapists here. After being convicted of rape and sentenced to the death penalty, the accused asked for DNA testing as a means to reverse their conviction. If the testing proved negative, they propose that they should be acquitted. Held: The issue of DNA tests as a more accurate and authoritative means of identification than eye-witness identification need not be belabored. The accused were all properly and duly identified by the prosecutions principal witness. OlimpioCorales, a brother in law of accused Jurry and Ricardo Andal. DNA testing proposed by petitioners to have an objective and scientific basis of identification of semen samples to compare with those taken from the vagina of the victim are thus unnecessary or are forgotten evidence too late to consider now. Atty. Espejo: The SC here placed and imprimatur on eye-witness identification rather than scientific means of ascertaining identity. PEOPLE vs. PENASO (GR No. 121980, Feb. 23, 2000) In November 1989, Penaso allegedly raped his daughter’s classmate. The victim became pregnant and gave birth on July 16, 1990 or eight months later. After being convicted and on appeal to the Supreme Court, Penaso asked for DNA Testing to determine if he was really the father of the child. If the result came out negative, he proposes that he should be acquitted. Held: Pregnancy is not an element of rape. The issue of "DNA tests" as a more accurate and authoritative means of identification than eye-witness identification need not be

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belabored. The accused was properly and duly identified by the prosecutions principal witness. Atty. Espejo: In this case, it was stated by the victim in the information that by reason of the rape, she got pregnant. It is an important factual allegation that if refuted by the accused, would put reasonable doubt in the case. SC reiterated its ruling in Andal case. PEOPLE vs. FAUSTINO (GR No. 129220, September 6, 2000) Decided a few months after Penaso. This is a case for robbery with homicide. In an obiter, the SC revisited Teehankee stated that: “An eyewitness identification, which authors not infrequently would describe to be ‘inherently suspect,’ is not as accurate and authoritative as the scientific forms of identification evidence like by fingerprint or by DNA testing.” TIJING vs. CA (GR No. 125901, March 8, 2001) The Supreme Court opened the possibility of admitting DNA as evidence of parentage. The Court issued a writ of habeas corpus against respondent who abducted petitioner’s youngest son. Testimonial and documentary evidence and physical resemblance were used to establish parentage. However, the SC noted: “Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and child are analyzed to establish parentage. Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress. Though it is not necessary in this case to resort to DNA testing, in future it would be useful to all concerned in the prompt resolution of parentage and identity issues.” Note: In the Philippines, it was only in 2002 where the SC used DNA evidence in convicting the accused beyond reasonable doubt in the case of: PEOPLE vs. VALLEJO (GR No. 144656, May 9, 2002) (This is the first case that the SC convicted the accused on the basis of DNA Evidence. After this case was decided, the SC kept on asking for DNA evidence on related cases. This case also paved way to the new Rule on DNA Evidence. This is a very important case.) Vallejo was charged with raping and murdering a 9-year-old child. The victim’s DNA samples from the bloodstained clothes of the

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

accused were admitted in evidence. Also, the DNA profile from the vaginal swabs taken from the rape victim matched the accused’s DNA profile. The high Court affirmed the accused’s conviction of rape with homicide and sentenced him to death.

Changing Tide: After a period of hesitation, the SC was beginning to as for DNA evidence.

Held: DNA is an organic substance found in a person’s cells which contains his or her genetic code. Except for identical twins, each person’s DNA profile is distinct and unique.

This case involves a complex crime of rape with homicide.

When a crime is committed, material is collected from the scene of the crime or from the victim’s body for the suspects DNA. This is the evidence sample. The evidence sample is then matched with the reference sample taken from the suspect and the victim. The purpose of DNA testing is to ascertain whether an association exists between the evidence sample and the reference sample.

PEOPLE vs. JANSON (GR No. 125938, April 4, 2003)

The SC acquitted the accused charged with rape for lack of evidence because “doubts persisted in our mind as to who were the real malefactors. Yes, a complex offense had been perpetrated but who were the perpetrators? How we wish we had DNA or other scientific evidence to still our doubts!”

PEOPLE vs. JANSON (GR No. 125938, April 4, 2003) This case involves a complex crime of rape with homicide.

The samples collected are subjected to various chemical processes to establish their profile. The DNA test may yield THREE possible results (Possible Bar Question): 1) EXCLUSION. The samples are different and therefore must have originated from different sources. This conclusion is absolute and requires no further analysis or discussion; 2) INCONCLUSIVE. It is not possible to be sure, based on the results of the test, whether the samples have similar DNA types. This might occur for a variety of reasons including degradation, contamination, or failure of some aspect of the protocol. Various parts of the analysis might then be repeated with the same or a different sample, to obtain a more conclusive result; or 3) INCLUSION. The samples are similar, and could have originated from the same source. In such a case, the samples are found to be similar, the analyst proceeds to determine the statistical significance of the similarity. Atty. Espejo: If it is a result of exclusion, you do nothing further. If inconclusive, it calls for additional testing. If inclusion, for example, the semen taken from the scene matches that of the sample given by the accused, does not mean automatic conviction. It has to go through further analysis. The possible margin of error should be [accounted to?]. In assessing the probative value of DNA evidence, therefore, courts should consider, among others things, the following data: 1. How the samples were collected; 2. How they were handled; 3. The possibility of contamination of the samples; 4. The procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests; and 5. The qualification of the analyst who conducted the tests. WHEREFORE, in view of all the foregoing considerations, the decision of the Regional Trial Court, Branch 88, Cavite City, finding accused-appellant Gerrico Vallejo y Samartino alias Puke GUILTY beyond reasonable doubt of the crime of Rape with Homicide and sentencing him to the supreme penalty of DEATH and directing him to indemnify the heirs of the victim in the amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages, is hereby AFFIRMED.

The SC acquitted the accused charged with rape for lack of evidence because “doubts persisted in our mind as to who were the real malefactors. Yes, a complex offense had been perpetrated but who were the perpetrators? How we wish we had DNA or other scientific evidence to still our doubts!” PEOPLE vs. MOJELLO (GR No. 145566, Mar. 9, 2004) The cause of death as cardio-respiratory arrest due to asphyxiation and physical injuries; she was strangled to death and left on the seashore as manifested by the frothing in her lungs. No physical, scientific or DNA evidence was presented to pinpoint appellant as the person who killed the victim. Thus, appellant cannot be convicted of rape with homicide considering the insufficiency of evidence which thereby created a reasonable doubt as to his guilt for the said special complex crime. Appellant should instead be held liable only for the crime of statutory rape, the victim LenlenRayco being then eleven years old. PEOPLE vs. YATAR (GR No. 150224, May 19, 2004) (Bar Question) Yatar was convicted of the crime of Rape with Homicide. Testing showed that the DNA of the sperm specimen from the vagina of the victim was identical the semen to be that of appellant’s gene type. Held: In Daubert v. Merrell Dow, it was ruled that pertinent evidence based on scientifically valid principles could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed greater discretion over which testimony they would allow at trial, including the introduction of new kinds of scientific techniques. DNA typing is one such novel procedure. Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief in its existence or nonexistence. Applying the Daubert test to the case at bar, the DNA evidence obtained through polymerase chain reaction (PCR) testing and utilizing short tandem repeat (STR) analysis, and which was appreciated by the court a quo is relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and molecular biology. Arguments of the Accused to exclude DNA Evidence in Pp. vs. Yatar:

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LAW ON EVIDENCE Argument #1: In an attempt to exclude the DNA evidence, the appellant contends that the blood sample taken from him as well as the DNA tests were conducted in violation of his right to remain silent as well as his right against self-incrimination under Secs. 12 and 17 of Art. III of the Constitution. Held: This contention is untenable. The kernel of the right is not against all compulsion, but against testimonial compulsion. The right against self- incrimination is simply against the legal process of extracting from the lips of the accused an admission of guilt. It does not apply where the evidence sought to be excluded is not an incrimination but is part of object evidence. We ruled in People v. Ronderothat although accused-appellant insisted that hair samples were forcibly taken from him and submitted to the National Bureau of Investigation for forensic examination, the hair samples may be admitted in evidence against him, for what is proscribed is the use of testimonial compulsion or any evidence communicative in nature acquired from the accused under duress. Hence, a person may be compelled to submit to fingerprinting, photographing, paraffin, blood and DNA, as there is no testimonial compulsion involved. Argument #2: Appellant further argues that the DNA tests conducted by the prosecution against him are unconstitutional on the ground that resort thereto is tantamount to the application of an ex-post facto law. Held:This argument is specious. No ex-post facto law is involved in the case at bar. The science of DNA typing involves the admissibility, relevance and reliability of the evidence obtained under the Rules of Court. Whereas an ex-post facto law refers primarily to a question of law, DNA profiling requires a factual determination of the probative weight of the evidence presented. Note:

1. DNA Testing in court involves a scientific procedure. Testimony tending to interpret the results of such scientific procedure would be rendered by experts. Atty. Espejo: Recall that DNA evidence is an object evidence. For example, semen has been obtained in the crime scene. How does the court appreciate that as evidence? It has to be analysed first, then link it to other facts to come up with a conclusion. There has to be testimony of somebody who knows how to conduct the tests and to interpret the results. A layman, then, cannot testify. It has to be an expert.

2. In American jurisprudence, there are tests to determine admissibility of scientific/expert evidence. TESTS (Bar Question): 1. The Frye Test (Frye vs. United States, 293 F. 1013, 1014 [D. C. Cir. 1923]) 2. The Daubert Test (Daubert vs. Merrell Dow Pharmaceuticals, 509 U.S. 579 S.Ct. 2786 [1993]) as later on expanded in Kumho Tire vs. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999) Atty. Espejo: *I’m not familiar with the Frye case+. In the case of Daubert, Merrell Dow Pharmaceuticals is being sued for the medicine they are selling, which caused birth defects. To determine if

based on the lectures of ATTY. JESS ESPEJO

[there is indeed a flaw], you have to test the medicine, analyse the effect and come up with a causal connection between the two. So, this involves scientific procedures and expert testimony. FRYE TEST Scientific evidence is admissible if it was based on a scientific technique generally accepted as reliable in the scientific community. Expert testimony was admitted simply by virtue of the expert’s credentials, experience, skill and reputation. Any deficiencies or flaws in the expert’s conclusions would be exposed through crossexamination. Atty. Espejo: The expert’s testimony will be admitted by the court. For the opponent of the expert testimony, he may impeach such testimony by getting another witness. That witness my testify something that is contrary to the testimony of the expert. Applying this rule, Frye court refused to admit testimony based on an early lie detector (polygraph) test reasoning that lie detector testing had not gained general scientific acceptance or recognition at that time. The standard therefore in Frye is simply general acceptance. If a procedure is not generally accepted, evidence obtained using this procedure would be inadmissible. In a way, this is echoed in: PE LIM vs. CA (GR No. 112229, Mar. 18, 1997) DNA, being a relatively new science, it has not as yet been accorded official recognition by our courts. Paternity will still have to be resolved by such conventional evidence as the relevant incriminating acts, verbal and written, by the putative father. DAUBERT TEST The US Supreme Court expanded the “general acceptance test” and said that trial judges have the role of “gatekeeper” to ensure “that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” The Court stated that the trial judge should determine whether the reasoning and methodology is “scientifically valid” and whether “that reasoning properly can be applied to the facts in issue.” Atty. Espejo: In American court, the trial judge has to ensure that the evidence presented to the jury is relevant and reliable. In here, no more simple test of general acceptance. You have to scrutinize the methodology employed in obtaining evidence. Four Daubert Factors: (1) whether a theory or technique can, or has been, tested; (2) whether it has been subjected to peer review and publication; (3) in respect to a particular technique, the known or potential rate of error and the existence or maintenance of standards controlling the technique’s operation; and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community. Atty. Espejo: Take note of the four Daubert Factors. SC of the Philippines lifted the language from Daubert and made it our own standards here. Prior to DNA Evidence Rule, Frye and Daubert were merely controlling [principles]. By reading the DNA Evidence Rule, it

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LAW ON EVIDENCE can be ascertained that the Philippines follows the Daubert Test and not the Frye Test. Daubert Test: The standard therefore is simply relevancy and reliability. Kumho expanded the application of the Daubert test not only to cover scientific knowledge but also technological or technical knowledge. Note: But obviously, neither the Frye standard nor the Daubert-Kumho standard is controlling in the Philippines. At best, American jurisprudence merely has a persuasive effect on our decisions. Here [in the Philippines], evidence is admissible when it is relevant to the fact in issue and is not otherwise excluded by the law or the Rules. However, it bears to mention that Yatar seems to approve Daubert. Take note however, that Daubert was applied to determine the weight, not the admissibility, of evidence. CABATANIA vs. CA (GR No. 124814, Oct. 21, 2004) Florencia Regodos was employed as the household help of Camelo Cabatania. It was while working there as a maid that, on January 2, 1982, Camelo brought her to Bacolod City where they checked in at the Visayan Motel and had sexual intercourse. Camelo promised to support her if she got pregnant. Florencia claimed she discovered she was carrying Camelo’s child 27 days after their sexual encounter. The child was born in September 1982 or eight months later. Florencia, on behalf of her son, filed petition for recognition and support. The trial court ruled that: “In view of the evidence presented by the plaintiff, the Court finds the evidence of the plaintiff to be meritorious; defendant admitted having a sexual intercourse with the plaintiff’s mother, FlorenciaRegodos, but denied paternity to the child. The child was presented before the Court, and if the Court is to decide this case, based on the personal appearance of the child, then there can never be a doubt that the plaintiff-minor is the child of the defendant.” Held: In this age of genetic profiling and deoxyribonucleic acid (DNA) analysis, the extremely subjective test of physical resemblance or similarity of features will not suffice as evidence to prove paternity and filiation before the courts of law. Private respondent’s petition for recognition and support is dismissed. IN RE: DE VILLA (GR No. 158802, Nov. 17, 2004) The Supreme Court already convicted De Villa by final judgment of raping his niece Aileen. The judgment made reference to the fact that it was the act of rape that got the niece pregnant and for here to consequently bear a child. Since it was never alleged that Aileen gave birth to a full-term nine-month old baby, the SC gave credence to the prosecution’s contention that she prematurely gave birth to an eight-month old baby by normal delivery. While serving sentence, De Villa sought the conduct of a blood

based on the lectures of ATTY. JESS ESPEJO

type test and DNA test in order to determine the paternity of the child allegedly conceived as a result of the rape. Denied by the SC, De Villa had the DNA test conducted independently. The result: He is not the father of Aileen’s child. De Villa then filed a petition for habeas corpus and asked for new trial on the ground of newly discovered evidence. Held: Petitioner invokes the remedy of the petition for a writ of habeas corpus to seek a re-examination of the records, without asserting any legal grounds therefor. For all intents and purposes, petitioner seeks a reevaluation of the evidentiary basis for his conviction. We are being asked to reexamine the weight and sufficiency of the evidence in this case, not on its own, but in light of the new DNA evidence that the petitioner seeks to present to this Court. This relief is outside the scope of a habeas corpus petition. [Note: Writ of habeas corpus is granted usually when there is a deprivation of a constitutional right.] The petition for habeas corpus must, therefore, fail. The issue of paternity is not central to the issue of petitioner’s guilt or innocence. The rape of the victim is an entirely different question, separate and distinct from the question of the father of her child. The fact of the victim’s pregnancy and resultant childbirth are irrelevant in determining whether or not she was raped. Pregnancy is not an essential element of the crime of rape. Whether the child which the victim bore was fathered by the purported rapist, or by some unknown individual, is of no moment in determining an individual’s guilt. Therefore, the DNA evidence has failed to conclusively prove to this Court that Reynaldo de Villa should be discharged. Although petitioner claims that conviction was based solely on a finding of paternity of the child Leahlyn, this is not the case. Our conviction was based on the clear and convincing testimonial evidence of the victim, which, given credence by the trial court, was affirmed on appeal. HERRERA vs. ALBA (GR No. 148220, June 15, 2005) Petitioner raises the issue of whether a DNA test is a valid probative tool in this jurisdiction to determine filiation. Petitioner asks for the conditions under which DNA technology may be integrated into our judicial system and the prerequisites for the admissibility of DNA test results in a paternity suit. Petitioner further submits that the appellate court gravely abused its discretion when it authorized the trial court to embark on a new procedure to determine filiation despite the absence of legislation to ensure its reliability and integrity, want of official recognition as made clear in Pe Lim vs. Court of Appeals and the presence of technical and legal constraints in respect of its implementation. Petitioner maintains that the proposed DNA paternity testing violates his right against self-incrimination. Atty. Espejo: In this case, the court ordered Herrera to submit himself to DNA examination. It has already been decided in People vs. Yatar that this is not a violation of the right to selfincrimination. Held: Despite our relatively liberal rules on admissibility, trial courts should be cautious in giving credence to DNA analysis as evidence. We reiterate our statement in Vallejo: In assessing the probative value of DNA evidence,

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LAW ON EVIDENCE therefore, courts should consider, among other things, the following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests. DNA analysis that excludes the putative father from paternity should be conclusive proof of non-paternity. If the value of W is less than 99.9%, the results of the DNA analysis should be considered as corroborative evidence. If the value of W is 99.9% or higher, then there is refutable presumption of paternity. This refutable presumption of paternity should be subjected to the Vallejo standards. Section 17, Article 3 of the 1987 Constitution provides that no person shall be compelled to be a witness against himself. Petitioner asserts that obtaining samples from him for DNA testing violates his right against self-incrimination. Petitioner ignores our earlier pronouncements that the privilege is applicable only to testimonial evidence. It is not enough to state that the child’s DNA profile matches that of the putative father. A complete match between the DNA profile of the child and the DNA profile of the putative father does not necessarily establish paternity. For this reason, trial courts should require at least 99.9% as a minimum value of the Probability of Paternity (W) prior to a paternity inclusion. W is a numerical estimate for the likelihood of paternity of a putative father compared to the probability of a random match of two unrelated individuals. An appropriate reference population database, such as the Philippine population database, is required to compute for W. Due to the probabilistic nature of paternity inclusions, W will never equal to 100%. However, the accuracy of W estimates is higher when the putative father, mother and child are subjected to DNA analysis compared to those conducted between the putative father and child alone. AGUSTIN vs. CA (GR No. 162571, June, 15, 2005) Petitioner contends that compulsory DNA testing to determine paternity violates his right to privacy and right against selfincrimination as guaranteed under the 1987 Constitution. Held: Compulsory DNA testing was allowed by the Supreme Court in a paternity case. Petitioner’s invocation of his right to privacy fails to persuade us. In Ople v. Torres, where we struck down the proposed national computerized identification system embodied in Administrative Order No. 308, we said: In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual privacy. The right is not intended to stifle scientific and technological advancements that enhance public service and the common good... Intrusions into the right must be accompanied by proper safeguards that enhance public service and the common good. Historically, it has mostly been in the areas of legality of searches and seizures, and the infringement of privacy of communication where the constitutional right to privacy has been critically at issue. Petitioner’s case involves neither. His hollow

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invocation of his constitutional rights elicits no sympathy here for the simple reason that they are not in any way being violated. If, in a criminal case, an accused whose very life is at stake can be compelled to submit to DNA testing, we see no reason why, in this civil case, petitioner herein who does not face such dire consequences cannot be ordered to do the same. Atty. Espejo: For compulsory DNA testing in criminal cases, your basis would be People vs. Yatar. For compulsory DNA testing in paternity cases, it would be Agustin vs. CA and Herrera vs. Alba. If ever asked in the Bar, you would at least be able to cite the proper jurisprudence.

PEOPLE vs. MACAPAL (GR No. 155335, July 14, 2005) Accused allegedly raped a 23-year old mental retardate named Ligaya. She got pregnant and bore a child. He was convicted. Accused argues that he was deprived of his right to fully defend himself in light of the trial court’s denial of his ‘MOTION FOR DNA TEST’ wherein he raised as main issue whether he fathered the victim’s child. Held: The identity of the father of a rape victim's child is non-issue in a charge for rape, the impregnation of the victim not being an element of the offense. More importantly, it should be pointed out that these consolidated cases are criminal cases for rape, not civil actions for paternity or filiation. The identity of the father of the victim's child is a non-issue. Even her pregnancy is beside the point. What matters is the occurrence of the sexual assault committed by appellant on the person of thevictim on four separate occasions. Appellant's act of committing, along with his parents, in the Agreement forged with the victim while the case was on preliminary investigation before the Prosecutor's Office 'to shoulder one-half (1/2) of the expenses to be incurred by [the victim] . . . in connection with the delivery of her child is the coup de grace that dissipates any nagging doubts on his guilt.

PEOPLE vs. RAYLES (GR No. 169874, July 27, 2007) (last decided case of the SC prior the effectivity of DNA Evidence Rule) Accused-appellant would have this Court credit him for having insisted that a DNA test be conducted on AAs daughter. He claims that had he raped the victim and fathered her child, he would not have the nerve to challenge the result of a DNA test, as such procedure would definitely reveal whether he is the father or not. Held: Pregnancy and the subsequent birth of her child are not elements of the crime of rape. Moreover, non-paternity of the appellant, if that be the case, will not necessarily negate the crime of rape as positively proved and established by AAs credible testimony. There may or may not be conception after the commission of the crime of rape because the offense may be consummated even without full penetration or even complete ejaculation on the part of the assailant. We have time and again stressed that among the most important consideration in a rape case is the credible testimony of the victim. We have repeatedly

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LAW ON EVIDENCE held that when a woman says she had been raped, her declaration alone is all that is necessary to show that she had indeed been raped and her sole testimony is sufficient if it satisfies the exacting standard of credibility needed to convict the accused.

based on the lectures of ATTY. JESS ESPEJO

be admitted to the Philippine Bar.

All’s well that ends well. CESAR, JULIUS, R.; Tagbilaran City; February 26, 2003; Roll No. 47694. Assistant Provincial Prosecutor – Bohol

A.M. No. 06-11-5-SC (Oct. 2, 2007)  The Rule on DNA Evidence, which took effect on Oct. 15, 2007  Promulgated by SC after 12 years of cases involving DNA Evidence

After 12 years of cases involving DNA evidence, the Supreme Court promulgated A.M. No. 06-11-5-SC (2 October 2007), or the RULE ON DNA EVIDENCE, which took effect on October 15, 2007.

July 27, 2016

RULE ON DNA EVIDENCE (RODE) - A.M. No. 06-11-5-SC

PETITION TO TAKE THE BAR EXAMINATIONS BY JULIUS CESAR (June 25, 2002) Julius Cesar actually passed the 1999 Bar Examinations but was not allowed to take the lawyer’s oath in view of the letter complaint by a certain Tuesday Castro charging him with immorality and grave misconduct. Castro alleged that she and petitioner were former lovers; that she bore him a son named Michael Angelo Castro on May 5, 1999. The issue before the Supreme Court is whether petitioner possesses the good moral character required to be admitted to the Philippine Bar. Complainant presented evidence tending to show that petitioner does not possess such character since he refused to give financial support to a child he has legally acknowledged to be his own. Petitioner claims otherwise. Aside from the fact that he was merely forced into acknowledging paternity of Michael, he wanted to remove first his reasonable doubts regarding the child’s paternity through DNA Testing. Julius promised to abide with the result of the DNA test and to give financial support as religiously as before, even more, if Michael was proved to be his son. Tuesday, however, refused to undergo DNA testing. (Sir: What I want you to focus on in this case is what would be the implication if you do not undergo DNA testing when doubt would possibly be resolved by means of DNA testing yet you fail to undertake or refuse to undertake?) We take judicial notice of the fact that DNA typing is fast becoming an important procedure not only in the field of medical science but in criminal law and paternity disputes as well. Considering the foregoing and the fact that petitioner promised to abide by the result of the DNA test as well as to shoulder the expenses therefore, we find petitioner’s proposal for a DNA testing to be quite reasonable and complainant’s aversion to the test surprising. If her claim that petitioner fathered her child is really true, she has no reason to fear the result of the test for it would be another evidence on her favor. Moreover this case should be decided on a strong foundation of truth and justice rather than on blind adherence to prima facie rules. Finding the proposal of petitioner for DNA testing at his expense to be fair and reasonable, unless the test is conducted and the results thereof submitted to this Court within forty-five (45) days from notice thereof, the Court will be constrained to grant the petition of JULIUS R. CESAR to be allowed to take his oath as a lawyer and to

SECTION 1. Scope – This Rule shall apply whenever DNA evidence, as defined in Section 3 hereof, is offered, used, or proposed to be offered or used as evidence in all criminal and civil action as well as special proceedings.

Examples:

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- Unlawful killings (Murder, Homicide, Parricide, Infanticide) Rape Kidnapping (ex. Tijing vs. Court of Appeals, G.R. No. 125901) Adultery – DNA testing can be a viable tool when it comes to prosecution for crimes of Adultery

Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her knowing her to be married, even if the marriage is subsequently declared void. (Article 333, RPC).

Suppose that the wife became pregnant. DNA evidence can therefore be presented to prove that the child is not the husband’s and as proof of sexual intercourse. VILLAFLOR vs. SUMMERS (1920) FACTS: Villaflor was charged with the crime of adultery. The trial judge ordered her to subject herself to a physical examination to see whether or not she was pregnant and thus determine the crime of adultery being charged to her. Petitioner refused such physical examination, interposing the argument that such examination was a violation of right against self-incrimination. She was found in contempt of court and was ordered to be committed to Bilibid Prison until she would permit the medical examination acquired by the court. (Sir: So what the Court wants here is to have blood testing. To determine if you are really pregnant or even a simple pregnancy test.) ISSUE: Whether the compelling of a woman to permit her body to be examined by physicians to determine if she is pregnant violates her right not be compelled to be a witness against herself. HELD: NO. The constitutional guaranty, that no person shall be compelled in any criminal case to be a witness against himself, is limited to a prohibition against compulsory testimonial selfincrimination. An ocular inspection of the body of the accused is permissible. (Sir: although they are using the term ocular inspection here, it is in quite general terms. Because right now when you are talking about ocular inspection, you are talking

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

about the examination of objects outside of the subject)

any of his heirs, should reside in the city or municipality where the birth took place or was recorded.

Remember that, in Agustin: DNA testing and its results, as per our ruling in Yatar, are now similarly acceptable, and they do not include a determination; it’s excluded from the realm of self-incrimination because that’s merely object evidence. So what the SC did in Agustin and Yatar are actually only to expand what happened in the case of Villaflor. But now, specifically seeing that in testing it’s mere object evidence; it’s autoptic preference that is not covered by the realm of self-incrimination; such as several kinds of object evidence taken from the person of the accused. These include photographs, hair, and other bodily substances. We have declared as constitutional several procedures performed on the accused such as pregnancy tests for women accused of adultery XXX.

If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier. (263a)

In Jimenez v. Caizares, we even authorized the examination of a woman’s genitalia, in an action for annulment filed by her husband, to verify his claim that she was impotent, her orifice being too small for his penis. Some of these procedures were, to be sure, rather invasive and involuntary, but all of them were constitutionally sound. DNA testing and its results, per our ruling in Yatar, are now similarly acceptable. (AGUSTIN VS. CA. G.R. No. 162571, 15 June 2005)

(1) If the husband should died before the expiration of the period fixed for bringing his action;

CROSS-REFERENCE (Presumption of Legitimacy)

* The mother might have declared against the illegitimacy of the child. Even if the mother had myths na dili na siya anak sa iyang bana, there is still a presumption of legitimacy.

Children born or conceived of the wife during the marriage are presumed legitimate. This presumption of legitimacy is based on the provisions of Articles 164, 166, 167, 170, and 171 of the Family Code.

Art. 171. The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases:

(2) If he should die after the filing of the complaint without having desisted therefrom; or (3) If the child was born after the death of the husband.

NOTES 

Sir: Everything that you can do; every presumption that you can accord to a minor child should be given preference. The law will not disturb the legitimate status of the child. That presumption of legitimacy is based on the provisions of the Family Code.

 

Art. 164. Children conceived or born during the marriage of the parents are legitimate.

The presumption of legitimacy of children born during a valid marriage is DISPUTABLE. The finding of adultery does not, by itself, rebut the presumption of legitimacy. DNA Evidence can therefore be presented to prove that “for biological or other scientific reasons, the child could not have been that of the husband”.

IN CIVIL ACTIONS Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child. (55a, 258a) Art. 166. Legitimacy of a child may be impugned only on the following grounds:

The Rule on DNA Evidence actually does not distinguish between ordinary and special civil actions. It is therefore possible to apply the rule to special civil actions. A perfect example is an action for support. Entitlement to support is dependent on family relationship. DNA testing can be done to determine that family relationship or pedigree. IN SPECIAL PROCEEDINGS XXX

XXX (2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164 (artificial insemination); XXX Art. 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. (256a) Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case,

(c) A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. (Rule 1, Sec. 3c)

Examples: Paternity suits (see Herrera vs. Alba) Sir: Therefore, if you want to establish paternity or filiation in a suit, that is trying to establish a status or a fact; the fact that you are a daughter or a son of a particular putative father. And also, HABEAS CORPUS CASES UNDER RULE 102

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LAW ON EVIDENCE Habeas Corpus may be resorted to in cases where “the rightful custody of any person is withheld from the person entitled thereto.” The writ is the proper legal remedy to enable parents to regain the custody of a minor child. (Salvana vs. Gaela, 55 Phil 680) Example: Tijing case – The Court here did not resort to DNA testing RODE Sec. 2. Application of other Rules on Evidence. – In all matters not specifically covered by this Rule, the Rules of Court and other pertinent provisions of law on evidence shall apply.

Let us appreciate first what are the Characteristics of DNA Evidence so that we can connect that to particular rules that would be taken from the Rules of Court to apply suppletorily. Remember that it’s object evidence; therefore, evidence of the highest order. But remember that object evidence do not testify by themselves. Object evidence must be sponsored by testimony of a competent and reliable witness. So remember also that when you obtain the results of DNA testing, it is not self-explanatory. In which case you would need an expert witness to testify as to the results of the DNA testing. Ex. NBI, UP expert, etc. Remember that expert testimony is opinion. While a particular expert testifies on particular results, he is stating an opinion. But opinion as a general rule under the Rules on Evidence is actually not admissible; their opinion does not matter. What matters are the facts derived from personal knowledge. But by way of exception, opinion of an expert witness is admissible. CHARACTERISTICS OF DNA EVIDENCE  





It is OBJECT or PHYSICAL EVIDENCE, and therefore evidence of the highest order. However, it is one that can only be appreciated through the aid of expert testimony (which is, for all intents and purposes, mere opinion evidence). Object evidence does not lie but the expert, who processes it and testifies about it, may. Object evidence by itself is reliable but the manner of collecting, processing and preserving it may be prone to error. Thus, based on Section 2, we apply the Rules of Court (Evidence) suppletorily to cases covered by the Rule on DNA Evidence.

Example: Section 49 of Rule 130. Opinion of expert witness. – The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he has shown to possess, may be received in evidence.

based on the lectures of ATTY. JESS ESPEJO

Sir: Do you recall cases under the law which absolutely requires expert testimony? Psychological incapacity – Republic vs. Molina. Remember that there should be testimony; findings by a psychologist or clinical psychiatrist to determine really whether or not there is psychological incapacity to comply with the essential marital obligations of marriage. If you are going to call for DNA testing, the presentation of the expert witness in effect becomes mandatory. There has to be a witness expert on the field of DNA Science to testify as to the results and the methodology used in obtaining such results. RODE Sec. 3. Definition of Terms. – For purposes of this Rule, the following terms shall be defined as follows: “Biological sample” means any organic material originating from a person’s body, even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva and other body fluids, tissues, hairs and bones; “DNA” means deoxyribonucleic acid, which is the chain of molecules found in every nucleated cell of the body. The totality of an individual’s DNA is unique for the individual, except identical twins; “DNA evidence” constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples; “DNA profile” means genetic information derived from DNA testing of a biological sample obtained from a person, which biological sample is clearly identifiable as originating from that person; “DNA testing” means verified and credible scientific methods which include the extraction of DNA from biological samples, the generation of DNA profiles and the comparison of the information obtained from the DNA testing of biological samples for the purpose of determining, with reasonable certainty, whether or not the DNA obtained from two or more distinct biological samples originates from the same person (direct identification) or if the biological samples originate from related persons (kinship analysis); and “Probability of Parentage” means the numerical estimate for the likelihood of parentage of a putative parent compared with the probability of a random match of two unrelated individuals in a given population. Sec. 4. Application for DNA Testing Order. – The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following:

EXPERT WITNESS

a) A biological sample exists that is relevant to the case;

If the opponent admits that the witness is an expert, he can immediately proceed with this testimony and give his opinion. But, if the opponent does not admit to the qualifications of the witness as an expert, before he may testify, he must first be qualified; he must undergo a process which we call:

b) The biological sample:

“QUALIFYING A WITNESS” – This means the act of proving that the witness is an expert. This is done by making him to testify, through preliminary questions, as to his training, education and expertise.

(i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons;

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LAW ON EVIDENCE c) The DNA testing uses a scientifically valid technique; d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy of integrity of the DNA testing. This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced.

In reference to the initial paragraph of Sec. 4 - Take note that DNA testing may be ordered by the Court on its own initiative or it may be upon the application of any person (anybody who has a legal interest in the matter in litigation). Ex. In a criminal case, application by the accused for DNA testing for exonerating evidence or by the prosecution for identification; to determine w/n the accused is the one who committed the crime. Sir: To my mind, if you resort to DNA testing prior to a suit or proceeding against your opponents, ambid-ambid (akin) na siya sa deposition. Remember that depositions may be taken pending action or when a case is already pending and can even be before action or pending appeal. Sec. 5. DNA Testing Order. – If the court finds that the requirements in Section 4 hereof have been complied with, the court shall – a) Order, where appropriate, that biological samples be taken from any person or crime scene evidence;

We have no problem with crime scene evidence, but what I want to point out is the fact that: Can the Court compel the taking of biological samples of the accused upon the latter’s objection? Is it not a coercion? Remember that in the previous cases that we have discussed the constitutionality and the validity of compulsory DNA testing have been upheld. So there is no question anymore that the Court can order you to give biological samples. b) Impose reasonable conditions on DNA testing designed to protect the integrity of the biological sample, the testing process and the reliability of the test results, including the condition that the DNA test results shall be simultaneously disclosed to parties involved in the case; and

This is more or less applicable in paternity suits because that is usually when the parties would require simultaneous disclosure of the DNA test results. Dili pwede na unahon nimo sa plaintiff ug ulahi sa respondent in paternity testing. c) If the biological sample taken is of such an amount that prevents the conduct of confirmatory testing by the other or the adverse party and where additional biological samples of the same kind can no longer be obtained, issue an order requiring all parties to the case or proceedings to witness the DNA testing to be

based on the lectures of ATTY. JESS ESPEJO

conducted.

When would that usually happen? When would there be a scarcity of DNA samples? Say for example in a crime of rape; patay na. And then the only way that you could test for DNA is from the vaginal swabs from the rape kit. That is the only remaining DNA na relevant. So, that is possible. Rape with homicide na siya; when you can no longer order an additional examination of the body of the victim. An order granting the DNA testing shall be immediately executory and shall not be appealable. Any petition for certiorari initiated therefrom shall not, in any way, stay the implementation thereof, unless a higher court issues an injunctive order. The grant of DNA testing application shall not be construed as an automatic admission into evidence of any component of the DNA evidence that may be obtained as a result thereof.

IMMEDIATELY EXECUTORY, NOT APPEALABLE Take note that the issuance of a DNA Testing order is merely interlocutory. For this reason, the remedy of appeal is not allowed. Remember that in your Civil Procedure, what would distinguish a matter that is appealable and is not appealable? The nature of the order. If the nature of the order is merely interlocutory, your remedy is not appeal because there is something yet to be done by the Court. So what is your remedy? REMEDY: Petition for Certiorari (Rule 65) which falls within the concurrent jurisdiction of the Regional Trial Court, Court of Appeals and the Supreme Court subject to the principle of hierarchy of courts. EFFECT: The filing of the petition for certiorari shall not, in any way, stay the implementation thereof, unless a higher court issues an injunctive order. So, if you are the defendant for example, and you do not like the order that DNA testing will be initiated by the Court, you can file a petition for certiorari but you have to include a prayer for injunction. TRO is possible or a preliminary prohibitory injunction to enjoin the taking of the DNA test. Otherwise, it will not stay the order. ADMISSIBILITY: The grant of DNA testing appslication shall not be construed as an automatic admission into evidence of any component of the DNA evidence that may be obtained as a result thereof. So the Court already orders DNA testing and of course, it will yield results. But every component thereof, including the DNA profiles of the DNA samples, they are not automatically admitted into evidence. Reasons: 1. DNA evidence, as any other type of evidence, must pass the basic tests of relevancy and competency; (So if it is excluded by the law or the Rules, the DNA that was taken should not be admitted.) 2. DNA evidence must still be formally offered in order for the court to consider it; (The Court will not receive any evidence that is not formally offered.) and 3. A witness must still testify as to the result of the test.

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LAW ON EVIDENCE OBSERVATIONS  It is submitted that a DNA Testing Order is akin to allowing the conduct of modes of discovery.  Note that, in modes of discovery, the results are not automatically admitted into evidence, as a general rule. They have to be formally offered to be admitted. In the case of a deposition, the deponent must still testify in court, subject to certain exceptions.  Under modes of discovery, we have Rule 28 (Physical and Mental Examination of Persons). The Court may actually order that you submit to a physical examination by the doctor to determine injury, or mental examination. Ex. In a proceeding for the probate of a will, and then you are still alive and you want it probated immediately. Pwede man na diba? To have the probate of a will even when you are still alive. That is allowed. But the opponent would oppose probate on the ground that the testator, the maker of the will, is not of sound mind. So the Court may actually order compliance with Rule 28 to determine whether you are really of sound mind. Section 4. Waiver of privilege. – By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination.

WHAT IS THIS PRIVILEGE? Rule 130, Section 24. – Disqualification by reason of privileged communication. The following persons cannot testify as to matters learned in confidence in the following cases: xxx c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient;

Other privileged communication: attorney-client privileged communication rule, marital privileged rule and (c above) physicianpatient privileged communication rule Hypothetical case: JZE, married to Maja, had an affair with Bangs. Bangs got pregnant and delivered a baby but JZE is not sure about the paternity of the child. So he privately went to a doctor, Dr. Hayden, to have a DNA test in secret. It turns out that he is the father of the child.

based on the lectures of ATTY. JESS ESPEJO

Testing Order. The question there would be, unsay effect niya? What’s the difference between physical and mental examination of persons and DNA testing under Section 4? Had the DNA Test been conducted under Rule 28, the same rule sets forth the conditions for waiver of privilege. We have no problem there. There’s waiver of privilege. However, under the Rule on DNA evidence, there is no mention about waiver and physician-patient privilege. In fact, in several cases, the SC has ruled that a person can be compelled to undergo DNA testing without violating the right against self-incrimination. You can be compelled to undergo DNA testing Conclusion: The Physician-Patient privilege does not apply in courtordered DNA Testing. Sec. 6 is quite controversial: the law provides for it, the law allows it, and yet nobody is successful in claiming it. RODE Sec. 6. Post-conviction DNA Testing. – Post-conviction DNA testing may be available, without need of prior court order, to the prosecution or any person convicted by final and executory judgment provided that a) b) c)

a biological sample exists, such sample is relevant to the case, and the testing would probably result in the reversal or modification of the judgment of conviction.

So you have been convicted already of final judgment. Maybe your case is pending appeal before the Supreme Court, and the case is let’s say for rape and there’s DNA sample that’s available from the victim and you. Or it could be paternity testing because the allegation could be that you fathered the child because of the rape. So if there is a dissimilarity between the DNA profiles, meaning it’s an exclusion result, you are not the father of the baby conceived because of the rape. Would it be logical to assume that you should be acquitted? Remember these cases:     

ANDAL vs. PEOPLE – G.R. No. 138268, 26 May 1999 PEOPLE vs. PENASO – G.R. No. 121980, 23 Feb 2000 IN RE: DE VILLA – G.R. No. 158802, 17 Nov 2004 PEOPLE vs. MACAPAL – G.R. No. 155335, 14 Jul7 2005 PEOPLE vs. RAYLES – G.R. No. 169874, 27 July 2007

In all these cases, the SC either denied requests for post-conviction DNA testing or pleas for acquittal based on DNA testing results (See In Re: De Villa) because pregnancy is not an element of rape. In other cases, presence of semen is not an element or rape. It will always be overcome by eyewitness testimony; by positive identification that you are the rapist. What the SC favored were the testimonies positively identifying the several accused as rapists. Will this now change because of the new Rule?

Ordinarily, Dr. Hayden cannot be compelled to divulge the results of the DNA Test as he is covered by Physician-Patient privilege. The result also tends to blacken the reputation of the patient, JZE. However, suppose that the DNA Test was made in a civil case filed by Bangs against JZE. Bangs applied for and was issued a DNA 3 - MANRESA 2016: BANAL. BIRUAR. BUHAY. BUNIEL. CASAN. JARDINEL. LOMONDOT. RESURRECCION. SUAN.

LAW ON EVIDENCE SURVEY OF CASES: RAPE and DNA (Post-conviction DNA testing) PEOPLE vs. UMANITO (2007) *first case where the SC applied the new Rule on DNA testing after the Rule took effect last October 15 FACTS:  The SC through Justice Dante O. Tinga remanded the case against Umanito to the RTC for reception of evidence in appropriate hearings, ruled that “the determination of whether the appellant is the father of the rape victim’s child [born from the alleged rape], which may be accomplished through DNA testing, is material to the fair and correct adjudication of the instant appeal. Under Section 4 of the Rule on DNA Evidence, the courts are authorized, after due hearing and notice, motu propio to order a DNA testing.”  He is already convicted. His appeal is now with the SC. Case was remanded by the SC- obtain DNA; but did not say that if results were negative he would be acquitted  99.9999% Match  Given that the results of the Court-ordered DNA testing conforms with the conclusions of the lower courts, and that no cause is presented for us to deviate from the penalties imposed below, the Court sees no reason to deny Umanito’s Motion to Withdraw Appeal. (Take note of the procedure followed by the RTC like how the samples will be taken, how they will be kept, how will they be marked and then how will they be tested. And also what would consist in the testimony later on.)

PEOPLE vs. MAGLENTE (2008)  Complainant alleges that Maglente, her biological father, had subjected her to sexual abuse as early as 1997, when she was still nine (9) years old, until 13 July 2002, when she reached 14 years of age. As a result of her father’s molestation, she became pregnant and delivered a baby boy on 1 October 2002, which she gave up for adoption. On cross-examination, private complainant testified that she was willing to have her baby undergo DNA testing but the baby’s whereabouts were unknown to her. HELD: Even if the DNA test were conducted and it established that appellant had not fathered the child, it would still be inconclusive to prove that appellant was not guilty of having raped private complainant. He cannot obtain an acquittal based on the circumstances of private complainant’s pregnancy. Impregnation is not an element of rape. Even proof that the child was fathered by another man does not show that the appellant is not guilty. For the conviction of an accused, the pregnancy of the victim is not required to be proved, since it is sufficient that the prosecution establish beyond reasonable doubt, as it had in this case, that the accused had forced sexual relations with the victim.

REMEDY IF RESULTS ARE FAVORABLE – Apply Section 10 RODE Sec. 10. Post-conviction DNA Testing – Remedy if the Results Are Favorable to the Convict. – The convict or the prosecution may file a petition for a writ of habeas corpus in the

based on the lectures of ATTY. JESS ESPEJO

court of origin if the results of the post-conviction DNA testing are favorable to the convict. In the case the court, after due hearing finds the petition to be meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict, unless continued detention is justified for a lawful cause. A similar petition may be filed either in the Court of Appeals or the Supreme Court, or with any member of said courts, which may conduct a hearing thereon or remand the petition to the court of origin and issue the appropriate orders.

Results favorable to convict = remedy is to file a petition for Habeas corpus Take note that this was the remedy applied for by the convict in IN RE: DE VILLA. Let’s revisit it. IN RE: DE VILLA (2004) Reynaldo de Villa was sentenced to death for raping his 12-yearold niece, Aileen Mendoza who had subsequently given birth to a baby girl. De Villa had always maintained his innocence, but no paternity test had been carried out to establish whether or not he was the father of the child. Because de Villa was in prison, Cora de Ungria, head of the DNA Analysis Laboratory of UP, could not obtain a DNA sample from de Villa directly. She enlisted the help of the prison priest. He visited de Villa carrying a sterile blade and a blood collection vial hidden in his robes. De Ungria still needed a sample from the child he had allegedly fathered, then aged 10. De Villa’s grandson, a schoolmate of Mendoza’s daughter, was coached to organize a spitting competition in the playground. He collected the girl’s spit in a cup, and de Ungria used it to generate a DNA profile. The results confirmed that de Villa was not the girl’s father, but the SC refused to consider the new evidence and so he remained on death row. Anent the remedy of habeas corpus, the Supreme Court said that: Petitioner invokes the remedy of the petition for a writ of habeas corpus to seek a re-examination of the records, without asserting any legal grounds therefore. For all intents and purposes, petitioner seeks a reevaluation of the evidentiary basis for his conviction. We are being asked to reexamine the weight and sufficiency of the evidence in this case, not on its own, but in light of the new DNA evidence that the petitioner seeks to present to this Court. This relief is outside the scope of a habeas corpus petition, which applies only in case of denial of a constitutional right. The petition for habeas corpus, therefore, fails. (What the SC was saying in a nutshell was dili ka pwede magpa-acquit sa habeas corpus case based on DNA evidence. But it is already different in Sec. 10. Very clear na ang remedy is habeas corpus.) Review of a judgment of conviction is allowed in a habeas corpus petition only I very specific instances, such as when, as a consequence of judicial proceeding, (a) there has been a deprivation of a constitutional right resulting in the restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c) an excessive penalty has been imposed, as such sentence is void as to such excess. In this instance, petitioner invokes the writ of habeas corpus to assail a final judgment of conviction, without, however, providing a

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LAW ON EVIDENCE legal ground on which to anchor his petition. In fine, petitioner alleges neither the deprivation of a constitutional right, the absence of jurisdiction of the court imposing the sentence, or that an excessive penalty has been imposed upon him. (SC: habeas corpus not a viable remedy if you are trying to present newly discovered evidence or DNA evidence after conviction)

based on the lectures of ATTY. JESS ESPEJO

For example: 

In De Villa, the judgment made reference to the fact that it was the act of rape that got the niece pregnant and for her to consequently bear a child.



The request for paternity testing was also consistent with the defense presented at trial. The appellant’s testimony of his incapacity for sexual intercourse due to his advanced age was supported by his wife’s testimony. There were also no allegations of multiple perpetrators or of promiscuous behavior of the victim. More importantly, records show that the trial court based its decision entirely on the birth of the child. (And now that he was able to prove that the child was not his, and by implication he is trying to allege that it could not have been him who raped or had intercourse with the victim, the SC did not want to receive any further evidence.) In Penaso, the criminal complaint alleged that: “as a result of his devilish act, it caused me to have an unwanted pregnancy of an unwanted child.” (So that’s the allegation. If that’s what you allege, that is what you prove in trial. And then later on post-DNA testing would show na dili diay siya ang papa atong baby. Shouldn’t that call for a reversal of the conviction under post-DNA conviction testing? The SC seems to be very myopic in the sense that all it sees are the elements of rape. It should consider the factual milieu of the case.)

Q: Has De Villa now been abrogated by Section 10? A: Not really. It is logical to suppose that, in De Villa, had the petitioner been more precise in his invocation of the remedy, a different result might have ensued. Which brings to the fore the ability of a lawyer to craft a pleading. They wanted habeas corpus to overturn the conviction pero you were not able to plead the properly the basis for the grant of the habeas corpus petition. Take note of the following pronouncement in De Villa:



“First, the denial of a constitutional right has not been alleged by petitioner. As such, this Court is hard-pressed to find legal basis on which to anchor the grant of a writ of habeas corpus.” (So what if he alleged in that case that his constitutional right has been violated? What constitutional right? Basic. Right to due process. Any general invocation will do.) “In fine, we find that petitioner invokes the remedy of the petition for a writ of habeas corpus to seek a re-examination of the record of People v. de Villa, without asserting any legal grounds therefore.” (So had the convict here allege with more particularity the legal ground supposed to be could have been acquitted by way of the habeas corpus case.)

PEOPLE vs. BASALLO (2013) Consideration of the factual milieu of the case seems to be supported by the SC in Basallo. Here, the SC mentioned that:

However, take note that: 

First, Section 10 can now be a viable legal basis for Habeas Corpus by direct provision of the Rule.  Second, this portion of the SC’s decision is deemed abrogated already: o We are being asked to reexamine the weight and sufficiency of the evidence in this case, not on its own, but in the light of the new DNA evidence that the petitioner seeks to present to this Court. This relief is outside the scope of a habeas corpus petition. (What relief? To reexamine the weight and sufficiency of the evidence.) The petition for habeas corpus must, therefore, fail. (By way of Section 10, habeas corpus can do this already) Observations 

The Supreme Court’s decision not to grant the motion to reopen the case of De Villa was based on the principle that pregnancy (and also presence of seminal discharge) is not an element of rape. The Supreme Court has consistently upheld this ever since the Rule on DNA Evidence was promulgated. (All you need is positive eyewitness testimony that there was penetration)

See Maglente, Hipona, Cabigquez and Lucero 

However, paternity (for the negation thereof) should be used as evidence to exonerate the accused or convict in a rape case if it is warranted by the factual milieu of the case. Depende sa facts of the case. It should not be a blanket ruling that you only limit rape to penetration.

For a man who vehemently asserts his innocence, it mystifies the mind that the appellant would not exhaust all available avenues to prove his innocence especially DNA testing that would conclusively prove that he is not the father of ABC’s so who is alleged to be the fruit of his crime. (That is conclusive proof which ought to be sufficient to overturn the conviction. However, no conviction has been overturned yet through post-conviction DNA testing.)

Aftermath of DE VILLA  Cora de Ungria marshaled international pressure and eventually, in February 2005, President Gloria MacapagalArroyo granted him a pardon. His complete case records, including the DNA test results, were sent to the Board of Pardons and Parole that recommended clemency to the President.  De Villa was 67 years old at the time of the alleged rape. Thus, when he was released on pardon, he was already 78 years old.  In June 2006, due to the increasing amount of information available on the problems of the criminal justice system and the implementation of the death penalty in the Philippines, the President signed Republic Act No. 9346, once again abolishing the death penalty in the Philippines. RODE Sec. 7. Assessment of probative value of DNA evidence. – In assessing the probative value of the DNA evidence presented, the court shall consider the following: A.

The chain of custody, including how the biological

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LAW ON EVIDENCE B.

C. D.

E.

samples were collected, how they were handled, and the possibility of contamination of the samples; The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests; The forensic DNA laboratory, including accreditation by any reputable standards-setting institution and the qualification of the analyst who conducted the tests. If the laboratory is not accredited, the relevant experience of the laboratory in forensic casework and credibility shall be properly established; and The reliability of the testing result, as hereinafter provided.

Note that this provision is lifted almost entirely from the SC’s initial pronouncement in Vallejo, to wit: In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data:      

How the samples were collected How they were handled, the possibility of contamination of the samples the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests

RODE Sec. 8. Reliability of DNA Testing Methodology. – In evaluating whether the DNA testing methodology is reliable, the court shall consider the following: A.

B. C. D. E. F.

The falsifiability of the principles or methods used, that is, whether the theory or technique can be and has been tested; The subjection to peer review and publication of the principles or methods; The general acceptance of principles or methods by the relevant scientific community; The existence and maintenance of standards and controls to ensure the correctness of data generated; The existence of an appropriate reference population database; and The general degree of confidence attributed to mathematical calculations used in comparing DNA profiles and the significance and limitation of statistical calculations used in comparing DNA profiles.

If you examine Section 8, you’ll find that it mirrors and expands the Daubert Test first alluded to by the SC in People vs. Yatar. FOUR DAUBERT FACTORS 1. 2. 3.

4.

whether a theory or technique can be and has been tested; whether it has been subjected to peer review and publication; in respect to a particular technique, the known or potential rate of error and the existence or maintenance of standards controlling the technique’s operation; and whether the theory or technique enjoys general acceptance within a relevant scientific community.

based on the lectures of ATTY. JESS ESPEJO

The Philippines actually follows the Daubert Test by incorporation. RODE Sec. 9. on DNA Testing Results. – In evaluating the results of DNA testing, the court shall consider the following: A. the evaluation of the weight of matching DNA evidence or the relevance of mismatching DNA evidence; Take note that the SC uses the term “weight” for matching DNA evidence, and “relevance” for mismatching DNA evidence. B. C.

The results of the DNA testing in the light of the totality of the other evidence presented in the case; and that DNA results that exclude the putative parent form paternity shall be conclusive proof on non-paternity. If the value of the Probability of Paternity is less than 99.9%, the results of the DNA testing shall be considered as corroborative evidence, if the value of the Probability of Paternity is 99.9% or higher there shall be a disputable presumption of paternity.

Weight of Matching DNA Evidence Weight means reliability and probative value of evidence. In layman’s parlance, when you talk about weight or probative value, you are talking about the believability of the evidence. So, believable ba ang matching DNA evidence? That’s what the court should consider. Thus, if the DNA samples match, the court is tasked to determine whether the DNA testing result is reliable and what evidentiary value it will assign to it (i.e. whether the evidence is to be believed or not). Relevance of mismatching DNA evidence Relevancy, as you know, means that evidence must have such a relation to the fact in issue as to induce belief in its existence or nonexistence. Thus, under this factor, the court should consider whether or not the fact that the DNA profiles do not match bears a relation to the fact in issue in the case. So, when it’s mismatching, determine the relevance. If it’s matching, determine the weight. Take note that in US jurisprudence where our own laws were based, naay very important distinction between weight and relevancy. Ang ilahang judicial system is run not only by a judge but also by a jury. Now, whose function is it to determine the weight to be given to the evidence presented; the believability? The jury. Who determines the relevancy? The judge. In the Philippines, both the weight and relevancy is considered by the same person which makes our judicial system flawed. In the US jurisdiction, a judge is merely to be a gate keeper: Unsa ang akong palusuton sa jury? The jury will make the decision. The jury will determine the believability of evidence; what it will believe and what it will not believe.

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LAW ON EVIDENCE In the Philippines it is totally different. The judge will determine whether he will admit it or not. When he admits it, in all probability, he will be believing it as well. Example: If the semen found at the vagina of the victim does not match the DNA profile of the accused-rapist, would it be relevant to the issue of whether or not the accused raped the victim or not? (Unsa may nahitabo dinhi? Mismatch diba?) PEOPLE vs. CABIGCUEZ, G.R. No. 185708, (September 29, 2010) Neither a positive DNA match of the semen nor the presence of spermatozoa is essential in finding that rape was committed. The important consideration in rape cases is not the emission of semen but the penetration of the female genitalia by the male organ. (It is not relevant according to the SC. So how would you overturn the conviction kung dili siya relevant diay?) Results of DNA testing in the light of the totality of the other evidence: A positive DNA match is unnecessary when the totality of the evidence presented before the court points to no other possible conclusion, i.e., appellant rape the private offended party. A positive DNA match may strengthen the evidence for the prosecution, but an inconclusive DNA test result may not be sufficient to exculpate the accused, particularly when there is sufficient evidence proving his guilt. (PEOPLE versus CABIGCUEZ) (So diha gikan ang factor na totality of evidence) Take note that DNA, by considering the totality of evidence, can be merely circumstantial evidence for the prosecution such as when there is no eyewitness tending to prove that the accused raped the victim, for example. You have no eyewitness so you have to resort to circumstantial evidence.

based on the lectures of ATTY. JESS ESPEJO

conducted upon the saliva sample of Petrus Yau and the residual DNA found on the mask he wore), when analyzed and taken together, definitely lead to no other conclusion than that Petrus was the author of the kidnapping for ransom. When viewed as a whole the prosecution’s evidence effectively established his guilt beyond reasonable doubt. (That’s the totality of evidence)

(From C above) DNA results that exclude the putative parent form paternity shall be conclusive proof on non-paternity. If the value of the Probability of Paternity is less than 99.9%, the results of the DNA testing shall be considered as corroborative evidence, if the value of the Probability of Paternity is 99.9% or higher there shall be a disputable presumption of paternity.

DNA results that exclude the putative parent form paternity shall be conclusive proof of non-paternity. Excluded ka na, eh. So there’s a mismatch. Your DNA profile does not match the DNA profile of the putative parent. So clearly, you are excluded. If the value of the probability of paternity is less than 99.9%, the results of the DNA testing shall be considered as corroborative evidence. Which means there should be other types of evidence presented tending to establish paternity. But if the value of the probability of paternity is 99.9% or higher (i.e. 99.91%), there shall be no dispute on the issue of paternity. It is only disputable. It is still susceptible of contrary proof. Table of Probabilities of Paternity VALUE

USE OF DNA TESTING RESULT

Less than 99.9% (99.8999999+ and below)

Rule 133, Section 4. Circumstantial evidence, when sufficient. Circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

PEOPLE vs. YAU (2014) In a kidnapping for ransom case, the captor wore red mask which was retrieved as evidence of the case. A test conducted by the US Federal Bureau of Investigation reveals that the DNA found I the mask used by private complainant’s captor matched that of appellant Petrus Yau. (Modus operandi ng Sps. Yau to bring their victim unconscious sa taxi. And then as the captive, you wouldn’t know what happened to you. You would just wake up in a very dark place and surrounded by people with masks.)The prosecution presented several other pieces of circumstantial evidence. Take note that there was no direct evidence identifying Yau as the captor as the victim never saw Yau’s face. The Court agrees with the findings of the RTC and CA that the foregoing pieces of circumstantial evidence (including the DNA test

99.9% or higher

As corroborative evidence (in addition to traditional proof of filiation) As disputable presumption of paternity

NOTE : Section 9 (c) is taken from the pronouncement of the SC in Herrera vs. Alba, G.R. No. 148220, June 15, 2005, where the Court ruled: A complete match between the DNA profile of the child and the DNA profile of the putative father does not necessarily establish paternity. For this reason, trial courts should require at least 99.9% as a minimum value of Probability of Paternity (W) prior to a paternity inclusion. W is a numerical estimate for the likelihood of paternity of a putative father compared to the probability of a random match of two unrelated individuals. X X X DNA analysis that excludes the putative father from paternity should be conclusive proof of non-paternity. (This is letter A). If the value of W is less than 99.9% the results of the DNA analysis should be considered as corroborative evidence.(This is letter B) If the value of W is 99.9% or higher, then there is refutable presumption of paternity. (This is similar to disputable, so letter C). Now, how do you prove filiation? This is answered by the case of AGUILAR vs. SIASAT (2015) On means of proving filiation The filiation of illegitimate children, like legitimate children is

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LAW ON EVIDENCE established by:

based on the lectures of ATTY. JESS ESPEJO

defenses, presumption of legitimacy, and physical resemblance between the putative father and child.

(1) the record of birth appearing in the civil register or a final judgment; or (2) an admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence thereof, filiation shall be proved by: (1) the open and continuous possession of the status of a legitimate child; or (2) any other means allowed by the Rules of Court and special laws. (Sir: To my mind, this now includes DNA testing.) The due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing is, in itself, a consummated act of acknowledgment of the child, and no further court action is required. X X X Where, instead, a claim for recognition is predicated on other evidence merely tending to prove paternity, i.e., outside of a record of birth, a will, a statement before a court of record or an authentic writing, judicial action within the applicable statute of limitations is essential in order to establish the child’s acknowledgment.

LUCAS vs. LUCAS (2011) (Also a DNA testing case) There are four significant procedural aspects of a traditional paternity action which the parties have to face; 1) a prima facie case, 2) affirmative defenses, 3) presumption of legitimacy, and 4) physical resemblance between the putative father and the child.

Sir: To my mind, this is less reliable. When you talk about physical resemblance it’s very unreliable compared to DNA evidence or DNA testing results. ESTATE OF ONG vs. DIAZ (2007) A complaint for compulsory recognition with prayer for support pending litigation was filed by minor Joanne Diaz, represented by her mother and guardian, Jinky, against Rogelio G. Ong, before the RTC of Tarlac City. Jinky and Rogelio got acquainted in November 1993 in Tarlac City. This developed into friendship and later blossomed into love. At this time, however, Jinky was already married to a Japanese national. From January 1994 to September 1998, Jinky and Rogelio cohabited and lived together. From this live-in relationship, Joanne Rodjin Diaz was conceived and born on 25 February 1998. In September 1998, Rogelio abandoned Joanne and Jinky, and stopped supporting the child, alleging that he is not the father of the child. While the case was pending, Rogelio died. The burden of proving paternity is on the person who alleges that the putative father is the biological father of the child. There are four significant procedural aspects of a traditional paternity action which parties have to face: a prima facie case, affirmative

A child born to a husband and wife during a valid marriage is presumed legitimate. As a guaranty in favor of the child and to protect his status of legitimacy, Article 167 for the Family Code provides: Article 167. The children shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. With the advancement in the field of genetics, and the availability of new technology, it can now be determined with reasonable certainty whether Rogelio is the biological father of the minor, through DNA testing.

Can DNA testing still be made considering that Rogelio is already dead? 

The death of the petitioner does not ipso facto negate the application of DNA testing for as long as there exist appropriate biological samples of his DNA.  The term biological sample means any organic material originating from a person’s body, even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva, and other body fluids, tissues, hairs and bones.  Thus, even if Rogelio already died, any of the biological samples as enumerated above as may be available, may be used for DNA testing. In this case, petitioner has not shown the impossibility of obtaining an appropriate biological sample that can be utilized for the conduct of DNA testing. And even the death of Rogelio cannot bar the conduct of DNA testing. Sir: To my mind, this case is actually a recognition that the Philippines has already the technological capacity to conduct DNA testing even if the putative father is already dead. And then compare that to the previous cases where the SC was quite hesitant in even hinting on DNA testing. PEOPLE vs. UMANITO Citing Tecson vs. Commission on Elections, this Court held: In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to.

LUCAS vs. LUCAS (2011) In a petition to establish illegitimate filiation, the SC was confronted with the question: Is a prima facie showing of reasonable probability of paternity necessary before a court can issue a DNA testing order? (What’s a prima facie case? You prove preliminarily that there is a probability of parentage. How do you do that? So prior to asking for a DNA testing order, you present witnesses tending to show the traditional proof of filiation. Nga ning-aknowledge niya na anak siya niya; nagsign siya ug birth certificate, etc.)

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LAW ON EVIDENCE (Note that Section 4 of the Rule on DNA Evidence does not mention prima facie case as a requirement.)

based on the lectures of ATTY. JESS ESPEJO

In criminal cases: i.

HELD: In some states, to warrant the issuance of DNA testing order, there must be a show cause hearing wherein the applicant must first present sufficient evidence to establish a prima facie case or a reasonable possibility of paternity or good cause for the holding of the test. The same condition precedent should be applied in our jurisdiction to protect the putative father from mere harassment suits. Thus, during the hearing on the motion for DNA testing, the petitioner must present prima facie evidence or establish a reasonable possibility of paternity. (The SC is adding this as a requirement despite its absence in Sec.4) Notwithstanding these, it should be stressed that the issuance of a DNA testing order remains discretionary upon the court. The court may, for example, consider whether there is absolute necessity for the DNA testing. If there is already preponderance of evidence to establish paternity and the DNA test result would only be corroborative, the court may, in its discretion, disallow a DNA testing.

Sec. 11. Confidentiality. – DNA profiles and all results or other information obtained from DNA testing shall be confidential. Except upon order of the court, a DNA profile and all results or other information obtained from DNA testing shall only be released to any of the following, under such terms and conditions as may be set forth by the court: A. B.

C. D. E.

Persons from whom the sample was taken; Lawyers representing parties in the case or action where the DNA evidence is offered and presented or sought to be offered and presented; Lawyers of private complainants in a criminal action; Duly authorized law enforcement agencies; and Other persons as determined by the court.

Whoever discloses, utilizes or publishes in any form any information concerning a DNA profile without the proper court order shall be liable for indirect contempt of the court wherein such DNA evidence was offered, presented or sought to be offered and presented. Where the person from whom the biological sample was taken files a written verified request to the court that allowed the DNA testing for the disclosure of the DNA profile of the person and all results or other information obtained from the DNA testing, the same may be disclosed to the persons named in the written verified request.

Sec. 12. Preservation of DNA Evidence. The trial court shall preserve the DNA evidence in its totality, including all biological samples, DNA profiles and results or other genetic information obtained from DNA testing. For this purpose, the court may order the appropriate government agency to preserve the DNA evidence as follows: (so for biological samples, dapat properly stored; preserved in freezers)

for not less than the period of time that any person is under trial for an offense; or ii. in case the accused is serving sentence, until such time as the accused has served his sentence; (NOTE: See Lejano vs. People – the DNA was not preserved) In all other cases, until such time as the decision in the case where the DNA evidence was introduced has become final and executory. The court may allow the physical destruction of a biological sample before the expiration of the periods set forth above, provided that: a.

A court order to that effect has been secured; or

b.

The person from whom the DNA sample was obtained has consented in writing to the disposal of the DNA evidence.

Sir: To my mind, letter B is flawed because it talks about the person from whom the DNA sample was obtained. Let’s say in a case of rape na nabuntis ang babae and gave birth to a child. Kinsa kaha ang kuhaan ug biological sample? The alleged rapist and the child that was born allegedly out of the rape. Now this child may actually consent in writing to have the DNA evidence disposed of. Pwede diba? And then gipa-sibat sa mama. And the samples are now lost. How can you now have confirmatory DNA testing? To my mind, the better phraseology would be “the accused” can actually consent in writing to the disposal of the DNA evidence; limited to the accused. Penal laws and even procedural laws are construed in favor of the accused rather than the prosecution. It’s the accused who stands to be benefited by this. He is the one who can apply for post-conviction DNA testing. Sec. 13. Applicability to Pending Cases. Except as provided in Section 6 and 10 hereof, this Rule shall apply to cases pending at the time of its effectivity. (So, it retroacts) Sec. 14. Effectivity. This Rule shall take effect on October 15, 2007, following publication in a newspaper of general circulation.

SURVEY OF CASES on DNA and Right to Acquittal PEOPLE vs. PASCUAL (2009) In a rape with homicide case, forensic chemist testified that based on DNA testing, she could not determine if a woman was raped or not. She further declared that in this case, it was possible that the stained vaginal smear prevented a complete and good result for the DNA profiling. Upon being questioned by the court, the forensic chemist confirmed that DNA testing on the subject specimens was inconclusive and that the result was not good, as the specimens submitted, i.e., the stained vaginal smear and the dirty white panty, had already undergone serological analysis. (So, blood test. It was already previously tested. And so the results were inconclusive. It actually did not yield a positive match with the DNA of the accused. Now, should that entitle the accused to an acquittal?) Here, while the DNA analysis of the victim’s vaginal smear showed no complete profile of the accused-appellant, the same is not

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LAW ON EVIDENCE conclusive considering that said specimen was already stained or contaminated which, according to the forensic chemist, Aida Villoria-Magsipoc, deters a complete and good result for DNA profiling. She explained in her testimony that generally, with the vaginal smear, they could see if there is a male profile in the smear. However in this case, when they received the vaginal smear on the stained slide, the same had already undergone serological analysis. Hence, according to the chemist, the DNA testing conducted on the specimen subject of this case was inconclusive.40 In light of this flawed procedure, we hold that the result of the DNA examination does not entitle accused-appellant to an acquittal. PEOPLE versus HIPONA (2010) Appellant argues that he should only be held liable for robbery and not the complex crime of Rape with Homicide (and Robbery). He cites the testimony of prosecution witness Aida Vilora-Magsipoc, DNA expert of the National Bureau of Investigation, that she found the vaginal smears taken from AAA to be negative of appellant’s DNA. Appellant’s argument fails. The presence of spermatozoa is not essential in finding that rape was committed, the important consideration being not the emission of semen but the penetration of the female genitalia by the male organ. As underlined above, the post-mortem examination of AAA’s body revealed fresh hymenal lacerations which are consistent with findings of rape. (Isn’t it that the Rule on DNA evidence provides that if it is a finding that if it does not match, it has an effect of exclusion. You don’t need to belabor that. However, the Court still would not acquit accused here. It remains to apply the rule that in rape cases, it is enough that there was penetration. Of course it’s true. But in a similar case here of People vs. Ponga, the victim’s already dead. Who identified the accused? Eyewitness. Remember that as a general rule, rapes are unwitnessed.)

PEOPLE vs. CABIGCUEZ (2010)  Appellant cannot seek acquittal on the basis of the negative result of the DNA test on the specimen conducted by the NBI.  Notably, neither a positive DNA match of the semen nor the presence of spermatozoa is essential in finding that rape was committed. The important consideration in rape cases is not the emission of semen but the penetration of the female genitalia by the male organ. (Pabalik-balik lang ang SC. Wala nay bili ang DNA testing.)

PEOPLE vs. LUCERO (2011) The DNA test is not essential, while there exists other evidence pinning down accused-appellant as the perpetrator. Indeed, if he honestly thought that the DNA test could have proved his innocence, he could have asked for the conduct of said test during his trial instead of belatedly raising it on appeal, and attempting to dictate upon the prosecution what course of actions it should have undertaken. (While you want to avail of DNA testing, do it immediately before the trial court pa lang. What you need to do is to have DNA testing done at the trial court stage pa lang daan because you can use that as your reasonable doubt. You have learned from the previous cases that post-DNA testing does not do you anything. The SC is not a trier of facts.)

based on the lectures of ATTY. JESS ESPEJO

VIZCONDE MASSACRE The Vizconde murder case, colloquially known as the Vizconde massacre, was the multiple homicide of member of the Vizconde family on 30 June 1991 at their residence in BF Homes, Parañaque.  Estrellita, 49, had suffered thirteen (13) stab wounds; Carmela, 18, had suffered seventeen (17) stab wounds and had been raped before she was killed; and Jennifer, 6, had nineteen (19) stab wounds.  Lauro Vizconde, Estrellita’s husband, and the father of Carmela and Jennifer, was in the United States on business when the murders took place.

LEJANO vs. PEOPLE (2010) Four years after the massacre, in 1995, the NBI announced that it had solved the crime. It presented star-witness Jessica M. Alfaro, one of its informers, who claimed that she witnessed the crime. (Saludo kaayo si Judge Tolentino sa iya. Her testimony was believed.) She pointed to the accused Hubert Jeffrey P. Webb, Antonio tony Boy Lejano, Artemio Dong Ventura, Michael A. Gatchalian, Hospicio Pyke Fernandez, Peter Estrada, Miguel Ging Rodriguez, and Joey Filart as the culprits. She also tagged accused police officer, Gerardo Biong, as an accessory after the fact. Relying primarily on Alfaro’s testimony, on August 10, 1995, the public prosecutors filed an information for rape with homicide against Webb, et.al. On January 4, 2000, after four (4) years of arduous hearings, the trial court rendered judgment, finding all the accused guilty as charged and imposing on Webb, Lejano, Gatchalian, Fernandez, Estrada, and Rodriguez the penalty of reclusion perpetua and on Biong, an indeterminate prison term of 11 years, 4 months, and 1 day to 12 years. On appeal, the CA affirmed the trial courts decision. On motion for reconsideration by the accused, the CA’s Special Division of 5 members voted 3 against 2 to deny the motion. During the appeal to the SC, the Court issued a Resolution granting the request of Webb to submit for DNA analysis the semen specimen taken from Carmela’s cadaver, which specimen was believed to be still under the safekeeping of the NBI. The Court granted the request pursuant to Section 4 of the Rule on DNA Evidence. Unfortunately, on April 27, 2010 the NBI informed the Court that it no longer has custody of the specimen, the same having been turned over to the trial court. The trial record shows, however, that the specimen was not among the object evidence that the prosecution offered in evidence in the case. The outcome prompted accused Webb to file an urgent motion to acquit on the ground that the government’s failure to preserve such vital evidence has resulted in the denial of his right to due process. ISSUE: Accused Webb’s motion to acquit present a threshold issue: whether or not the Court should acquit him outright, given the government’s failure to produce the semen specimen that the NBI found on Carmela’s cadaver, thus depriving him of evidence that would prove his innocence.

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LAW ON EVIDENCE Webb claims, citing Brady v. Maryland, that he is entitled to outright acquittal on the ground of violation of his right to due process given the State’s failure to produce on order of the Court either by negligence or willful suppression the semen specimen taken from Carmela. HELD: The medical evidence clearly established that Carmela was raped and, consistent with this, semen specimen was found in her. It is true that Alfaro identified Webb in her testimony as Carmela’s rapist and killer but serious questions had been raised about her credibility. At the very least, there exists a possibility that Alfaro had lied. On the other hand, the semen specimen taken from Carmela cannot possibly lie. It cannot be coached or allured by a promise of reward or financial support. If, on examination, the DNA of the subject specimen does not belong to Webb, then he did not rape Carmela. It is that simple. Thus, the Court would have bgeen able to determine that Alfaro committed perjury in saying that he did. Still, Webb is not entitled to acquittal for the failure of the State to produce the semen specimen, for one thing the ruling in Brady v. Maryland that he cites has long been overtaken by the decision in Arizona v. Youngblood, where the U.S, Supreme Court held that due process does not require the State to preserve the semen specimen although it might be useful to the accused unless the latter is able to show bad faith on the part of the prosecution or the police. For, another, when Webb raised the DNA issue, the rule governing DNA evidence did not yet exist, the country did not yet have the technology for conducting the test, and no Philippine precedent had as yet recognized its admissibility as evidence. Consequently, the idea of keeping the specimen secure even after the trial court rejected the motion for DNA testing did not come up. Indeed, neither Webb nor his co-accused brought up the matter of preserving the specimen in the meantime. Parenthetically, after the trial court denied Webb’s application for DNA testing, he allowed the proceeding to move on when he had on at least 2 occasions gone up to the CA or the SC to challenge alleged arbitrary actions taken against him and the other accused. They raised the DNA issue before the CA but merely as an error committed by the trial court in rendering its decision in the case. None of the accused filed a motion with the appeals court to have the DNA test done pending adjudication of their appeal. This, even when the SC had in the meantime passed the rules allowing such test. Considering the accused’s lack of interest in having such test done, the State cannot be deemed put on reasonable notice that it would be required to produce the semen specimen at some future time.

BRADY vs. MARYLAND (1963) Maryland prosecuted Brady and a companion, Boblit, for murder. Brady admitted being involved in the murder, but claimed Boblit had done the actual killing. The prosecution had withheld a written statement by Boblit confessing that he had committed the act of killing by himself. The Maryland Court of Appeals had affirmed the conviction and remanded the case for retrial only on the question of punishment. US SC HELD: Withholding exculpatory evidence violates due process where the evidence is material either to guilt or

based on the lectures of ATTY. JESS ESPEJO

punishment the court determined that, under Maryland state law, the withheld evidence could not have exculpated the defendant but was material to the level of punishment he would be given.

NOTE: Right now, the governing rule is Section 12 which mandates preservation of DNA evidence in criminal cases for not less than the period of time that any person is under trial for an offense or, in case the accused is serving sentence, until such time as the accused has served his sentence. Webb’s main defense is ALIBI He was able to present very credible evidence that he was at the US at the time of the incident. POSTULATE TO REMEMBER: Alibi, being a negative evidence, is an inherently weak defense. It is always discredited by positive eye witness identification. Correlation: In Andal, etc., the SC always ruled that eyewitness identification cannot overrule DNA evidence tending to prove that the DNA samples did not match. (It’s a stubborn recitation of something without reference to the facts. And my contention is you have to look at the factual milieu of the case before you apply that very stringent doctrine: that penetration is the only element of rape.) LEJANO vs. PEOPLE (2010) To be acceptable, the positive identification must meet at least two criteria: First, the positive identification of the offender must come from a credible witness. She is credible who can be trusted to tell the truth, usually based on past experiences with her. Her word has, to one who knows her, its weight in gold. Second, the witness’ story of what she personally saw must be believable, not inherently contrived. A witness who testifies about something she never saw runs into inconsistencies and makes bewildering claims. Here, as already fully discussed, Alfaro and her testimony fail to meet the above criteria.

Aftermath: Vizconde filed a Motion for Reconsideration of the Webb acquittal. But this was denied by the SC because of double jeopardy. He died on Feb.13 after suffering a series of heart attacks. He got his wish to be buried next to spouse Estrellita and children Carmela and Jennifer at Manial Memorial Park in Parañaque City. He died without obtaining any measure of justice or peace of mind after the brutal slaying of his family. Webb was already 42 years old when he was released. He ran for councilor for the City of Parañaque last May 2016. Vandolph won. After the SC doctrinally immortalized her lies, Alfaro fled to Canada. In March 2011, the Webb family filed a criminal case against her for false testimony. Fatetur facinus qui judicium fugit. He who flees from prosecution confesses his guilt.

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LAW ON EVIDENCE August 3, 2016

RULE 130 – RULES OF ADMISSIBILITY OF DOCUMENTS  Best Evidence Rule  Original of a Document  Procedure in Presentation of Secondary Proof  Parol Evidence Rule  Rule and Exceptions  Statute of Frauds  Compared with Parol Evidence Rule Q: What is a document?

based on the lectures of ATTY. JESS ESPEJO

 For documents, when there is an original, there are rules for substitution that would apply (See Sections 4 to 8, Rule 130).  For objects, a proponent cannot present a copy of a gun or rock. He must present the gun or rock itself. There is no substitutionary evidence. But for documents, there are allowable instances where you can present a mere copy of an original.

x x x (a) The original of the document is one the contents of which are the subject of inquiry. x x x  Do not view originality in terms of time of creation.Kung kanus-a ba na, unsay nauna? Copy A or Copy B?  Rather, you ought to determine the subject of inquiry in order for you to determine which is the original. SPOUSES ALFARO VS. CA (2007)

RULE 130, Section 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) I want to discuss Section 4 first before we proceed to discuss Section 3 because while Section 3 already talks about the Best Evidence Rule and tells you a little bit about the original of a document, it does so without first determining what an original document is. So to my mind the key to understanding Section 3 would be a prior knowledge of Section 4. So mag-start ta sa Section 4. Section 4. Original of document. (a) The original of the document is one the contents of which are the subject of inquiry. (b) When a document is in two or more copies executed at or about the same time with identical contents, all such copies are equally regarded as originals. (c) When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. (3a) Q: What is the original of a document?  Layman would understand the word “original” as “first” or “earliest” or as an adjective.  Being law students, we know that the term “original” has a different meaning. In layman’s understanding when you say “original”, it’s an adjective. But we use the term “original” as a noun.  The term “original” under Rule 130 is used as a noun. Conversely, in evidence, an original need not be the first or the earliest. The minimum requirement is that it must be one the contents of which is the subject of the inquiry.

HELD: Original does not mean the first paper written, in contrast to a copy or transcript made later. The original depends upon the issue to be proved. It is immaterial whether that document was written before or after another, was copied from another, or was itself used to copy from, as long as its contents are the subject of inquiry. That is what the SC is saying, tan-awon nato ang subject of inquiry. Dean Iñigo’s Example:  Libel Cases  Under Article 353 of the Revised Penal Code of the Philippines, libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead. Thus, the elements of libel are: (a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and, (d) existence of malice. (DAEZ VS. CA, GR No. 47971, October 31 1990) Gi-underline nako ang letter (b) “publication of the imputation” because without the element of publicity, there is no crime. It has to be published in the sense. Article 355. Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same. The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof.

Q: Why do you call it an “original”?

Q: How is a news article published?

Quite simple because it is that source of evidence that from which a secondary evidence is copied or is sourced. Take note that there is no such thing as an original of an object.

A reporter types a story, with or without a source, and submits the same to his editor. The editor, after presumably doing some editing, then publishes the story in the newspaper.

 Section 3 and 4 (Rule 130) apply only to documents and not objects.

Question: In a prosecution for libel, which is considered the original? The story as typed by the writer or the story as published in the newspaper?

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LAW ON EVIDENCE You have to really look at it. In a crime of libel, what would be the subject of inquiry? According to Dean Iñigo, it depends. If the subject of inquiry is who wrote the article, the original would be the story as prepared or typed by the author. But if the issue to be established is whether the published story is libelous or not the original is the story which appeared in print. You can just imagine pinaka-original sa tanan-tanan. How many newspapers are in circulation that can be considered as the original of the document in libel considering that the libelous article becomes the subject of inquiry. American Jurisprudence  In a suit against the telegraph company for failure to transmit a message, the original is the message submitted to the company for transmission (Jones on Evidence, § 210 citing Conyers vs. Postal Cable Co. 92 Ga. 619, 19 S.E. 253 Am. St. Rep. 100). If the suit is for damages by the sender against the telegraph company because of delay in transmission, the original would be the message as received by the recipient (Jones on Evidence, §210 citing Collins vs. Western Union, 145 Ala. 41241 So. 160, 8 ann. Cas. 268).  But if the subject of inquiry is the inaccuracy of transmission of the telegram, the originals would be both telegrams as sent and received (Regalado, Vol. II, pp. 722-723, 2008 ed.) It is not that difficult to determine kung unsa ang original if you know the subject of inquiry. xxx (b) When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regard as originals. x x x  This is also known as the DUPLICATE ORIGINAL RULE. Although there is no ruling of the SC specifically telling us that kini na paragraph is called the Duplicate Original Rule. Manila Hotel(??) would tell you that.  Any such copy may be introduced in evidence without accounting for the non-production of the other copies if naa kay duplicate or triplicate, multiplicate original. Examples:  If a data entry clerk makes an entry of a transaction which is repeated several times for the files of each department of the Company, each document where the entry was made is an original as long as the entries are made at or near the time of the transaction and in the regular course of business.  When a lawyer writes a pleading in two or more copies which are executed at the same time, with identical contents, each document is an original. Try to recall how lawyers did it or imagine how lawyers did it in the 19kupong-kupongs compared to how we do it right now. . . Carbon copy, typewriter, just very difficult. Because it was very impractical to just type one pleading and after doing that you again type

based on the lectures of ATTY. JESS ESPEJO

another pleading with the same contents, it would take you forever to do that, okay lang na naay carbon copies. All of those carbon copies are equally regarded as originals.  Writings with identical contents made by printing, mimeographing, lithography and other similar methods executed at the same time are considered originals. Thus, each newspaper sold in the newsstand is an original in itself.

Notarial Acts 2004 Rules on Notarial Practice Rule VI, Sec. 2. Entries in the Notarial Register. – XXX d) When the instrument or document is a contract, the notary public shall keep an original copy thereof as part of his records and enter in said records a brief description of the substance thereof and shall give to each entry a consecutive number, beginning with number one in each calendar year. He shall also retain a duplicate original copy for the Clerk of Court. So let’s say there is a contract dispute regarding the provisions in a contract to sell. Remember that under the Rules on Notarial Practice, what’s the minimum number of copies that should be retained by a Notary Public who of course presides over the notarization of the contract? Under letter (d) he has to keep an original copy as part of his records. And there should be a duplicate original copy for the Clerk of Court. Minimum of two. But that is not what happens in practice because if you’re going to a lawyer to have a contract drafted, of course at least two parties to a contract. So each party to a contract would also deserve and require a copy. So in addition to the two required by the Notarial Rules, for every party who is available, you have to give a copy as well. In all probability that would also be an original copy. So executed at or about the same time with identical contents. BPI VS. SMP (2009) FACTS: MP undertook to supply polysterene products to Clothespack in the amount of $118,500. As payment, Clothespack issued postdated checks. The Sales Executive of SMP executed a provisional receipt in triplicate with a notation “Materials belong to SMP Inc. until your checks clear.” The checks bounced. In the meantime, in a case filed by Far East Bank against Clothespack for collection of a sum of money and Clothespack was subjected to a writ of preliminary attachment, which included the polysterene products sold to it by SMP. FEB secured a favorable judgment which became final and executor which led to the execution against Clothespak’s properties inclusive of the goods earlier attached. SMP filed an Affidavit of Third Party Claim over the polysterene products. It anchors its claim of ownership over the goods by virtue of the provisional receipt and presented it during trial. FEB objected on the ground that SMP only presented the triplicate copy without presenting the original. HELD: The receipt presented by SMP is deemed as an original, considering that the triplicate copy of the provisional receipt was

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LAW ON EVIDENCE executed at the same time as the other copies of the same receipt involving the same transaction. So no need to present the other copies, that is an original in itself. Very simple case but it illustrates two important principles, one in evidence and one in sales. CAPITAL SHOES VS. TRAVELER KIDS (2014) HELD: When carbon sheet are inserted between two or more sheets of writing paper so that the writing of a contract upon the outside sheet, including the signature of the party to be charged thereby, produces a facsimile upon the sheets beneath, such signature being thus reproduced by the same stroke of pen which made the surface or exposed impression, all of the sheets so written on are regarded as duplicate originals and either of them may be introduced in evidence as such without accounting for the nonproduction of the others. So that’s what you need to remember, kung duplicate, triplicate originals, multiplicate originals, only present one that would suffice. No need to account for the other copies. That’s all that you need to present.  Where a seller usually prepared two (2) copies of invoices for a particular transaction, giving once copy to a client and retaining the other copy, Section 4(b) of Rule 130 is applicable. American Jurisprudence  Where a document is executed in duplicate or multiplicate form, each one of the parts is primary evidence of the contents of the document, and the other need not be produced. In such a case, each is deemed an original. If several copies of a document are made at the same time by inserting on each page a carbon paper but only one of them is signed, the signed copy is the original and the others are only copies. That’s an important principle to remember especially so that it came out in the bar examinations in 1997. BAR QUESTION (1997)  When JZE loaned a sum of money to Bangs, JZE typed a single copy of the promissory note, which they both signed. JZE made two photocopies of the promissory note, giving one copy to Bangs and retaining the other copy, JZE entrusted the typewritten copy to his counsel for safekeeping. The copy with JZE’s counsel was destroyed when the law office was burned by Maja. (a)

In an action to collect the promissory note, which is deemed to be the “original” copy? Among the copies that existed, would it be the one kept by counsel? Would it be the one that were mere photocopies? (b) Can the photocopies in the hands of the parties be considered “duplicate” originals? Suggested Answers (a) The original is the one typed and signed by both parties and which was lost when the office of the counsel of JZE was

based on the lectures of ATTY. JESS ESPEJO

burned. It is the one the contents of which is the subject of inquiry. (b) The photocopies are not duplicate originals. They cannot be deemed as having been made at the same time with the original because they were not signed unlike the original. But what if this is what you do, you make one copy and then you have it photocopied. Isa ra gyud imong gi-type, nagpa-photocopy ka. Gipirmahan kadtong originally na gi-type nimo, gipirmahan pud ang duha ka photocopy. Which one will be the original? All of them will become original. So that’s the principle that you need to remember. Originality therefore is not about form. Kung unsa ba ang original, kung unsa ang photocopy. It depends now on which of the documents have been authenticated by the signatures of the parties. So if everything is signed, regardless of whether or not photocopy lang tong uban na mga copies, well they’re all originals because everything has been signed. That’s what we need to remember. x x x (c) When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. x x x To be considered originals under this provision, certain requirements must be complied with: (a) there must be entries made and repeated in the regular course of business; (b) the entries must be made at or near the time of the transaction. Can you think what entries in any business that you know would be regularly repeated, one copy from another at or near the time of the transaction. Gisulat nimo, gikopya na pud nimo sa lain, all of those entries are equally regarded as originals. Example in Accounting: Difference between a journal and a ledger. Everything that you do, supposed to be, it has an entry in that document called a Journal. You write an entry to Journal but that is the same entry that you’re going to transfer to a Ledger. So that’s the meaning here of an entry repeated in the regular course of business, one being copied from another, at or near the time of the transaction, all entries are likewise equally regarded as the originals. Example in Nursing: Let’s say the subject of inquiry is what the doctor prescribed to a patient who died because he was allergic to the medication, you have three originals. (1) The instructions of the doctor (2) the medication tickets and (3) the patient’s record. So repeated in the regular course of business, one being copied from another, at or near the time of the transaction. RAMOS VS. CA (1991) FACTS: Ramos, the bank manager, and several were prosecuted for Estafa, their modus operandi was that the depositors would issue worthless checks and Ramos would allow the encashment of the same or the drawing against uncleared check deposits (DAUD).

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

Evidence presented by the prosecution included audit worksheets, bank ledgers and Xerox copies of the dishonored checks and check return slip.

legal relations, the fallibility of the human memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplicates are the concerns addressed by the best evidence rule.

Ramos objected on the ground that these documents were not originals.

Take note of the case LEE VS. PEOPLE (2004), it’s a very important case.

HELD: Entries in the account ledgers of the depositors which are on file on the bank may be regarded as originals. 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.

BEST EVIDENCE RULE Section 3.Original document must be produced; exceptions – When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; Take note that in the 1994 Bar examinations, a weird question was asked. Why is the best evidence rule considered as a misnomer? mali na pagkatawag. Best Evidence Rule: A Misnomer (1994 Bar) The term “Best Evidence” has been a source of misconception. It has often been misunderstood and given a meaning it does not deserve. Despite the word “best”, the rule does not proclaim itself as the highest and most reliable evidence in the hierarchy of evidence. The term “best” has nothing to do with the degree of its probative value in relation to other types of evidence. It is not intended to mean the “most superior” evidence. More accurately, it is the “original document” rule, or the “primary evidence” rule. Q: Why do we need to present the original? Why can we not present mere duplicate copies? RATIONALE: The underlying purpose of the best evidence rule is the prevention of fraud or mistake in the proof of the contents of a writing. This Rule is adopted for the prevention of fraud and is declared to be essential to the pure administration of justice. (Moran, Vol. 5, p. 12) If a party is in possession of such evidence and withholds it, the presumption naturally arises that the better evidence is withheld for fraudulent purposes. (Francisco, Rules of Court, Vol. VII, Part I, pp. 121, 122) LEE VS. PEOPLE (2004) HELD: Before the onset of liberal rules of discovery, and modern techniques of electronic copying, the best evidence rule was designed to guard against incomplete or fraudulent proof and the introduction of altered copies. But the modern justification for the rule has expanded from the prevention of fraud to a recognition that writings occupy a central position in the law. The importance of the precise terms of writings in the world of

Q: When is BER APPLICABLE?  It’s only applicable when the subject of inquiry must be the contents of a document.  The rule applies only when the purpose is to establish the terms of a writing. When the evidence introduced concerns some external fact about a writing like its existence, execution or delivery without reference to its terms, the rule cannot be invoked. Q: When would it be INAPPLICABLE?  We have that from the case of LEE VS. PEOPLE (2004)lang gihapon.The BER does not apply to: 1. Proof of facts collateral to the issues such as the nature, appearance or condition of physical objects; or 2. Evidence relating to a matter which does not come from the foundation of the cause of action or defense; or 3. When a party uses a document to prove the existence of an independent fact, as to which the writing is merely collated or incidental. 1. Proof of facts collateral to the issues such as the nature, appearance or condition of physical objects; or To simplify everything, the BER simply does not apply to object evidence. It’s as simple as that, kanang no. 1. Why am I emphasizing that? It’s been asked in the bar exam as well in 1994. BAR QUESTION (1994) 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 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. (a) Is the photocopy object or documentary evidence? (b) Is the photocopy admissible in evidence? How do you argue that it’s object or documentary evidence. You go by definition, that’s the best thing to do it. But you need to remember is what would be the subject of inquiry? If the subject of inquiry would be the contents of a document, then you’re talking about documentary evidence. But in a buy-bust operation, ang marked money, are you so concerned what is written in the marked money? Simply marked money is an object addressed to the senses of the court. Of course, marked money here is an object. We’re not talking about terms of a writing. Answers: (a) The photocopy is object evidence. It is not documentary evidence because it is not offered as proof of its contents.

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LAW ON EVIDENCE (b) Yes, the photocopy is admissible in evidence because the best evidence rule does not apply to object or real evidence. Q: What is the COLLATERAL FACTS RULE?  A document or writing which is merely “collateral” to the issue involved in the case on trial need not be proved. Where the purpose of presenting a document is not to prove its contents, but merely to give coherence to, or to make intelligible the testimony of a witness regarding a fact contemporaneous to the writing, the original of the document need not be presented. The subject of inquiry therefore does not relate to what is stated in the document, in the writing. What is the subject of inquiry? Something extraneous to the writing which a witness may use to refer to these extraneous facts. Relate this with:

based on the lectures of ATTY. JESS ESPEJO

 Yes. The photocopy of the credit card imprint reasonably tends to establish the probability or improbability of the fact in issue. The credit card imprint places Gerald at the scene of the crime which is contrary to his alibi. If he was at the scene of the crime, it would not be improbable for him to have the opportunity to poison Matteo. Q: How do we now apply that to the Collateral Facts Rule?  The photocopy of the credit card imprint is merely “collateral” to the issue involved in the case. It need not be proved. The purpose of presenting it is not to prove its contents, but merely to give coherence to, or to make intelligible the testimony of Piolo regarding a fact contemporaneous to the writing, i.e., that Gerald was at the restaurant at the time of the alleged poisoning. Thus, the original of the imprint need not be presented. Q: If you apply strictly the BER, would Piolo be able to use the photocopy of the credit card imprint or receipt?  No, it’s not original. You present the original mismo.

Rule 128, Section 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. It may not be the fact in issue but it has relevance because it tends to establish the probability or improbability of the fact in issue. It’s a collateral matter, it’s circumstantial to the fact in issue. It’s not direct proof but it is relevant nonetheless. Case Study: Poison Poisoning Poison  Facts: Gerald was prosecuted for murdering Matteo. The prosecution alleged that he poisoned Matteo’s drink while they were dining at the restaurant on October 31, 2015, discussing how they are going further to corrupt the virtues of otherwise innocent ladies. Gerald denies being at the said restaurant on the said date and thus, he could not have been the one who poisoned Matteo.  The prosecution presented as a witness Piolo who brought a photocopy of a credit card imprint with Gerald’s name and signature on it. The photocopy also contains the date and time when the credit card was allegedly swiped.  Gerald questioned the admissibility of the photocopy because it was not original and is therefore violative of the Best Evidence Rule.

Q: But is the fact in issue here the contents of the credit card print out?  No, it’s not the fact in issue in the case but it can still be used in the case, it being a mere collateral fact under the Collateral Facts Rule. That’s also the way to explain kung unsa tong nakabutang na “collateral” in the case of LEE VS. PEOPLE (2004). 2. Evidence relating to a matter which does not come from the foundation of the cause of action or defense; or 3. When a party uses a document to prove the existence of an independent fact, as to which the writing is merely collated or incidental. It’s a document but is it really the foundation of your cause of action or your defense? No, it can be presented despite the fact that it’s not original. Like a party uses a document to prove the existence of an independent fact, a contemporaneous fact, a collateral fact, as to which the writing is merely collated or incidental, the BER does not apply. Q: When is the document merely collaterally in issue?

 Whether or not Gerald killed Matteo.

 When the documents is involved in the inquiry but the document is only collaterally in issue, the best evidence rule does not apply. A document is collaterally in issue when the purpose of introducing the document is not to establish its terms but to show facts that have no reference to its contents like its existence, condition, execution or delivery.

Q: Under Rule 128, Section 4, does the photocopy have such a relation to the fact in issue as to induce belief in its existence or nonexistence?

Is the BER applicable to deficiency assessment of taxes? Or would photocopies be okay to determine whether or not naa ba kay deficiency taxes? NO.

 No. The receipt does not directly prove whether Gerald killed Matteo.

CIR VS. HANTEX TRADING (2005)

Resolution: Q: What is the fact in issue here?

Q: But is it collaterally relevant?

HELD: The best evidence obtainable under Section 16 of the 1977 NIRC, as amended, does not include mere photocopies of

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LAW ON EVIDENCE records/documents. The petitioner, in making a preliminary and final tax deficiency assessment against a taxpayer, cannot anchor the said assessment on mere machine copies of records/documents. Indeed, in United States vs. Davey, the U.S. nd Court of Appeals (2 Circuit) ruled that where the accuracy of a taxpayer’s return is being checked, the government is entitled to use the original records rather than be forced to accept purported copies which present the risk of error or tampering. In order to determine kung naa bay deficiency taxes na dapat bayaran ang usa ka taxpayer, there has to be original records presented. The BIR should rely on original records than be forced to accept purported copies which present the risk of errors or tampering. So medyo strict ta gamay when we talk about the tax collection efforts of the government. Take note because this is a rule of admissibility, it can be waived. Q: How can it be waived?  The best evidence rule may be waived if not raised in the trial or for failure of the other party to object.  All rules of admissibility can be waived. So if you do not know the rule to apply in order for you to properly object, you therefore waive it. HEIRS OF DELA CRUZ VS. CA (1998) HELD: If the party against whom the secondary evidence is offered does not object thereto when the same is offered in evidence, the secondary evidence becomes primary evidence, its probative value must still meet the various tests by which its reliability is to be determined. Its admissibility should not be confused with its probative value.

based on the lectures of ATTY. JESS ESPEJO

So for purposes of simplicity and easier understanding, allow me to restate the BER. Restatement of BER  The original of a document must be presented unless the proponent can justify its unavailability in the manner provided in the Rules. If the proponent can justify, copy can be presented.  THE PROPONENT HAS TO LAY DOWN THE BASIS FOR THE ADMISSION OF THE COPY IN LIEU OF THE ORIGINAL. Q: So what would be the justifications for the unavailability of the original that would allow you to present secondary or substitutionary evidence? Allowed Justifications:  When the original has been lost or destroyed, or cannot be produce in court, without bad faith on the part of the offeror.  When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to product it after reasonable notice;  When the original consists of numerous accounts or other documents, which cannot be examine in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and  When the original is a public record in the custody of a public officer or is recorded in a public office. We go to the exceptions one by one. x x x (a) When the original has been lost or destroyed, or cannot be produce in court, without bad faith on the part of the offeror. x x x Loss, Destruction and Unavailability

You fail to object to the introduction of a photocopy but the court still does not believe the contents of the photocopy and would have wanted the original to be presented. So it’s the court’s call, the court will determine whether this evidence is believable or not. It totally disregarded (?) or it might even put its entire decision on that secondary evidence. As we will see later on in the case of ESTRADA VS. DESIERTO (2001), we’ll discuss that later on. The law requires that you have to present the original, that’s the general rule. But it’s not available, you cannot find it anymore, you don’t know where it is. Does it mean the end of the world for you if you are the party litigant? Of course no.

Does the Rules of Court define loss? It does not. And so we have (?) to the only definition of loss that we know and that is from Article 1189 of the Civil Code. And you will see that it applies also to remedial law. Define Loss  It is understood that the thing is lost when it perishes, or goes out of commerce, or disappears in such a way that its existence is unknown or it cannot be recovered. (Article 1189, Civil Code) That’s the only definition of loss under the law and that is also the way we should define under the rules. Wala may lain.

Q: But the original is unavailable? What about destruction?  The proponent or party must present the original document and not a mere copy thereof. So long as the original is available, no other evidence can be substituted for the original. Q: What should be done if the original cannot be presented? When will the exceptions apply?  The party must find a legal justification for the failure to present the original and then present secondary evidence. That’s the only time that you can present a mere copy.

 Destruction means the obliteration of a document such as by tearing, shredding or burning. It can also include acts of alteration that would render the contents of a document unintelligible for the purpose it is offered in evidence. This definition I got from Succession. So there’s an original of a document, that’s the only original that you have, the rest of them you have photocopies.  Unavailability may be PHYSICAL or LEGAL.

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LAW ON EVIDENCE 1) Physical unavailability may refer to cases where the original consists of inscription on immovable objects or monuments and even gravestones. Di ba I explained to you already, remember that bato with a negotiable instrument in it? It doesn’t matter what the material is. It could be engraved in stone or written on human skin that would be considered a document provided the subject of inquiry would be contents of a document. If it is offered as proof of its contents then it’s a document. So what if what you want to present would be an inscription on a building? You cannot bring it in court so you need to resort to secondary evidence. What type of secondary evidence? You may (?) or take a picture. Even if it is a photograph, the subject of inquiry would be the contents of the photograph, that’s a documentary evidence. 2) Legal unavailability may refer to instances where the document is beyond the territorial or coercive jurisdiction of the court. Kung beyond siya, dili ma-subpoena sa court. The court cannot enforce without its territorial jurisdiction an obligation on a party to produce the original of a document. You cannot compel it, wala tay mahimo, so it is legally unavailable to a party. ONG CHING PO VS. CA (1994) HELD: Secondary evidence is admissible when the original document were actually lost or destroyed. But prior to the introduction of such secondary evidence, the proponent must establish the former existence of the document. The correct order of proof is as follows: 1. EXISTENCE; 2. EXECUTION; 3. LOSS; 4. CONTENTS.  This order may be changed if necessary in the discretion of the court (De Vera vs. Aguilar, 218 SCRA 602 [1993])  This is the process of LAYING THE BASIS.

Remember that. I don’t know why I keep on asking this in my examinations, ONG CHING PO VS. CA (1994), almost every year I do, and yet students still find it hard to remember these four words, (1) Existence (2) Execution (3) Loss (4) Contents. Q: How do you now lay the basis for the introduction of secondary or substitutionary evidence? (1) You prove the existence of the document, that it is not a product of fiction. It really exists. (2) That it was executed by the parties charged with that document. (3) That it is lost, destroyed or otherwise unavailable. (4) You now present what should be the contents of that original document by presenting secondary or substitutionary evidence. Later on we will distinguish between Laying the Basis, Laying the Foundation, Laying the Predicate. There are three “laying” things in

based on the lectures of ATTY. JESS ESPEJO

evidence. I keep on asking that in my examinations, I still don’t know why you don’t get it. When you are able to lay the basis that’s the time that you apply Section 5. Section 5. When original document is unavailable.- When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. That’s the secondary evidence that is allowed. So nawala imong original, but you are able to lay the basis to present secondary evidence. Q: What’s your secondary evidence? 1. 2.

A copy of the original. It could be a photocopy. A recital of its contents in some authentic document.

Q: What’s an example of an authentic document that would recite the contents of the supposed original? How do you plead actionable documents? It’s either you attach it or you copy the contents of the actionable document in your pleading. You plead it. So that’s an example. 3. By the testimony of witnesses. That’s the third type of secondary evidence. And so a witness will testify that as far as his memory goes, the contents of the document. So mao na ang tulo ka secondary evidence in loss, destruction and unavailability of the original document. CITIBANK VS. TEODORO (2003) HELD: Production of secondary evidence requires compliance with the following: 1) The offeror must prove the execution or existence of the original; 2) The offeror must show the cause of its unavailability; and 3) The offeror must show that the unavailability was without bad faith on his part. So wala siyay sala sa pagkawala sa original. Wala niya gitaguan ang original. That would show that there is no bad faith on his part. DELA CRUZ VS. CA (1998) HELD: It is a well-settled principle that before secondary evidence can be presented, all duplicated and/or counterpart must be accounted for, and no excuse for the non-production of the original document itself can be regarded as established until all its parts are unavailable. It’s very important as well. Remember this because somehow you forget about it.

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

Example: There’s a contract of sale prepared in quadruplicate. One with the notary public, one with the Clerk of Court, one each for the buyer and seller. You file a case to enforce the provisions of the contract of sale, let’s say you are the seller, wala pa ka nabayran. So your contract of sale is actually an actionable document. Problem is you lost your copy. So what are you going to do? Do you immediately present secondary evidence? No, you have to account for the other originals. Find out what happened to the copy kept by the Clerk of Court, kept by the lawyer and kept by the buyer. Account for them first before you’re able to present secondary evidence. That’s the only time because the court may dispense with the presentation of secondary evidence if it can subpoena the copies that are found elsewhere. No need to present secondary evidence. That’s the important lesson in the case of DELA CRUZ VS. CA (1998). Remember that please, again that’s one thing that you seem to forget at the end of the semester.

Q: What does this mean when Section 6 says “secondary evidence may be presented as in the case of its loss.”?

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

Remember once again that when we go to Rule 131, we will encounter this “adverse presumption of suppression of evidence” – that evidence if it is suppressed would be adverse if produced. So that does not apply under this exception.

 It simply means that you APPLY Section 5. Section 5 tells you what would be the secondary evidence. Secondary evidence may be introduced as follows: by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. So that’s the meaning of Section 6, you go back to Section 5. Q: What is the effect of the refusal or failure of the adverse party to produce the original is justified?  It does not give rise to the presumption of suppression of evidence, or create an unfavorable interference against him. It only authorizes the presentation of secondary evidence. (Regalado, Vol. II, p. 727, 2008 ed.)

Original is in the custody or control of the adverse party  The mere fact that the original document is in the custody or under the control of the adverse party does not ipso facto authorize the introduction of secondary evidence to prove its contents. Although if you’re the plaintiff and the document is in the possession of the defendant, you would find that the defendant would be reluctant to supply you with documents so that you can sue him.  The part who seeks to present secondary evidence must lay the foundation for its introduction, subject to the following REQUISITES: 1. That the original exists; 2. That said document is under the custody or control of the adverse party; 3. That the proponent of secondary evidence has given the adverse party reasonable notice to produce the original document; and Q: What’s an example of reasonable notice? You send him a letter requesting for a copy of the document. 4.

That the adverse party failed to produce the original document despite the reasonable notice.

Each exception naa na siyay separate na provision what to do in order to present secondary evidence. So for the second exception, apply Section 6. After compliance, apply Section 6. Section 6. When original document is in adverse party’s custody or control. XXX 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.

x x x (c) When the original consists of numerous accounts or other documents, which cannot be examine in court without great loss of time and the fact sought to be established from them is only the general result of the whole; x x x Original consists of numerous accounts  Secondary evidence may be presented if:  The original consists of numerous accounts or other documents.  A good example of this would be books of accounts, receipts and similar documents;  These documents 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.  This means that the purpose for the introduction of such evidence is not to examine all the documents or pages of documents but merely to give the judge a summary from which he may draw a logical inference as to the probability or improbability of the fact in issue. Money claims, where the money claims would be the product of how many years of transactions between one party against another. Example: Your client is a distributorship, in charge of distributing the product of Chippy all throughout the Mindanao region. So how many transactions or deliveries you have of Chippy? How much ana ang nabayran na? How much ana ang wala pa nabayran? Let’s say the distributorship agreement with Jack and Jill would be five years. Imagine the amount of documents then. So in that case I ask a Certified Public Accountant.  Read the case of ATLAS VS. COMMISSIONER OF INTERNAL REVENUE GR No. 141104 & 148763, June 8, 2007  Requirements to comply with when the original consists in numerous accounts

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LAW ON EVIDENCE You have to read this case, it’s very important. Q: What are the requirements to comply with when the original consists in numerous account? How do you make your life easier when your documents are voluminous but what is required only is the general result of the whole? Summary of ATLAS VS.CIR (2007) 1. The party who desires to introduce as evidence such voluminous documents must, after motion and approval by the Court, present: a) a SUMMARY containing, among others, a chronological listing of the numbers, dates and amounts covered by the invoices or receipts; and b) a CERTIFICATION of an independent Certified Public Accountant attesting to the correctness of the contents of the summary after making an examination, evaluation and audit of the voluminous receipts and invoices. The name of the accountant or partner of the firm in charge must be stated in the motion so that he/she can be commissioned by the Court to conduct the audit and, thereafter, testify in Court relative to such summary and certification pursuant to Rule 32 (Trial by Commissioner) of the Rules of Court.

2. The method of individual presentation of each and every receipt, invoice or account for making, identification and comparison with the originals thereof need not be done before the Court or Clerk of Court anymore. It is enough that the receipts, invoices, vouchers or other documents covering the said accounts or payments to be introduced in evidence must be pre-marked by the party concerned and submitted to the Court in order to be made accessible to the adverse party who desires to check and verify the correctness of the summary and certification. Likewise, the originals of the voluminous receipts, invoices or accounts must be ready for verification and comparison in case doubt on the authenticity thereof is raised. All you need to do is to ensure that the documents are available for inspection by the other party. How is that complied with? Give him a copy of your voluminous documents. Read also  CITIBANK, N.A. VS. SABENIANO (GR No. 156132, October 12, 2006)  COMPANIA MARITIMA VS. ALLIED FREE WORKERS UNION, ET.AL. GR No. L-28999, May 24, 1977 CITIBANK, N.A. VS. SABENIANO (2006) FACTS: Respondent filed a Complaint against petitioners for "Accounting, Sum of Money and Damages." She claimed to have substantial deposits and money market placements with the petitioners, the proceeds of which were supposedly deposited automatically and directly to respondent's accounts with petitioner Citibank. Respondent alleged that petitioners refused to return her

based on the lectures of ATTY. JESS ESPEJO

deposits and the proceeds of her money market placements despite her repeated demands. Petitioners alleged that the respondent obtained several loans from petitioner Citibank, for which she executed Promissory Notes (PNs). The proceeds of the loans were paid to respondent in Manager Checks (MCs), with the respondent specifically named as payee. When respondent failed to pay her loans despite repeated demands by petitioner Citibank, the latter exercised its right to offset or compensate respondent's outstanding loans with her deposits and money market placements. Respondent alleged that she received these checks, not as proceeds of loans, but as payment of the principal amounts and/or interests from her money market placements with petitioner Citibank. On the other hand, petitioners submitted the photocopies and microfilm copies of the PNs, MCs, and exchange of letters between petitioner Citibank and respondent, as well as the letters sent by other people working for respondent to establish the existence of respondent's loans. CA dismissed the documentary evidence submitted by petitioners based on the best evidence rule. HELD: The SC disagrees with the CA. Rule 130, Section 5 of the revised Rules of Court is applicable in this case. The terms or contents of these documents were never the point of contention in the Petition at bar.The execution or existence of the original copies of the documents was established through the testimonies of witnesses, such as Mr. Tan (bank manager), before whom most of the documents were personally executed by respondent. The original PNs also went through the whole loan booking system of petitioner Citibank. The original MCs were subsequently turned over to the Control and Investigation Division of petitioner Citibank. The original documents in this case, such as the MCs and letters, were destroyed and, thus, unavailable for presentation before the RTC, when a fire broke out on the 7th floor of the office building of petitioner Citibank. There is no showing that the fire was intentionally set. The fire destroyed relevant documents, not just of the present case, but also of other cases, since the 7 th floor housed the Control and Investigation Division, in charge of keeping the necessary documents for cases in which petitioner Citibank was involved.The foregoing would have been sufficient to allow the presentation of photocopies or microfilm copies of the PNs, MCs, and letters by the petitioners as secondary evidence to establish the existence of respondent's loans, as an exception to the best evidence rule. COMPANIA MARITIMA VS. ALLIED FREE WORKERS UNION, ET.AL. (1977) FACTS: Compañia Maritima and the Allied Free Workers Union entered into a written contract whereby the union agreed to perform arrastre and stevedoring work for the consignees’ vessels at Iligan City. The shippers and consignees paid the union for the arrastre work. They refused to pay for the stevedoring service. They claimed that the shipowner was the one obligated to pay for the stevedoring service because the bill of lading provided that the unloading of the cargo was at the shipowner's expense. A number of court cases then ensued.

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LAW ON EVIDENCE The consignees’ branch manager hired accountants to ascertain the losses suffered by the company. Their reports show that the total damages amounted to P349,245.37. The trial court awarded actual damages, amounting to P450,000 on the basis of the auditor's reports. The company argues that the accountants' reports are admissible in evidence because of the rule that "when the original consists of numerous accounts or other documents which cannot be examined in court without great loss-of time and the fact sought to be established from them is only the general result of the whole", hence, the original writings need not be produced. HELD: That rule cannot be applied in this case because the voluminous character of the records, on which the accountants' reports were based, was not duly established. It is also a requisite for the application of the rule that the records and accounts should be made accessible to the adverse party so that the company, of the summary may be tested on cross-examination. What applies to this case is the general rule "that an audit made by, or the testimony of, a private auditor, is inadmissible in evidence as proof of the original records, books of accounts, reports or the like". That general rule cannot be relaxed in this case because the company failed to make a preliminary showing as to the difficulty or impossibility attending the production of the records in court and their examination and analysis as evidence by the court. The accountants' reports reveal their lack of probative value. The best evidence on the cost of the damages to the company by reason of the depreciation of items of equipment would have been the sales invoices instead of the oral testimony of Teves. He did not produce the sales invoices.

based on the lectures of ATTY. JESS ESPEJO

photocopy and certify it as true and correct so that you will be issued an ODCT again. Rationale  The reason for this exception can actually be found in Rule 132, Section 26. It’s actually predicated on a rule Section 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)  Thus, where the original document is a public record, the secondary evidence allowed is a certified true copy issued by the public officer in custody thereof. Q: Is there any other exception, it’s a public document other than certified true copy issued by the public officer? Actually there’s one more according to Herrera, although there’s no case saying about it.  Another secondary evidence of a public record: Official publication (Herrera, Vol. V, p. 203, 1999 ed.) An official publication of that public record would do. So maybe if it appears in the Official Gazette, then why not. A Non-codal Exception to the BER

Rationale for the Exception  Judicial ECONOMY, EXPEDIENCE and DISPATCH. We do not waste the court’s time anymore, it’s easier for the parties, it’s faster for the parties. And you have this exception: x x x (d) When the original is a public record in the custody of a public officer or is recorded in a public office; x x x Original Document is a Public Record Section 7. Evidence admissible when original document is a public record. – When the original of document is in the custody of public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. You go to NSO, you need to get a copy of your birth certificate. Are you given your actual birth certificate when you were born? Of course not, only a certified copy thereof. You go to the ROD, you need a copy of the duplicate original copy kept by the ROD. Why? Kay nawala imong Owner’s Duplicate Certificate of Title (ODCT). You need to have it reconstituted but it’s still there, the ODCT. Pwede ba to na imohang kwaon kay mao nalang to imong original so that you can file an action for reconstitution of lost title? No, what they will do is to give you a

ESTRADA VS. DESIERTO (GR Nos. 146710-15, April 3, 2001) ESTRADA VS. DESIERTO (2001) FACTS: In the wake of EDSA II, President Estrada was constrained to leave Malacañang, VP Arroyo took her oath as the next President. Estrada contends that he is merely a president on leave. Part of the evidence considered by the Supreme Court in declaring that President Estrada has in fact resigned were newspaper accounts of diary of then Executive Secretary Edgardo Angara. According to reports of the Angara diary: Angara asked Senator Pimental to advise Estrada to consider the option of dignified exit or resignation. Estrada did not disagree but listened intently. At 9:30pm, Senator Pimental repeated to Estrada the urgency of making a graceful and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to go abroad with enough funds to support him and his family. Estrada expressed no objection to the suggestion for a graceful and dignified exit but said he would never leave the country. Due to this, the SC declared Estrada to have resigned as President. In the Motion for Reconsideration, Estrada points out that the admission into evidence of mere newspaper accounts of the Angara diary violated the Best Evidence Rule as the original itself was not presented.

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LAW ON EVIDENCE HELD: It is true that the Court relied not upon the original but only copy of the Angara Diary as published in the Philippine Daily Inquirer on February 4-6, 2001. In doing so, the Court, did not, however, violate the best evidence rule. Wigmore, in his book on evidence, states that: Production of the original may be dispensed with, in the trial court’s discretion, whenever in the case in hand the opponent does not bona fide dispute the contents of the document and no other useful purpose will be served by requiring production.

One thing that I need to tell you as early as now. A newspaper is hearsay. Do you know what hearsay evidence is? Hearsay is evidence that does not come from your personal knowledge, not based on your own perception. It was something that was merely told to you. Newspapers would be double or triple hearsay. Double hearsay na siya. Why? If I would be a writer, I get information from my source, I write it down and then it’s printed. That’s three layers of hearsay there, double hearsay. So it’s really second or third hand information that you read from the newspaper. So when you present the newspaper in evidence, what really happens is you’re merely recounting what you read from something that was merely told to the writer by someone else. That’s the reason why it’s chismis, it’s hearsay. So that’s what was used by the SC, newspaper accounts of the Angara diary. Double hearsay, triple hearsay even. That’s the justification of the SC. Is it lawful? No, we have our own BER with various well-defined exceptions. But the SC has to rule according to the dictates of the times. Unsa man,they will rule that we violated the BER and therefore mubalik si President Estrada, the SC cannot do that. And so this is what happened, even the SC admits to the fact that its ruling in Estrada vs. Desierto actually breaks a lot of procedural law barriers including hearsay, admissions, BER.

August 8, 2016 BEST EVIDENCE RULE FOR ELECTRONIC EVIDENCE 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. Section 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 copies or duplicates shall be regarded as the equivalent of the original.

based on the lectures of ATTY. JESS ESPEJO

(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. Atty. JZE: Now take note that somehow it borrows from the provisions of the law regarding best evidence rule and the original document with certain modifications that follows certain phraseology of the earlier E-commerce act. What we take out from the best evidence for electronic documents is the fact even if a document is electronic, if you remember, their nature is very easily reproduce. You can reproduce it by printing it but there would still be some rules to follow. So the best evidence rule also applies therefore to electronic documents. Just remember the codal provision, wala pa mn ni gipangutana sa bar exam, just make sure that your familiar with the provision and also rememer that there is a best evidence rule for eletronic evidence. NAPOCOR vs. CODILLA, G.R. No. 170491, April 4, 2007 Issue: whether or not the photocopies are indeed electronic documents as contemplated in RA 8792 or the IRR of the Electronic Commerce Act, as well as the Rules on Electronic Evidence. Held: NO. 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. When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. However, in the case at bar, though petitioner insisted in offering the photocopies as documentary evidence, it failed to establish that such offer was made in accordance with the exceptions.

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LAW ON EVIDENCE MCC INDUSTRIAL V. SSANGYONG G.R. 170633, OCT. 17, 2007 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.

MCC INDUSTRIAL V. SSANGYONG G.R. 170633, OCT. 17, 2007 ISSUE: Why a facsimile transmission cannot be considered as electronic evidence. The definitions under the Electronic Commerce Act of 2000, its IRR and the Rules on Electronic Evidence, at first glance, convey the impression that facsimile transmissions are electronic data messages or electronic documents because they are sent by electronic means. The expanded definition of an "electronic data message" under the IRR, "xxx [is] not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy." However, Congress deleted the phrase, "but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy," and replaced the term "data message" (as found in the UNCITRAL Model Law ) with "electronic data message." In an ordinary facsimile transmission, there exists an original paperbased information or data that is scanned, sent through a phone line, and re-printed at the receiving end. In a virtual or paperless environment, technically, there is no original copy to speak of, as all direct printouts of the virtual reality are the same, in all respects, and are considered as originals. Ineluctably, the law's definition of "electronic data message," which, as aforesaid, is interchangeable with "electronic document," could not have included facsimile transmissions, which have an original paper-based copy as sent and a paper-based facsimile copy as received. These two copies are distinct from each other, and have different legal effects.

based on the lectures of ATTY. JESS ESPEJO

Atty. JZE: There is a presumption under Rule 131 regarding the adverse presumption of suppression of evidence that if you do not present evidence that is within your power to present, it might be adverse to you cause of action or defense. That is not applicable in section 8. But by way of cross reference...

RULE 27, Section 1. Motion for production or inspection; order. — Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, XXX, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control, XXX. (1a) COMPARISON RULE 130, SECTION 8

RULE 27, SECTION 1

Procured by mere notice to the adverse party, which is a condition precedent for the subsequent introduction of secondary evidence by the proponent.

The production of document is in the nature of a mode of discovery and can be sought only by the proper motion in the trial court and is permitted only upon good cause shown.

Presupposes that the document to be produced is intended as evidence for the proponent who is presumed to have knowledge of its contents.

Contemplates a situation wherein the document is either assumed to be favorable to the party in possession thereof or that the party seeking its production is not sufficiently informed of the contents of the same.

Atty. JZE: so they have different purpose, rule 27 is a mode of discovery, in rule 130 that is not its purpose, is the introduction of secondary evidence. In rule 130 section 8, why is he presumed to have knowledge with its contents, because when will we call for the production of the original document it presupposes na naa kay secondary evidence or at least that you a party to that document. But in rule 27 section 1, precisely because it is a mode of discovery you are presumed not to know anything about it that it is whay you are asking for it. So if you studied will in your civil procedure, it would be easier for you to delineate.

RULE 130, SECTION 8. Party who calls for document not bound to offer it. - a party who calls for the document and inspects the same is not obliged to offer it as evidence.

Rule 3 - ELECTRONIC DOCUMENTS

Atty. JZE: this is still in relation to the exception of the best evidence rule. In Section 8, even if you called for the production of the document, nainspect nimo and it may not help your cause, section 8 says that you are not bound to offer it as evidence. It is not your evidence.

Section 1. Electronic documents as functional equivalent of paperbased 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.

EFFECT OF NOT OFFERING A DOCUMENT IN EVIDENCE AFTER CALLING FOR ITS PRODUCTION AND INSPECTION

Atty. JZE: So electronic evidence therefore are considered documentary evidence. If you translate, the rules on evidence also includes electronic evidence.

RULE ON ELECTRONIC EVIDENCE

 No unfavorable inference can be drawn for not offering a document in evidence if the party who calls for its production or inspection does not offer the same in evidence.

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LAW ON EVIDENCE RULE 130, PAROL EVIDENCE RULE Section 9. Evidence of written agreements. — When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. XXX Atty. JZE: itranslate nato to something more palatable, ok, kng nagsabot na ang mga aprtido sa usa ka kontrataand then kay tungod nagkasinabot na sila, gisulat nila, they already made a writen contract out of it they will be governed by the writen contract and nothing else. So whatever terms are written in that agreement, that will be the repository of their covenant that is included in their meeting of the minds. WORD PLAY

based on the lectures of ATTY. JESS ESPEJO

Effects of PER as a rule of exclusion.  If not in the contract, it is INADMISSIBLE. Atty. JZE: So the parol evidence rule is a limitation on your ability to present certain types of evidence, certain nature of evidence.  The stipulations may be valid but you cannot prove it in court. WHY?

1. HIERARCHY OF EVIDENCE. Documentary evidence prevails over testimonial evidence. (GSIS v. CA)

2. WHATEVER IS NOT WRITTEN IS WAIVED. The rule is based on the presumption that the parties “have made the writing the only repository and memorial of the truth and whatever is not found in the writing must be understood to have been waived and abandoned” (CARENAN V. CA, G.R. 84358, May 31, 1989)

“PAROL” comes from the French word parole which means “word”. Related: Parole d'honneur or “word of honor”. In the 1600, this was used to describe a promise made by a prisoner not to escape. Parole d'honneur became the source of the English word “PAROLE”, which is a word used to describe a process of allowing conditional release of prisoner. PAROL EVIDENCE, EXTRINSIC EVIDENCE, EVIDENCE ALIUNDE, and ORAL EVIDENCE are all the same. Atty. JZE: so what the immediate connection that you could make? Parol evidence rule: oral evidence. Somehow there is that evolution of words. Evidence Aliunde is found in Successions. Parol evidence rule IS A RULE OF EXCLUSION:  When parties have already reduced their agreement into writing, the written agreement becomes supreme. It supersedes everything they have discussed prior to the perfection of the contract.  A party therefore cannot* say something different from what the contract says. (*the PPT says “can” but Atty. JZE correctly rephrase it to “cannot” in his lecture)  He cannot modify or add to its terms.

Atty. JZE: The written agreement becomes supreme, not oral manifestations not proposed stipulations. It supersedes everything they have discussed prior to the perfection of the contract. So during the solicitation stage (a period of bargaining between the parties), one party makes an offer, the other party either accepts it, rejects it outright, or makes an counter offer until finally they come up with mutually agreeable terms and conditions Once they do that they reduced it into writing and everything else that preceded the drafting of the agreement in written form would therefore be deemed waived. Wala na dapat pakialam ang balaod, walay kanay dapat pakialam sa inyong gisabutan before because its the writing that would be supreme.

Atty. JZE: like the 10 commandments, written in stone, you cannot say that there is an 11th commandment, you cannot add to the terms of the written commandment, kung napulo, napulo lang na. Now, take note of the difference between a condition precedent and a condition subsequent. Condition precedent means it preceded the meeting of the minds of the parties. Condition subsequent are those that arise after the meeting of the minds of the parties. CONDITION PRECEDENT AND SUBSEQUENT  Under the parol evidence rule, there is a big difference between a condition precedent and a condition subsequent. A condition precedent may be established by parol evidence because there is no varying of the terms for the reason that there is yet no contract in existence.* A condition subsequent, as a general rule, may not be established by parol evidence since a written contract already exist.** * Atty. JZE: Now let me bring you back to sales, there's a big difference between a contract of sale and a contract to sell. In a contract to sell, there is no contract of sale to speak of because the condition precedent for the meeting of the minds between the parties lacking, wala pa nafulfill ang condition and therefore there is no obligation to transfer ownership. What usually is the condition precedent there is the full payment of the purchase price. ** ok, we agreed now and this is our contract, but there are conditions not included in the contract that took place after, normally under section 9, that cannot be prove as a general rule but subject to exceptions provided in letters a-b.

3. THE BELIEF THAT PAROL EVIDENCE IS MOST PRONE TO FABRICATIONS (HERBONV. PALAD, G.R.No. 149542, July 20, 2006) Thus, the purpose of the parol evidence is to give stability to the written agreements and to remove the temptation and possibility of perjury, which would be afforded if parol evidence were admissible. (CONDE v. CA, 119 SCRA 245)

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LAW ON EVIDENCE Atty. JZE: Because it is very easy ,if there were no rule like the parol evidence rule, what will happen is that anybody can say that instead of a party owing him 1 million that he owes him 10 million. Why? Because it allowed without the parol evidence rule, you can vary it, you can add to it. Di ba? Take note that: Article 1356. Contracts shall be obligatory, in whatever form they may have been entered into, provided all the essential requisites for their validity are present. However, when the law requires that a contract be in some form in order that it may be valid or enforceable, or that a contract be proved in a certain way, that requirement is absolute and indispensable. (..beast mode) In such cases, the right of the parties stated in the following article cannot be exercised. (Civil Code.) Atty. JZE: Remember that parol evidence is not a requirement of validity, it is a requirement of provability, what cannot and can be proved.  While the Parol Evidence Rule does not proclaim itself to be a limitation on the validity of a contract, it is a requirement that must be taken into consideration as a condition precedent to a party's ability to prove the same:  Even if the contract is valid in its oral form, contracts being generally and essentially consensual, it is virtually futile if you cannot therefore sue upon it or if you are barred by the conclusive presence of a written document relative to the same agreement. Requisites of Parol Evidence 1. There must be a written agreement; 2. The terms of the agreement must be reduce to writing 3. The dispute is between the parties or their successors-in-interest. 4. There is a dispute as to the terms of the agreement Requisite 1: AGREEMENT  In order for the rule to apply, there must be an “agreement”. As understood, an agreement is a contract. Thus, where there is a meeting of the minds between the parties and the same is reduced into writing, the resulting contract is therefore covered already by the Rule. Atty. JZE: Now take note what if you what to present an affidavit of person, can you add to the terms of that affidavit? Generally, you cannot, now you can add but the believability of that in the ears of the court will still vary. But take note lang jud na ang affidavit being not an agreement, it’s not supposed to be covered by the parol evidence.  This general understanding is not available to the last part of the Rule which provides that “(t)he term “agreement” includes wills” Atty. JZE: Why? Because under Rule 130, Section 9 although it includes will, we all know that a will is not an agreement. Now, can you subject the making of a will to the mutual agreement between

based on the lectures of ATTY. JESS ESPEJO

the parties? I make you my heir, you make me your heir? Can you do that? You can’t because it is not allowed by law. Because…  Verily, a will is not an agreement. It is strictly personal and unilateral act. However, by force of the Rules and in an apparent legal fiction, a will is an agreement as well although there is clearly no meeting of the minds. Why is the Rule applied to wills?  The dangers sought to be avoided by the requirement of the Rules is present in the making of wills and are deemed to be more prevalent inasmuch as the maker of a will, the decedent, can no longer object to attempts to vary his testamentary intent as his voice is already silenced by death. Atty. JZE: in contracts, when a parties adds to the terms of the written agreement, the other parties will still have the ability to refute the same, which can still be subjected to cross-examination. But in the making of will, during the probate of the will of a person deceased, you go to court and you say that actually the testator intended to give me 2 million pesos, if there is no parol evidence rule can you do that? If there no parol evidence rule its quite possible but because of the parol evidence rule, that danger of perjury or making fraudulent claims will also be diminished, plain and simple. Patay na gud ang testator unsaon pa nya pgrefute? As simple as that. RULE ON ELECTRONIC EVIDENCE Rule 3, Section 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. Atty. JZE: What is section 2 trying to tell you? That rules of admissibility that would normally apply to other types of documents or agreements that are paper-based are supposed to be applicable as well to electronic documents. Rule 2, Section 1 (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 printout or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term "electronic document" may be used interchangeably with "electronic data message". Atty. JZE: is it possible to come up with an agreement between the parties by electronic means? Suppose, I have your cellphone number and I texted you “I promise to give you 100, 000 if you paint my car, and then you reply “OK”, is there a meeting of the minds? Yes. Does

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LAW ON EVIDENCE

based on the lectures of ATTY. JESS ESPEJO

it make it that a less of a contract? Is there evidence of the contract? Yes. There is that text message. So there’s that contract, its source of the right of extinguishment of obligation. So it’s quite conceivable that there should be application of Rule 130, Section 9 to electronic evidence.

Nevada Revised Statute, Section113

Does the parol evidence apply to electronic documents?

Electronic will

 Can an agreement be in digital or electronic form? Atty. JZE: Yes. Email, can you be bound by your emails? Yes. Can obligations be extinguish by way of email? Yes. For example, you have a promissory note by which you promised to pay the debt and then you received an email from me saying you don’t have to pay the promissory note because it is already condoned. That email is your evidence of the agreement. And therefore, there is no problem for us in applying the parol evidence rule to electronic documents for agreements in general. But this is my question…  Can a will be man in digital or electronic form? Atty. JZE: Let’s try to analyze, what are the ways that a person may make a will in the Philippines? It can be holographically, where the will must entirely signed and dated by the testator and made in his own handwriting and second is notarial will, subject to the forms and solemnities required by law. So, in that situation is there a way that a holographic or notarial will can be produced electronically?

unless it is in writing and signed by the testator, or by an attending person at the testator's express direction, and attested by at least two competent witnesses who subscribe their names into the will in the presence of the testator.

1. An electronic will is a will of a testator that: (a) Is written, created and stored in the electronic record; (b) Contains the date and the electronic signature of the testator and which includes, without limitation, at least one authentication characteristic of the testator; and (c) Is created and stored in such a manner that: (1) Only one authoritative copy exists; (2) The authoritative copy is maintained and controlled by the testator or a custodian designated by the testator in the electronic will; (3) Any attempted alteration copy is readily identifiable; and

of

the

authoritative

(4) Each copy of the authoritative copy is readily identifiable as a copy that is not the authoritative copy. 2. Every person of sound mind over the age of 18 years may, by last electronic will, dispose of all of his or her estate, real and personal, but the estate is chargeable with the payment of the testator’s debts.

Hypothetically, if you can make your will in a tablet, or an E-will, does the parol evidence also applies to E-will? Under Philippine law, I don’t know. Can there be an electronic will? Any way the Supreme Court has not yet decided on this, but this much I know; e-Wills are valid in other jurisdictions and they even go to the extent as saying that the parol evidence rule applies to e-wills.

3. An electronic will that meets the requirements of this section is subject to no other form, and may be made in or out of this State. An electronic will is valid and has the same force and effect as if formally executed.

Now, technically speaking, what would be the effect of the parol evidence rule? The effect is simple, you are confined to the four corners of a document or agreement. If it is not within the four corners, it’s not supposed to be a valid provision, or it’s a valid provision but it’s something that you cannot prove. You cannot add to, explain or modify the terms.

(a) Transmitted to and maintained by a custodian designated in the electronic will at the custodian’s place of business in this State or at the custodian’s residence in this State; or

4. An electronic will shall be deemed to be executed in this State if the authoritative copy of the electronic will is:

(b) Maintained by the testator at the testator’s place of business in this State or at the testator’s residence in this State.

But in other jurisdiction, the wills can be electronically made.

Other countries with valid e-Wills

E-Wills

South Africa – its Supreme Court already declared the validity of an e-Will, caveat, subject to certain conditions to be gauged in a case to case basis.

 Nevada is the only state in the US that specifically provides guidelines for creating a valid electronic will. Ohio has trail court decision declaring E-wills to be valid. While electronic wills are convenient, they raise concerns about the authentication and forgery. In some states, electronic will are not allowed. Nevada Will Statute  No will executed in the State, except such electronic wills or holographic wills as are mentioned in this chapter, is valid

India – they are crazy. Requisite 2: REDUCED TO WRITING Is it required that the agreement should be in a public instrument for the applicability of the Parol Evidence Rule? No. that is in the case of…

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LAW ON EVIDENCE INCIONG v. CA G.R. No. 96405 June 26, 1996 Clearly, the rule does not specify that the written agreement be a public document. What is required is that the agreement be in writing as the rule is in fact founded on "long experience that written evidence is so much more certain and accurate than that which rests in fleeting memory only xxx. Thus, for the parol evidence rule to apply, a written contract need not be in any particular form, or be signed by both parties. Atty. JZE: Remember that when a law requires an agreement to be in a public instrument, the general rule is it that it is only for convenience. The only exception is that when you are dealing with unregistered lands. In unregistered lands, always, all transactions must in a public instrument and recorded in the Registry of Deeds. Is it possible that there is an agreement despite the fact that only one party signed the agreement? Unilateral contracts right?! Requisite 3: DISPUTE IS BETWEEN THE PARTIES OR THEIR SUCCESSORS-IN-INTEREST The rule does not apply, and may not properly be invoked by either party to the litigation against the other, where at least one of the parties to the suit is not party or a privy of a party to the written instrument in question and does not base a claim on the instrument or assert a right originating in the instrument or the relation established thereby. (VICTORIA LECHUGAS vs. COURT OF APPEALS, G.R. No. L-39972 & L-40300 August 6, 1986) Thus, if one of the parties to the case is a complete stranger to the contract involved therein, he is not bound by this rule and can introduce extrinsic evidence against the efficacy of the writing. Atty. JZE: That is one of the distinctions between the best evidence rule and the parol evidence. In the best rule even if you are not a party to the agreement, you can seek refuge but under the parol evidence rule, both parties must be parties to the instrument otherwise the rule will not apply. Requisite 4: THERE IS DISPUTE AS TO THE TERMS OF THE AGREEMENT Thus, if the dispute between parties who are contractually bound refers to matters extraneous to the agreement or with respect to rights and obligations that do not emanate from it, the Parol Evidence Rule does not apply. Atty. JZE: If you have a document but you are only trying to prove its existence, execution and physical condition of the paper AS AN OBJECT, the parol evidence rule does not apply, similar to the best evidence rule EXCEPTIONS:  Under section 9, a party may present evidence to modify, explain, or add to the terms of the written agreement.

based on the lectures of ATTY. JESS ESPEJO

(b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. In paragraph (a) there are actually 3 exceptions: Intrinsic ambiguity, mistake and imperfections. AMBIGUITY  can be extrinsic (patent) or intrinsic (latent) Atty JZE: When you say patent it means it’s very clear, when you look at it, it’s really ambiguous, it’s doubtful, not certain.  Extrinsic – cannot be proved by parol evidence because by nature, it is incurable. Examples: The will provides: “I will give B something”. There is really no description there. Atty. JZE: Under the view of the Rules of Evidence it is not curable, do not confused it with the view under the law of successions. BORILLO v. CA, G.R. No. 55691 May 21, 1992 In order to admit parol evidence to aid in the description of the subject matter of a deed or other writing, there must be a description that will serve as a foundation for such evidence; the writing must at least give some data from which the description may be found and made certain. Parol evidence is not admissible to identify the property where the description thereof is so vague as to amount to no description at all. In other words, parol evidence is not permitted to supply a description, but only to apply it. Atty. JZE: The rule presupposes that, in order in order for parol evidence to be curative of an ambiguity, there has to be something to start with in the first place. But if it is extrinsic ambiguity, it amounts to no description at all. The situation is different where there is a mere imperfect description. The principle of FALSA DEMONSTRIO NON NOCET – a false or mistaken description does not vitiate – would then apply. Atty. JZE: what is the example of my wife here? “I give to my beautiful daughter something… unya kung dili gwapa unsa nlng man? Imperfect ang description, a false description. Does it vitiate the legacy or gift? It does not. You just disregard the description “beautiful”, otherwise it will be absurd. Kinahanghan kapa magpresent og evidence na gwapa ang anak.

HOW? He must plead it. He must put in issue in his pleading any of the following: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement;

FALSA DEMONSTRIO NON NOCET If, on considering the language of a will with the aid of any admissible extrinsic evidence, the court comes to the conclusion that the testator intended to pass something and can determine

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LAW ON EVIDENCE what that something is, then the fact that the testator gave it a wrong description in his will does not prevent the will taking effect in regard to the subject matter intended by the testator. The principle may be applied in whatever part of the description the error occurred.

based on the lectures of ATTY. JESS ESPEJO

continued occupation and possession of the Lantap property. The bank also testified that although the Deed of Sale mentioned TCT No. T-62096, it meant the resell of the Lantap property (parol evidence). IS THERE AN INTRINSIC AMBIGUITY?

Example of Dean Iñigo: In his will, X makes a specific gift of shares of stock in ABZ Corporation, and X at the date of his will possessed no such stock but possessed other stock in ABC Corporation which the court decides was meant, the latter stock passes under the gift despite the false description. Atty JZE: There is no ABZ Corporation but there is ABC, that is a false description, but do you vitiate or render inutile the testamentary disposition? No. In that situation, you must present parol evidence to explain that what was meant was not ABZ but ABC. Intrinsic ambiguity, on the other hand, can be proved by parol evidence. Example: In a will, it is provided that the testator gives to Rrramon, his nephew, P200,000.

 Yes. The VLTs suffer from intrinsic ambiguity. The VLTs describe the subject property as covered by TCT No. T-62836 (Lantap property) being located in Barangay Murong.

Furthermore, respondents, are not parties to the VLTs executed between RBBI and petitioners; they are strangers to the written contract. Rule 130, Section 9 specifically provides that parol evidence rule is exclusive only as between the parties and their successors-in-interest. The parol evidence rule may not be invoked where at least one of the parties to the suit is not a party or a privy of a party to the written document in question, and does not base his claim on the instrument or assert a right originating in the instrument. INTERMEDIATE AMBIGUITY

However, the testator has two nephews named Rrramon.

This arises by the use equivocal word/s which is susceptible of more than one interpretation. Evidence aliunde may be admitted by the court to explain or add to its meaning.

Here, by way of exception, a latent ambiguity may be explained by parol evidence, for, as the ambiguity has been brought about by circumstances extraneous to the instrument, the explanation must necessarily be sought for from such circumstances outside the instrument.

Atty. JZE: this the third form of ambiguity. It is not recognized by the Rules of Court but it is recognized under American jurisdiction and old Supreme Court Decisions.

Atty JZE: The ambiguity came from the outside of the instrument, so it must also be explained by matters that are also outside the instrument. MARQUEZ V. ESPEJO, G.R No. 168387, August 25, 2010 The Espejos sold 2 parcels of land to the bank. One was covered by TCT No. T-62836 and was located in Lantap. The other one was covered by TCT No. T-62096 and ws located in Murong and it has tenants. Sometime later, in 1985, the Espejos brought back one of the properties. In the deed, the subject matter was described as “covered by Transfer Certificate of Title No. T-62096”. The Murong property was later transferred to the tenants by way of VLTs (Voluntary land transfer), which however, referred to TCT No. T62836. CLOAs were subsequently issued to the tenants. The Espejos filed an action for cancellation of the CLOA on the ground that the Murong property, occupied by the petitioners, was owned by the respondents by virtue of the 1985 buy-bay, as documented in the Deed of Sale. They based their claim on the fact that their Deed of Sale refers to TCT No. T-62096, which pertains to the Murong property. The tenants argued that what the Espejos repurchased from the bank in 1985 was actually their Lantap property, as evidence by their

Innocently, if you look at it, it is understandable enough. When you say “writ”, you mean writ. But remember, when you are talking about contractual terms, there can other meaning or shades of writ. Hence, evidence aliunde may be admitted by the court to explain or add to its meaning. There is only one interesting case here… Case: Intermediate Ambiguity A Chinese immigrant, Tan Quin Lay, as a manager of Song Fo Company, entered into a contract with Fred Wilson and Co. for the purchase of distilling apparatus for P10, 000. He purchased the apparatus with the specification that it should have a capacity of 6,000 liters a day. After using the distilling apparatus for some time, Song Fo complained that it only produced 480 liters of alcohol per day, not 6,000 liters and filed a case for breach of contract. Fred Wilson and Co. contended that it did not breach its contract which stated that the aparratus was of “de capacidad de 6,000 litros cada 24 horas de trabajo”. It said that, since the apparatus was able to process 6,000 liters of raw materials per day, there was no breach of contract. What does “capacity” mean? Song Fo – producing capacity

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LAW ON EVIDENCE Fred Wilson and Co. - receptive capacity Clearly, there is intermediate ambiguity here. The term “capacity” is susceptible of more than one interpretation. HELD: Parol evidence is admissible to show which of the two interpretations was meant by the parties. (Palanca v. Fred Wilson and Co. 37 Phil. 506) Atty. JZE: Intermediate ambiguity is actually curable by parol evidence. Intrinsic ambiguity curable by parol evidence. Extrinsic, no. MISTAKE First, the mistake should be of fact; second, that the mistake should prove by clear and convincing evidence; third; that the mistake should be common to both parties to the instrument. The rule is, as has been above stated, that mistake must be mutual. (BPI vs. FIDELITY G.R. No. L-26743, OCT. 19, 1927) Atty. JZE: if you recall your obligations and contracts, this actually are the requisites for the reformation of the instrument. Mistake to justify the reformation of a contract, but, it’s practically the same requisites for the parol evidence. MAGELLAN vs. CA (G.R. No. 95529, AUG. 22, 1991) The mistake contemplated as an exception to the parol evidence rule is one which the mistake of the fact mutual to both parties. Furthermore, the rules on evidence, as amended, require that in order that parol evidence may be admitted, said mistake must be put in issue by the pleadings, such that if not raised inceptively in the complaint or in the answer, as the case may be, a party cannot later on be permitted to introduce parol evidence thereon. IMPERFECTION This simply means that the writing is incomplete and does not express the whole agreement of the parties. Here, there is a failure of the parties to lay down all the terms and condition which are to constitute the agreement. Failure of the agreement to reflect the true intention of the parties. The exception obtains where the written contract is so ambiguous or obscure in terms that the contractual intention of the parties cannot be understood from the mere reading of the instrument. In such 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. (HEIRS OF DEL ROSARIO vs. SANTOS, G.R. No. L-46892, SEPT, 30 1981) Atty. JZE: So what are we talking about failure of the agreement to reflect the true intention of the parties? To my mind you are is still talking about ambiguity. So to my mind this a superfluous additional

based on the lectures of ATTY. JESS ESPEJO

ground. Because the failure should be equated to ambiguity, its more or less the same exception. CROSS-REFERENCE Article 1359. When, there having been a meeting of the minds of the parties to a contract, their true intention is not expressed in the instrument purporting to embody the agreement, by reason of mistake, fraud, inequitable conduct or accident, one of the parties may ask for the reformation of the instrument to the end that such true intention may be expressed. If mistake, fraud, inequitable conduct, or accident has prevented a meeting of the minds of the parties, the proper remedy is not reformation of the instrument but annulment of the contract. (Civil Code)

Atty. JZE: Example of contracts that is open for reformation: Equitable mortgage. THE VALIDITY OF THE WRITTEN AGREEMENT Here, a party seeks to present extrinsic evidence to prove that the contract is not valid. As in all other exceptions, he must raise the invalidity of the contract in the pleading. RECALL Article 1409. The following contracts are inexistent and void from the beginning: (1) Those whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy; (2) Those which are absolutely simulated or fictitious; (3) Those whose cause or object did not exist at the time of the transaction; (4) Those whose object is outside the commerce of men; (5) Those which contemplate an impossible service; (6) Those where the intention of the parties relative to the principal object of the contract cannot be ascertained; (7) Those expressly prohibited or declared void by law. These contracts cannot be ratified. Neither can the right to set up the defense of illegality be waived. Atty. JZE: Take note of (3), that is a contract void ab initio. Lets the example of . . . Hypothetical Problem (Dean Iñigo) A sells to B his land for 1million. They sign a deed of sale. So: “In consideration of 1 MILLION PESOS, receipt of which is hereby acknowledge in full, I hereby sell this property to B xxx”.

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LAW ON EVIDENCE But (in actuality) B says that he has to go to the bank to secure manager's cheques as P1 Million is to large an amount to be paid in cash. A agrees to wait for B, while B brings with him the deed of sale and the title of the land. But B never came back as he went straight to the Registry of Deeds to have the title of the property transferred to him. Atty. JZE: Now, here there is no payment, no consideration. So when the cause or the object of the contract were no present, under Art. 1409 it is void and inexistent. Now try to reckon that with rule 130, section 9, … In case for annulment of sale, how will A prove that B never paid him the agreed consideration when the deed of sale has been duly acknowledge and the sale duty registered?*  A will prove, though his testimony, that he never received the consideration.  BUT, based on the general rule. A cannot really prove that he did not receive the money because the documents will show otherwise. Any attempt on the part of A to do so will be objectionable under PER. **  However, since he filed the case to nullify the deed of sale – in effect, he is raising the issue on the validity of the said instrument.  So, in this case, parol evidence is allowed to prove lack of consideration.

based on the lectures of ATTY. JESS ESPEJO

SUBSEQUENT AGREEMENTS  This is the exception which states: The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. RATIONALE  Why is this an exception? When the parties executed the written agreement, they have yet to enter into the subsequent agreement. The parties cannot incorporate in the contract or instrument something that they will still agree on in the future. Atty JZE: It does not even matter if the subsequent agreement is written or oral, what matter is that it is subsequent. But isn't it easy to escape the obligations in a contract, all you have to say is that you executed in a subsequent agreement, whether its true or not? Remember that even if it is allowed, even if it is admissible, even if you can to modify or allowed to say something to modify, it does not mean that it will be believe by the court. It is only an assurance that your testimony will be heard, but there is no assurance that it will be believed. Hypothetical Case

*Atty. JZE: remember that under the parol evidence rule, one cannot vary the terms of the agreement. If the written agreement say that you were already paid, therefore you are paid. So what can he do? Of course he can then apply the exception. ** So what should he do? He should put in issue in his pleading, the validity of the written agreement, By filing a case. What else may be raised under “validity of the written agreement”? 1. FORGERY. See ALORIA vs. CLEMENTE, G.R. No. 165644, FEB. 28, 2006

 Maja borrowed money from JZE. For this, Maja signed a promissory note in favor of JZE which fixed the maturity date on August 15, 2015. When August 15, 2015 came, Maja did not pay. Thus, JZE sues Maja for payment of the due account. Maja's defense is that the amount is not yet due because after the execution pf the promissory note, for unwritten considerations, JZE agreed to extend the period of payment to until January 14, 2016. What is Maja's evidence? Her testimony that they agreed into a subsequent oral agreement which happened after the execution of the promissory note. (so basically, the case is still premature)

2. FRAUD AND ILLEGALITY. See BOUGH vs. CANTIVEROS, G.R. No. 13300, SEPT. 29, 1919

ADMISSIBLE?

3. FALSE REPRESENTATION. See WOODHOUSE vs. HALILI, G.R. No. L-4811, JULY 31, 1953.

YES. This is the exception “the existence of other terms agreed to by the parties or their successors in interest after the execution of the

WOODHOUSE vs. HALILI, G.R. No. JULY 31, 1953. The statement of the plaintiff was not sought to be introduce to change or alter the terms of the agreement, but to prove how he induce the defendant to enter into it – to prove the representations or inducements, or fraud, with which or by which he secured the other party's consent thereto. These are expressly excluded from the parol evidence rule. Fraud and false representation are an incident to the creation of a jural act, not to its integration. And are not governed by the rules on integration.

written agreement.” Ultimately, Maja can testify orally in court on the subsequent oral agreement that she had with JZE. The extension in fact resulted in the novation of their previously agreed-upon maturity date. Atty JZE: Will it be believable? It’s up to the court to decide. PRINCIPLE TO REMEMBER The parties cannot incorporate in the contract or agreement something that they will still agree on in the future.

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LAW ON EVIDENCE SUMMARY COVERED: (with respect to the time)  Only PRIOR AND CONTEMPORANOEUS AGREEMENTS which are deemed to have been merged in writing conformably to the “integration of the agreement rule” (WOODHOUSE vs. HALILI) NOT COVERED  SUBSEQUENT AGREEMENTS, despite the fact that such agreements may have the effect of adding to, changing, modifying, or even altogether abrogating the contract of the parties as evidenced by the writing. (RULE 130, Section 9 (d))

 COLLATERAL AGREEMENTS which, although oral and contemporaneous with the writing, are separate and distinct agreements. This are also known as CONTEMPORANEOUS ORAL AGREEMENTS or “SIDE AGREEMENTS” Atty JZE: Parol evidence rule is also called “a rule on integration” Collateral agreements are other or side agreements at the time of having a contract. They must be separate and distinct. Maybe it does not appear on writing but nonetheless, you made another agreement. Remember also what is pactum commissorium. An agreement where in case of none payment of the mortgage, the property automatically goes to the mortgagor. This against public policy. MCIAA vs. CA, G.R No. 121506, October 30, 1996 Sometime in 1949, the National Airport Corporation informed the owners of the various lots surrounding the Lahug Airport that the government will purchase their lands for the expansion of the airport. The landowners were convinced to sell their properties, otherwise, the government will be forced to institute expropriation proceedings in court. They were also assured that their properties will be returned to them when they are no longer used by the airport. Ouano did not want to sell at first, However, because she was reassured by the promise that the land will be returned when it is no longer in use, she was persuaded to enter into a contract of sale. Vercide, another landowner, testified that in a meeting called by the MCIAA, the landowners were given documents to sign, and he asked for a rider or certification which would indicate that the land ill be returned to him should it not be used by the airport. He testified that it was only after the rider was give to him that he signed the document of sale. Years later, Pres. Aquino had ordered the airport to be transferred to Mactan. The grandchildren of Ouano tried to repurchase the properties originally owned by their grandmother. On 2 October 1991, they wrote to Capt. Antonio Oppus, the manager of MCIAA,

based on the lectures of ATTY. JESS ESPEJO

signifying their intention to repurchase the properties originally owned by their grandmother. Capt. Oppus denied their request because the deed of sale covering the properties does not contain any condition relating to the right of repurchase. These properties, it was explained, had become the absolute properties of the NAC. The grandchildren filed a case for reconveyance with the RTC. MCIAA contended that in the absence of any rider providing for such right of repurchase, no evidence, whatsoever can be receieved to establish that such right indeed exists as it would violate the parol evidence rule. HELD: Under the parol evidence rule, when the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading, the failure of the written agreement to express the true intent of the parties thereto. The fact which private respondents seek to establish by parol evidence consist of the agreement or representation made by NAC that induced Ouano to execute the deed of sale; the vendors and their heirs are given the right to repurchase should the government no longer need the property. Where a parol contemporaneous agreement was the moving cause of the written contract, or where the parol agreement forms part of the consideration of the written contract, and it appears that the written contract was executed on the faith of the parol contract or representation, such evidence is admissable. It is recognized that proof is admissible of any collateral parol agreement that is not inconsistent with the terms of the written contract though it may relate to the same subject matter. The rule excluding parol evidence to vary or contradict a writing does not extend so far as to preclude the admission of existing evidence to show prior or contemporaneous collateral parol agreements between the parties, but such evidence may be received, regardless of whether or not the written agreement contains any reference to such collateral agreement, and whether the action is at law or in equity. Atty JZE: Now let’s try to analyze, does the contention that there is a contemporaneous parol agreement regarding repurchase, is it inconsistent with a deed of sale without any mention of such right of repurchase at all? No. It is not inconsistent because it is silent. It did not prohibit, although it did not state that there a right of repurchase. In this case:  Take note, that the courts should allow extrinsic evidence, if it is not INCONSISTENT with the written agreement.  In MCIAA, the contract neither contained nor prohibited a right or repurchase. Thus, there was no inconsistency.

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LAW ON EVIDENCE SEPARATE OR AT LEAST SEPARABLE  If the subject matter of the written agreement is different from that of the contemporaneous oral agreement, then the later is a separate and distinct agreement and, therefore, provable by parol evidence.  If the two agreements refer to the same subject matter, the test is to determine whether or not the contemporaneous oral agreement is separable. If the oral agreement is separable then it is considered separate and distinct and therefore provable by parol evidence. In MCIAA Case. . .

based on the lectures of ATTY. JESS ESPEJO

Other permitted collateral agreements  Inducements and representations which lead to the execution of an agreement may be proven by parol evidence because they do not vary the terms of the agreement. (WOODHOUSE vs. HALILI, BOUGH vs. CANTIVEROS)  Parol evidence is admissible to prove an independent and collateral agreement which constitutes an inducement to the making of the sale or part of the consideration thereof. (ROBLES vs. LIZARRAGA, 50 Phil. 387) A condition precedent not stipulated in writing is provable by oral evidence.

The oral agreement to repurchase the property refers to the same subject matter as the written agreement. Thus, we have to determine whether it is separable or not. Atty JZE: Now the question is, would there be separability between the deed of sale of the land and the right of repurchase? Remember in you sales that when you talk about a right of repurchase, it is resolutory condition. Once it is repurchased, the contract of sale is extinguished. It is usually included in the same agreement that conveyed the property. So we go to a sales case.. VILLARICA vs. CA 28 SCRA 189-193 (1968) The right of repurchase is not a right granted to vendor by the vendee in a subsequent instrument, but is a right reserve by the vendor in the same instrument of sale as one of the stipulations of the contract. Once the instrument of absolute sale is executed, the vendor can no longer reserve the right to repurchase, and any right thereafter granted to the vendor by the vendee in a separate instrument cannot be aright of repurchase but some other right like an option to buy. Atty JZE: Is it applicable to the case of MCIAA? Remember that in Villarica, it is a subsequent instrument. In MCIAA, the right of repurchase is made prior or contemporaneous with the written agreement. So what's applicable . . . LAUREANO vs. KILAYCO 34 Phil 148 An agreement of reconveyance is a distinct agreement, separate from the sale itself, although the two agreements are usually contained in one and the same document. In Laureano, the agreement to reconvey was actually similar to the one in MCIAA, as it was also and inducement to the signing of the deed. Atty JZE: So, whether a right of repurchase is separable depends on when it was actually granted. Subsequent to the written agreement, it is not even a right but a mere option to buy. If it was made prior or contemporaneous with the written agreement, even if it be made orally, then it is considered separable base on a case of Luareano.

 REASON: Before the happening of the condition, there is no written agreement yet to which the parol evidence may apply.  EXAMPLE: Conditional sale where transfer of ownership is subordinated to the condition of full payment of the purchase price. Verbal assurances given by the indorser of an out-of-town check to the employees of the bank where is it was presented for encashment that he would refund the amount if the check should be dishonored by the drawee bank is a collateral agreement separate and distinct for the indorsement, by virtue of which the first bank was induced to cash the same, and therefore, provable by parol evidence. (PNB vs. SEETO, 91 Phil. 756) Atty JZE: A verbal assurance is more or less same with inducement.  Any prior or contemporaneous conversation in connection with a note or its indorsement may be proved by parol evidence. (PNB vs. SEETO, 91 Phil. 756)

 An extrinsic agreement between indorser and indorsee which cannot be embodied in the instrument without impairing its credit may be proved by parol evidence. (PNB vs. SEETO, 91 Phil. 756)

 The fact that parties who appear to have signed as principals did so as merely sureties is provable by parol evidence. (TAN MACHAN vs. DELA TRINIDAD, 3 Phil. 684) NOT COVERED by PER  ALL OTHER AGREEMENTS, whether prior and contemporaneous, subsequent or collateral, if the issue revolves around fraud and false representation since they are incidental to the execution and not to the integration. ( WOODHOUSE vs. HALILI, G.R. No. L-4811, JULY 31, 1953)  ALL OTHER AGREEMENTS, whether prior and contemporaneous, subsequent or collateral,, when third parties, who are not privy thereto, are involved. (LECHUGAS vs. COURT OF APPEALSG.R. No. L-39972, August 6, 1986)

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LAW ON EVIDENCE RANDOM NOTES ON THE PAROL EVIDENCE RULE ILEU-FFW vs. INTERPHIL LABS (G.R. No. 142824, December 19, 2001) The parol evidence rule cannot be invoked in tribunals not strictly bound by the rules of evidence. In labor cases pending before the Commission or the Labor Arbiter, the rules of evidence prevailing in courts of law or equity are not controlling. Rules of procedure and evidence are not applied in a very rigid and technical sense in labor cases. Hence, the Labor Arbiter is not precluded from accepting and evaluating evidence other than, and even contrary to, what is stated in the CBA. HOW TO CONTRADICT WRITTEN AGREEMENT Quantum of proof required: Oral testimony cannot, as a rule, prevail a written agreement of the parties. In order to contradict the facts contained in a notarial document XXX as well as the presumption of regularity in the execution thereof, there must be clear and convincing evidence that is more than merely preponderant. (MANZANO V. PEREZ, G.R. No. 112485, August9, 2001) CITIBANK vs. SABENIANO, G.R. 156132, October 12, 2006 When a document is presented to prove its existence or condition, it is offered not as documentary, but as real evidence. Parol evidence of the fact of execution of the document is allowed.

PAROL EVIDENCE RULE

BEST EVIDENCE RULE

Presupposes that the original The original document is not document is available in court. available or is a dispute as to whether said writing is original. Prohibits the varying of the Prohibits the introduction of terms of the written agreement. secondary evidence regardless of whether or not it varies the contents of original . Applies only to documents Applies to all kinds of writings.* which are contractual in nature except wills. Can be invoked only when the controversy is between the parties to the written agreement and their privies.

Can be invoked by any party to an action whether he has participated or not in the writing.

It applies to any type of contract, and its purpose is to make sure that the parties' final understanding, deliberately expressed in writing shall not be changed.

Its object is to prevent perjured testimony in proof of certain contracts and the statute applies only to those enumerated types.**

Applies to wills.

Does not apply to wills.

Rule of integration which Rule of unenforceability which applies where there is a written applies in the absence o writing. agreement.

based on the lectures of ATTY. JESS ESPEJO

Bars evidence of terms that Bars proof of an agreement exist outside the agreement. altogether. *Atty JZE: do you apply the best evidence rule to wills? Yes, because it is still a document. You need to present the original will for probate. Other concepts to be distinguished, parol evidence rule and statute of frauds. Not discussed, sir did presume to know more that our oblicon professors, read and review on our own. ** Remember, exclusio unios ex exclusio alterios (?) - only those that are enumerated would be included under the per view of the statute of frauds. My favorite way of testing my students; DISTINCTIONS! IF YOU CAN DISTINGUISH ON TERM FROM ANOTHER IT MEANS THAT YOU HAVE UNDERSTOOD. KAYA TUYOK-TUYOKON. 2015 TSN HOW TO RAISE SOF AS A DEFENSE How do you use the SOF to prevent the introduction of parol or oral evidence during trial of the contract? There are many ways to skin the cat so to speak:  Use it as a ground as a motion to dismiss within the time required for you to file your answer. Remember under Rule 16 Section 1, SOF is a ground for motion to dismiss. Question: So your motion to dismiss based on SOT was granted, can the plaintiff refile the complaint this time attaching the written contract? So SOF, with prejudice. Such order ordering the dismissal of the case based on SOT shall bar the refiling of the same action or claim. That is Rule 16, Section 5.  File an Answer and use SOF as an affirmative defense. An advantage to that (instead of filing motion to dismiss) is because a motion to dismiss is NOT a pleading, it does not affect the other parties’ right to amend his pleading as a matter of right. So you would rather file an Answer and use SOF as a ground as an affirmative defense then ask a preliminary hearing as if a motion for dismissal was made.  In a demurrer of evidence. Remember that if it is unenforceable supposedly you cannot present any evidence to prove it. But let’s assume that the judge still admitted the oral contract, erroneously. So the other party has finished presenting his evidence-in-chief. What can you do being the defendant? File a demurrer of evidence stating that there’s violation of SOF under Rule 33. Why, because there can never be a prima facie case unless there is admissible evidence to support the claim.  How else? By objecting to the reception of such oral evidence when it is presented in court. Remember that failure to object in any of these occasions is tantamount to a waiver of the right to object based on the ground of SOF. That is why you really need to memorize the SOF. For your sake, as future barristers and as future lawyers. Be familiar with it.

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LAW ON EVIDENCE STATUTE OF FRAUDS versus PAROL EVIDENCE Similarities: They are similar in the sense that both rules limit the ability of a party to present oral evidence in certain contractual situations. Same type of evidence, which is parol or oral evidence is prohibited in both. Law

New Civil Code. Article 1403 (2)

Rules of Court. Rule 130, Section 9

Object

Certain agreement must be proved by some writing, note or memorandum in order to be enforceable Clearly, does not apply to wills

Nothing to do with the manner of proving agreements. Its object is to prohibit alteration, change, modification, variation or contradiction of the terms of a written agreement By fiction of law, treats wills as agreement and thus it made applicable to wills

Cannot be invoked by a stranger to the contract

Cannot be invoked by either party to the litigation against the other where at least one of the parties to the suit is not a party or a privy of a party to the written instrument.

RE: Wills When invoked

Simply stated: This does not apply where third parties are affected (?)

MARKET DEVELOPERS vs. IAC and UY, G.R. No. 74978 (1989)

based on the lectures of ATTY. JESS ESPEJO

actually had only two (2), with a further pair nearby, belonging to the municipality of Tabaco. HELD: the appellant is barred by waiver (or rather estoppel) to claim violation of the so-called fire hydrants warranty. The insurance company was aware, even before the policies were issued, that in the premises insured there were only two fire hydrants and two others nearby, owned by the municipality of Tabaco, contrary to the requirements of the warranty in question. The appellant company, in this particular case, so worded the policies that while exacting the greater number of fire hydrants and appliances, it kept the premium discount at the minimum of 2 1/2 per cent, thereby giving the insurance company a double benefit. No reason is shown why appellant's premises, that had been insured with appellant for several years past, suddenly should be regarded in 1939 as so hazardous as to be accorded a treatment beyond the limits of appellant's own scale of allowances. Such abnormal treatment of the insured strongly points at an abuse of the insurance company's selection of the words and terms of the contract, over which it had absolute control. These considerations lead us to regard the parol evidence rule, invoked by the appellant as not applicable to the present case. It is not a question here whether or not the parties may vary a written contract by oral evidence; but whether testimony is receivable so that a party may be, by reason of inequitable conduct shown, estopped from enforcing forfeitures in its favor, in order to forestall fraud or imposition on the insured.

We see no reason why the second agreement of the parties to deliver the petitioner's cargo to Roxas City instead of Kalibo, Aklan, should not be recognized simply because it was not in writing. Law and jurisprudence support the validity of such a contract. The parol evidence rule is clearly inapplicable because that involves the verbal modification usually not allowed a written agreement admittedly still valid and subsisting. In the case at bar, the first written agreement had not merely been modified but actually replaced by the second verbal agreement, which is perfectly valid even if not in writing like the first. As has been correctly held: No principle of law makes it necessary that a new contract upon the same subject between the same persons shall be reduced to writing because the old contract was written. QUA CHEE GAN vs. LAW UNION AND ROCK INSURANCE , G.R. No. L4611, December 17, 1955 Qua Chee Gan seeks to recover the proceeds of certain fire insurance policies, issued by the Law Union, upon certain bodegas and merchandise of the insured that were burned on June 21, 1940. The insurance company alleges that xxx the policies were avoided for breach of warranty, xxx since the bodegas insured had an external wall perimeter of 500 meters or 1,640 feet, the appellee should have eleven (11) fire hydrants in the compound, and that he

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