28-final.docx

REPORT ON RULE 28 under the 1997 Rules on Civil Procedure Abstract This report is an analytical summary of the Rule on Physical and Mental Examination of Persons under Rule 28, 1997 Rules of Civil Procedure in relation to the 2007 Rule on DNA Evidence. This is in partial compliance with the academic requirements for the subject Civil Procedure under Dean Rico Paolo R. Quicho on 23 March 2018, 2nd Semester, Academic Year 2017-2018 in San Beda College Alabang School of Law.

Authors Deiparine, Ralph Gonzales, Jerome Napoleon Hilario, Adrian Louie Reyes, John Harold Salamillas, Alberto Ronaldo Saligao, Charles Michael

Rule 28 The 1997 Rules of Civil Procedure provide for Rules on various modes of discovery. These modes include Depositions, Interrogatories, Request for Admission, Production/Inspection of Documents/Things, and Physical and Mental Examination of Persons. The last mode provided by the Court pertains to instances where the physical or mental status of the person is a factual issue. Thus, the 1997 Rules of Civil Procedure contains a provision on the Physical and Mental Examination of Persons under Rule 28. Since 1940, this procedural rule1 has been almost always present and consistent in wording with only one minor change.2 Rule 28 applies to an action in which the mental or physical condition of a party is in controversy.3 This entails the court in which the action is pending to order a party or both parties to undergo a physical or mental examination, conducted by neutral medical doctor or a psychiatrist. The reason behind such is that with a neutral doctor or psychiatrist, the medical or psychiatric report would not be tainted with bias and partiality. For example, in claims stemming from an injury caused by a quasi-delict, the claimantplaintiff, in proving the extent of his injuries, may exaggerate the same in order to claim more than what is just and fair, which will result in unjust enrichment and prejudice. This is what the law prevents. Thus, it is provided under Rule 28 that a neutral physician or psychiatrist be engaged in order to have an unbiased medical/psychiatric report. Other examples would be an action for annulment of a contract where the ground relied upon is insanity or dementia; a petition for guardianship of a person alleged to be insane; or an action to recover damages for personal injury where the issue is the extent of the injuries of the plaintiff.4

Procedure Initially, a motion must be filed showing good cause for the examination, with notice to the other parties as well aside from the party to be examined.5 The motion shall likewise specify the time, place, manner, conditions and scope of the examination and by the person or persons by whom it is made.6 The details and the notice could have been placed to prevent surprises on the part of the party to be examined, since the overall purpose of Modes of Discovery is to prevent surprises in court proceedings. The party examined may request the party causing the examination to be made to deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition.7 One possible reason for this measure is to avoid ambiguities which may cause further confusion in the determination of facts.

1

This was previously numerated as Rule 22 under the 1940 Rules of Court. See Appendix A. 3 Section 1, Rule 28, 1997 Rules of Civil Procedure. 4 Willard Riano. Civil Procedure: The Bar Lecture Series Vol. 1 (2011). 5 See Appendix C 6 Section 2, Rule 28, 1997 Rules of Civil Procedure. 7 Riano. (2011). 2

If the party examined refuses to deliver the report, the court may make an order requiring the delivery on such terms as are just. If it is the physician who fails or refuses to make a report, the court may exclude his testimony.8 Waiving the privilege of communications confidentiality between a physician and a patient in relation to this Rule is made by requesting and obtaining a report of the examination 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.9 However, Justice Leonen opines that “Discovery procedures provide a balance between the need of the plaintiff or claimant to fully and fairly establish her case and the policy to protect – to a certain extent – communications made between a patient and his doctor.”10

Rules on DNA Evidence The procedural rules on Examination has been expanded to include Deoxyribose Nucleic Acid as evidence under the Rules on DNA Evidence11. As early as 1995, it has been proven that DNA sequencing is a valid and reliable means of forensic identification.12 Justice Nachura wrote; “The Rule on DNA Evidence was enacted to guide the Bench and the Bar for the introduction and use of DNA evidence in the judicial system. It provides the ‘prescribed parameters on the requisite elements for reliability and validity … the possible sources of error, the available objections to the admission of DNA test results as evidence as well as the probative value of DNA evidence.’ It seeks ‘to ensure that the evidence gathered, using various methods of DNA analysis, is utilized effectively and properly, [and] shall not be misused and/or abused and, more importantly, shall continue to ensure that DNA analysis serves justice and protects, rather than prejudice the public’.” 13 Upon reading the rules, DNA Testing procedure before the courts follow the same procedure prescribed for Physical or Mental Examination under Rule 28.14 However, a few salient points are needed to be elaborated on. First, the matters to be considered prior to admission of DNA evidence. Under the rules, three factors are to be considered. These are the probative value of DNA evidence, 15 Reliability 8

Section 3, Rule 28, 1997 Rules of Civil Procedure. Section 4, Rule 28, 1997 Rules of Civil Procedure. 10 Marvic Leonen. “Concurring Opinion”, Josielene Chan vs. Johnny Chan. G.R. 179786 (July 24, 2013). 11 AM 06-11-5-SC. 12 Mark R. Wilson, et al. “Validation of Mitochondrial DNA Sequencing for Forensic Casework Analysis,” International Journal of Legal Medicine 108, no. 2 (1995): 68-74. 13 Antonio Nachura. Jesse Lucas vs. Jesus Lucas. G.R. 190710 (June 6, 2001). 14 See Appendix C. 15 Under Section 7, Rules on DNA Evidence 9

of DNA testing methodology,16 and results of DNA test and its evaluation.17 Second, confidentiality is guaranteed to limit the information pertaining to the DNA testing to specific persons, unless the court itself waives this confidentiality.18 Unauthorized disclosure constitutes indirect contempt of court.19 Third, all DNA evidence will be preserved until the case has become final and executory, unless a court order has been issued or the person from whom sample was obtained consents in writing to the disposal.20 Other salient points include the following; the Rules of Court applies in suppletory to the Rules on DNA Evidence,21 Rules on DNA Evidence will not preclude DNA testing before a suit or proceeding is commenced at the behest of any party, including law enforcement agencies, and without need of a prior court order,22 DNA testing orders are non-appealable and immediately executory unless a higher court issues an injunction,23 and Granting DNA testing orders will not necessarily mean that results will be automatically admitted as evidence.24

Jurisprudence In the research for Philippine jurisprudence which have applied these rules, two notable civil cases have clarified the rules on DNA evidence. and Lucas vs. Lucas. Philippine Rules on DNA Evidence did not contemplate any instance where a party subject to DNA testing has died prior to the issuance of a court order to conduct such testing, and the feasibility thereof was the contention of the parties representing the estate of Rogelio Ong.25 The Court held that death would not bar the application of the Rules on DNA Testing ipso facto. It is worth noting that biological samples containing the DNA of a person would nonetheless be available after death. To discount this method, there must be clear showing that biological samples of the decedent would be impossible to acquire. The Court further clarified in the Lucas case that a motion for an issuance to order DNA Testing is not automatically available to parties seeking to avail of such mode of discovery. 26 Sufficient evidence to establish a prima facie case must be adduced in a hearing to show cause for the issuance of the order to conduct a DNA Test.

16

Under Section 8, id. Under Section 9, id. 18 See Section 11, id. 19 Ibid. 20 See Section 12, id. 21 See Section 2, id. 22 See last paragraph under Sec. 4, id. 23 See Sec. 5, id. 24 Ibid. 25 Minita Chico-Nazario. Estate of Rogelio Ong vs. Joanne Diaz. G.R. 171713 (December 17, 2007). Also, See Appendix D (1). 26 Nachura. Lucas vs. Lucas. (2001). 17

Appendices Appendix A: Tabulated Text Comparison of the Rules on Physical and Mental Examination of Persons under the 1997 Rules of Civil Procedure, 1964 Rules of Court, and 1940 Rules of Court. 1997 Rules of Civil Procedure Rule 28 Section 1. When examination may be ordered.

1964 Rules of Court Rule 28

In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may in its discretion order him to submit to physical or mental examination by a physician.

In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may in its discretion order him to submit to a physical or mental examination by a physician.

1940 Rules of Court Rule 22

Section 1. When examination Section 1. When Examination may be ordered. May Be Ordered. In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may in its discretion order him to submit to physical or mental examination by a physician.

Sec. 2. Order for examination. Sec. 2. Order for examination. Sec. 2. Order for Examination. The order for examination may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties, and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.

The order for examination may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties, and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.

The order for examination may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties, and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.

Sec. 3. Report of findings.

Sec. 3. Report of findings.

Sec. 3. Report of Findings.

If requested by the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously

If requested by the party examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery, the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously

If requested by the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously

or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report the court on motion and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial.

or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial.

or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report the court on motion and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial.

Sec. 4. Waiver of privilege.

Sec. 4. Waiver of privilege.

Sec. 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.

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.

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 condition.

[Source: cdasiaonline.com]

Appendix B: Sample Form of Motion for Physical and Mental Examination REPUBLIC OF THE PHILIPPINES NATIONAL CAPITAL JUDICIAL REGION REGIONAL TRIAL COURT PASIG CITY BRANCH __________ MR. X, Plaintiff, -

Versus

-

CIVIL CASE NO. For: Annulment of Contract with Damages

MR Y, Defendant. ×

×

MOTION FOR PHYSICAL AND MENTAL EXAMINATION PLAINTIFF, by counsel and to this Honorable Court, respectfully alleges: 1) One of the issues raised by the defendant in this case is that he did not voluntarily agree to, and execute, the deed of sale of a parcel of land, subject matter of the pending case, because he allegedly was insane at the time of the execution of said deed of sale. 2) To determine defendant’s claim of insanity, it is necessary that a physical and mental examination of defendant be conducted by a government physician at the Philippine General Hospital, specifying the time, place , manner, conditions and scope of examination of said person and directing the examining physician to render a written report thereon. Manila, March 28 2018. GONZALES REYES HILARIO DEIPARINE SALIGAO AND SALAMILLAS LAW OFFICE Counsel for the plaintiff 4-D 4th floor Osmeña Bldg., 8 Don Manolo Blvd., Alabang Hills Subd., Muntinlupa City. By: RON B. SALAMILLAS IBP Lifetime No. xxxxxx/ mm-dd-yy PTR NO. xxxxxxx/ mm-dd-yy Roll no: xxxxx MCLE Exemption No. V xxxxxx/mm-dd-yy Tel. No. (xxx)xxx-xx-xx

Notice of Hearing TO: ATTY, PETER B. SANTOS Defendant G R E E T I N G S: Please submit the foregoing motion for the consideration and approval of the Honorable Court on March 2018 at 9:00p.m.

RON B. SALAMILLAS CC: 1) Santos and Associates Counsel for the Defendant Suite 305 Puzon Bldg,. E. Rodriguez Avenue. Q.C

EXPLANATION OF SERVICE Copy of the Motion for Production and Inspection of Documents was served to the defendant by registered mail due to time and distance constraints, and for lack of the undersigned’s staff who can serve the name in person. RON B. SALAMILLAS

Appendix C: Full Text of “Rule on DNA Evidence” AM 06-11-5-SC 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 actions as well as special proceedings. SECTION 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. SECTION 3. Definition of Terms. — For purposes of this Rule, the following terms shall be defined as follows: (a) "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; (b) "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; (c) "DNA evidence" constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples; (d) "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; (e) "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 (f) "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. SECTION 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: (a) A biological sample exists that is relevant to the case; (b) The biological sample: (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; (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 or 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. SECTION 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; (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 (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 conducted. 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 a 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. SECTION 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) a biological sample exists, (b) such sample is relevant to the case, and (c) the testing would probably result in the reversal or modification of the judgment of conviction. SECTION 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 samples were collected, how they were handled, and the possibility of contamination of the samples; (b) 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; (c) The forensic DNA laboratory, including accreditation by any reputable standards-setting institution and the qualication 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 (d) The reliability of the testing result, as hereinafter provided. The provisions of the Rules of Court concerning the appreciation of evidence shall apply suppletorily. SECTION 8. Reliability of DNA Testing Methodology — In evaluating whether the DNA testing methodology is reliable, the court shall consider the following: (a) The falsiability of the principles or methods used, that is, whether the theory or technique can be and has been tested;

(b) The subjection to peer review and publication of the principles or methods; (c) The general acceptance of the principles or methods by the relevant scientific community; (d) The existence and maintenance of standards and controls to ensure the correctness of data generated; (e) The existence of an appropriate reference population database; and (f) 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. SECTION 9. Evaluation of 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; (b) The results of the DNA testing in the light of the totality of the other evidence presented in the case; and that (c) DNA results that exclude the putative parent from paternity shall be conclusive proof of 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. SECTION 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 court of origin if the results of the post-conviction DNA testing are favorable to the convict. In 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. SECTION 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) Person from whom the sample was taken; (b) Lawyers representing parties in the case or action where the DNA evidence is offered and presented or sought to be offered and presented; (c) Lawyers of private complainants in a criminal action; (d) Duly authorized law enforcement agencies; and (e) 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. SECTION 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: (a) In criminal cases; (i) 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; (b) 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. SECTION 13. Applicability to Pending Cases. — Except as provided in Sections 6 and 10 hereof, this Rule shall apply to cases pending at the time of its effectivity. SECTION 14. Effectivity. — This Rule shall take effect on October 15, 2007, following publication in a newspaper of general circulation. [Source: cdasiaonline.com]

Appendix D: Case Digests Prepared by the Group Appendix D (1): “Estate of Rogelio Ong vs. Joanne Rodin Diaz” Digest by Charles Saligao DOCTRINE: Filiation proceedings are usually filed not just to adjudicate paternity but also to secure a legal right associated with paternity, such as citizenship, support, or inheritance. 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 defenses, presumption of legitimacy, and physical resemblance between the putative father and child. FACTS: RESPONDENTS’ COMPLAINT AND PRAYER: A Complaint for compulsory recognition with prayer for support pending litigation was filed by minor Joanne Rodjin Diaz, represented by her mother and guardian, Jinky C. Diaz, against Rogelio G. Ong before the Regional Trial Court of Tarlac City. In her Complaint, Jinky prayed that judgment be rendered: (a) Ordering defendant to recognize plaintiff Joanne Rodjin Diaz as his daughter. (b) Ordering defendant to give plaintiff monthly support of P20,000.00 pendente lite and thereafter to fix monthly support. (c) Ordering the defendant to pay plaintiff attorney's fees in the sum of P100,000.00. (d) Granting plaintiff such other measure of relief as maybe just and equitable in the premises. ALLEGATION: As alleged by Jinky in her Complaint in November 1993 in Tarlac City, she and Rogelio got acquainted. This developed into friendship and later blossomed into love. At this time, Jinky was already married to a Japanese national, Hasegawa Katsuo, in a civil wedding solemnized on 19 February 1993 by Municipal Trial Court Judge Panfilo V. Valdez. From January 1994 to September 1998, Jinky and Rogelio cohabited and lived together at Fairlane Subdivision, and later at Capitol Garden, Tarlac City. From this live-in relationship, minor Joanne Rodjin Diaz was conceived and on 25 February 1998 was born at the Central Luzon Doctors' Hospital, Tarlac City. Rogelio brought Jinky to the hospital and took minor Joanne and Jinky home after delivery. Rogelio paid all the hospital bills and the baptismal expenses and provided for all of minor Joanne's needs — recognizing the child as his. In September 1998, Rogelio abandoned minor Joanne and Jinky, and stopped supporting minor Joanne, falsely alleging that he is not the father of the child. Rogelio, despite Jinky's remonstrance, failed and refused and continued failing and refusing to give support for the child and to acknowledge her as his daughter, thus leading to the filing of the heretofore adverted complaint. RTC’S RULING: After summons had been duly served upon Rogelio, the latter failed to file any responsive pleading despite repeated motions for extension, prompting the trial court to declare him in default in its Order dated 7 April 1999.

PETITIONER’S ANSWER: Rogelio's Answer with Counterclaim and Special and Affirmative Defenses was received by the trial court only on 15 April 1999. RTC’S DECISION: Jinky was allowed to present her evidence ex parte on the basis of which the trial court on 23 April 1999 rendered a decision granting the reliefs prayed for in the complaint. In its Decision dated 23 April 1999, the RTC held: WHEREFORE, judgment is hereby rendered: 1. Ordering defendant to recognize plaintiff as his natural child; 2. Ordering defendant to provide plaintiff with a monthly support of P10,000.00 and further 3. Ordering defendant to pay reasonable attorney's fees in the amount of P5,000.00 and the cost of the suit. PETITIONER’S MOTIONS: On 28 April 1999, Rogelio filed a motion to lift the order of default and a motion for reconsideration seeking the court's understanding, as he was then in a quandary on what to do to find a solution to a very difficult problem of his life. On 29 April 1999, Rogelio filed a motion for new trial with prayer that the decision of the trial court dated 23 April 1999 be vacated and the case be considered for trial de novo pursuant to the provisions of Section 6, Rule 37 of the 1997 Rules of Civil Procedure. RTC’S ORDER ON PETITIONER’S MOTION: Order granting Rogelio's Motion for New Trial:

On 16 June 1999, the RTC issued an

WHEREFORE, finding defendant's motion for new trial to be impressed with merit, the same is hereby granted. The Order of this court declaring defendant in default and the decision is this court dated April 23, 1999 are hereby set aside but the evidence adduced shall remain in record, subject to cross-examination by defendant at the appropriate stage of the proceedings. In the meantime defendant's answer is hereby admitted, subject to the right of plaintiff to file a reply and/or answer to defendant's counterclaim within the period fixed by the Rules of Court. Acting on plaintiff's application for support pendente lite which this court finds to be warranted, defendant is hereby ordered to pay to plaintiff immediately the sum of P2,000.00 a month from January 15, 1999 to May 1999 as support pendente lite in arrears and the amount of P4,000.00 every month thereafter as regular support pendente lite during the pendency of this case. RTC HELD: The only issue to be resolved is whether or not the defendant is the father of the plaintiff Joanne Rodjin Diaz. Since it was duly established that plaintiff's mother Jinky Diaz was married at the time of the birth of Joanne Rodjin Diaz, the law presumes that Joanne is a legitimate child of the spouses Hasegawa Katsuo and Jinky Diaz. The child is still presumed legitimate even if the mother may have declared against her legitimacy. The legitimacy of a child may be impugned only on the following grounds provided for in Article 166 of the same Code. Paragraph 1 of the said Article provides that there must be physical

impossibility for the husband to have sexual intercourse with the wife within the first 120 days of the 300 days following the birth of the child because of — a) physical incapacity of the husband to have sexual intercourse with his wife; b) husband and wife were living separately in such a way that sexual intercourse was not possible; c) serious illness of the husband which prevented sexual intercourse. EVIDENCE IN THE LEGITIMACY OF JOANNE RODJIN DIAZ: It was established by evidence that the husband is a Japanese national and that he was living outside of the country and he comes home only once a year. Both evidence of the parties proved that the husband was outside the country and no evidence was shown that he ever arrived in the country in the year 1997 preceding the birth of plaintiff Joanne Rodjin Diaz. The defendant admitted having been the one who shouldered the hospital bills representing the expenses in connection with the birth of plaintiff. It is an evidence of admission that he is the real father of plaintiff. Defendant also admitted that even when he stopped going out with Jinky, he and Jinky used to go to motels even after 1996. Defendant also admitted that on some instances, he still used to see Jinky after the birth of Joanne Rodjin. Defendant was even the one who fetched Jinky after she gave birth to Joanne. On the strength of this evidence, the Court finds that Joanne Rodjin is the child of Jinky and defendant Rogelio Ong and it is but just that the latter should support plaintiff. RTC’S DECISION:

On 15 December 2000, the RTC rendered a decision and disposed:

WHEREFORE, judgment is hereby rendered declaring Joanne Rodjin Diaz to be the illegitimate child of defendant Rogelio Ong with plaintiff Jinky Diaz. The Order of this Court awarding support pendente lite dated June 15, 1999, is hereby affirmed and that the support should continue until Joanne Rodjin Diaz shall have reached majority age PETITIONER’S MOTION FOR RECONSIDERATION: Rogelio filed a Motion for Reconsideration, which was denied for lack of merit in an Order of the trial court dated 19 January 2001 PETITIONER’S APPEAL: From the denial of his Motion for Reconsideration, Rogelio appealed to the Court of Appeals. After all the responsive pleadings had been filed, the case was submitted for decision and ordered re-raffled to another Justice for study and report as early as 12 July 2002. DEATH OF ROGELIO ONG: During the pendency of the case with the Court of Appeals, Rogelio's counsel filed a manifestation informing the Court that Rogelio died on 21 February 2005; hence, a Notice of Substitution was filed by said counsel praying that Rogelio be substituted in the case by the Estate of Rogelio Ong, which motion was accordingly granted by the Court of Appeals. CA’S DECISION: Appeals held:

In a Decision dated 23 November 2005, the Court of

WHEREFORE, premises considered, the present appeal is hereby GRANTED. The appealed Decision dated December 15, 2000 of the Regional Trial Court of Tarlac, Tarlac, Branch 63 in Civil Case No. 8799 is hereby SET ASIDE. The case is hereby REMANDED to the court a

quo for the issuance of an order directing the parties to make arrangements for DNA analysis for the purpose of determining the paternity of plaintiff minor Joanne Rodjin Diaz, upon consultation and in coordination with laboratories and experts on the field of DNA analysis. No pronouncement as to costs. MOTION FOR RECONSIDERATION FILED: Petitioner filed a Motion for Reconsideration which was denied by the Court of Appeals in a Resolution dated 1 March 2006. CA’S JUSTIFICATION: In this case, records showed that the late defendantappellant Rogelio G. Ong, in the early stage of the proceedings volunteered and suggested that he and plaintiff's mother submit themselves to a DNA or blood testing to settle the issue of paternity, as a sign of good faith. However, the trial court did not consider resorting to this modern scientific procedure notwithstanding the repeated denials of defendant that he is the biological father of the plaintiff even as he admitted having actual sexual relations with plaintiff's mother. We believe that DNA paternity testing, as current jurisprudence affirms, would be the most reliable and effective method of settling the present paternity dispute. Considering, however, the untimely demise of defendant-appellant during the pendency of this appeal, the trial court, in consultation with out laboratories and experts on the field of DNA analysis, can possibly avail of such procedure with whatever remaining DNA samples from the deceased defendant alleged to be the putative father of plaintiff minor whose illegitimate filiations is the subject of this action for support. ISSUE Whether the Court of Appeals erred when it remanded the case to the court a quo for dna analysis despite the fact that it is no longer feasible due to the death of Rogelio G. Ong? RULING NO. As a whole, the present petition calls for the determination of filiation of minor Joanne for purposes of support in favor of the said minor. There had been divergent and incongruent statements and assertions bandied about by the parties to the present petition. But 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. Amidst the protestation of petitioner against the DNA analysis, the resolution thereof may provide the definitive key to the resolution of the issue of support for minor Joanne. Coming now to the issue of remand of the case to the trial court, petitioner questions the appropriateness of the order by the Court of Appeals directing the remand of the case to the RTC for DNA testing given that petitioner has already died. Petitioner argues that a remand of the case to the RTC for DNA analysis is no longer feasible due to the death of Rogelio. To our mind, the alleged impossibility of complying with the order of remand for purposes of DNA testing is more ostensible than real. Petitioner's argument is without basis especially as the New Rules on DNA Evidence allows the conduct of DNA testing, either motu proprio or upon application of any person who has a legal interest in the matter in litigation, thus: 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:

(a) A biological sample exists that is relevant to the case; (b) The biological sample: (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; (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 or integrity of the DNA testing. From the foregoing, it can be said that 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. As defined above, 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. WHEREFORE, the instant petition is DENIED for lack of merit. The Decision of the Court of Appeals dated 23 November 2005 and its Resolution dated 1 March 2006 are AFFIRMED. Costs against petitioner.

Appendix D (2): “Jesse Lucas vs. Jesus Lucas” Digest by Adrian Hilario DOCTRINE: FACTS: Petitioner, Jesse Lucas filed a Petition to Establish Filiation with a Motion for the Submission of Parties to DNA Testing before the Regional Trial Court (RTC). Jesse alleged that he is the son of his mother Elsie who got acquainted with respondent, Jesus S. Lucas in Manila. He also submitted documents which include (a) petitioner’s certificate of live birth; (b) petitioner’s baptismal certificate; (c) petitioner’s college diploma, showing that he graduated from Saint Louis University in Baguio City with a degree in Psychology; (d) his Certificate of Graduation from the same school; (e) Certificate of Recognition from the University of the Philippines, College of Music; and (f) clippings of several articles from different newspapers about petitioner, as a musical prodigy. Jesus learned of this and he filed a Special Appearance and Comment manifesting that the petition was adversarial in nature and therefore summons should be served on him. Meanwhile, Jesse filed a Very Urgent Motion to Try and Hear the Case which the RTC found to be sufficient in form and hence set the case for hearing. Jesus filed a Motion for Reconsideration arguing that DNA testing cannot be had on the basis of a mere allegation pointing to him as Jesse’s father. Acting on Jesus’ Motion for Reconsideration, the RTC dismissed the case and held that Jesse failed to establish compliance with the four procedural aspects for a paternity action enumerated in the case of Herrera v. Alba namely, a prima facie case, affirmative defences, presumption of legitimacy, and physical resemblance between the putative father and the child. This prompted Jesse to file a Motion for Reconsideration which the RTC granted. A new hearing was scheduled where the RTC held that ruling on the grounds relied upon by Jesse for filing the instant petition is premature considering that a full-blown trial has not yet taken place. Jesus filed a Motion for Reconsideration which was denied by the RTC. He then filed a petition for certiorari with the Court of Appeals (CA). The CA ruled in favour of Jesus, it noted that Jesse failed to show that the four significant aspects of a traditional paternity action had been met and held that DNA testing should not be allowed when the petitioner has failed to establish a prima facie case. ISSUE: Whether prima facie showing is necessary before a court can issue a DNA testing order. HELD: Yes, but it is not yet time to discuss the lack of a prima facie case vis-à-vis the motion for DNA testing since no evidence has, as yet, been presented by petitioner. Misapplication of Herrera v. Alba by the Regional Trial Court and the Court of Appeals. The statement in Herrera v. Alba that there are four significant procedural aspects in a traditional paternity case which parties have to face has been widely misunderstood and misapplied in this case. A party is confronted by these so-called procedural aspects during trial, when the parties have presented their respective evidence. They are matters of evidence that cannot be

determined at this initial stage of the proceedings, when only the petition to establish filiation has been filed. The CA’s observation that petitioner failed to establish a prima facie case is herefore misplaced. A prima facie case is built by a party’s evidence and not by mere allegations in the initiatory pleading. Section 4 of the Rule on DNA Evidence merely provides for conditions that are aimed to safeguard the accuracy and integrity of the DNA testing. It states that 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: (c) A biological sample exists that is relevant to the case; (d) The biological sample: (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; (e) The DNA testing uses a scientifically valid technique; (f) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (g) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or 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. This does not mean, however, that a DNA testing order will be issued as a matter of right if, during the hearing, the said conditions are established. In some states, to warrant the issuance of the 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. In these states, a court order for blood testing is considered a “search,” which, under their Constitutions (as in ours), must be preceded by a finding of probable cause in order to be valid. Hence, the requirement of a prima facie case, or reasonable possibility, was imposed in civil actions as a counterpart of a finding of probable cause. Courts in various jurisdictions have differed regarding the kind of procedures which are required, but those jurisdictions have almost universally found that a preliminary showing must be made before a court can constitutionally order compulsory blood testing in paternity cases. We agree, and find that, as a preliminary matter, before the court may issue an order for compulsory blood testing, the moving party must show that there is a reasonable possibility of paternity. As explained hereafter, in cases in which paternity is contested and a party to the action refuses to voluntarily undergo a blood test, a show cause hearing must be held in which the court can determine whether there is sufficient evidence to establish a prima facie case which warrants issuance of a court order for blood testing 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.”