[evid] Prelims J. Gito | Cdr.pdf

CHAPTER 1 A. BASIC PRINCIPLES EVIDENCE (Rule 128, Sec. 1) Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact To be considered evidence, the same must be sanctioned or allowed by the ROC. o It is no evidence if it is excluded by law or by the Rules even if it proves the existence or non-existence of a fact in issue. Evidence is required because of the presumption that the court is not aware of the veracity of the facts involved in a case. It is, therefore, incumbent upon the parties to prove a fact in issue through the presentation of admissible evidence. SCOPE AND APPLICABILITY The rules on evidence in the ROC are guided by the principle of uniformity. 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. (Sec. 2, Rule 128) Only applies to judicial proceedings. The rule does not apply to election cases, land registration and cadastral cases, naturalization and insolvency proceedings, except by analogy or in a suppletory character and whenever practicable and convenient (Sec. 4, Rule 1) Cases -

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Ong Chia vs. Republic, 328 SCRA 749 o The RTC granted the petitioner’s petition for naturalization. The CA reversed the decision on the ground that the RTC admitted evidence which were not formally offered in evidence in violation of Sec. 34, Rule 132 of the Rules of Court. o According to SC, the rule on formal offer of evidence is not applicable to petition for naturalization unless applied by analogy or in a suppletory character and whenever practicable and convenient. Sugar Regulatory Administration vs. Tormon o The general rule is that administrative agencies are not bound by the technical rules on evidence. o It can accept documents which cannot be admitted in a judicial proceeding where the Rules of Court are strictly observed. It can choose to give weight or disregard such evidence, depending on its trustworthiness. Sasan vs NLRC o Illustrates the rule on the non-applicability of the ROC, including the rules on evidence to non-judicial proceedings. o The respondent submitted documents to NLRC which it did not present before the LA. o The technical rules of evidence are not binding on labor tribunals (Manalo vs. TNS Phil.) Thus, written statements of certain employees can be admitted even if they were cross-examined.

CIVIL

Offer of compromise is not an admission of liability The concept of presumption of innocence does not apply. Evidence of character is admissible if the issue of character is involved (Sec. 51(b), Rule 130).

CRIMINAL

Offer of compromise, as a general rule is an implied admission of guilt. Presumption of innocence does apply Prosecution is not allowed to prove the bad moral character of the accused even if pertinent to the issue, unless in rebuttal (Sec. 50(a), Rule 130).

WHEN IS EVIDENCE NECESSARY? Issues of Fact INSTANCES WHERE EVIDENCE IS NO LONGER REQUIRED: When the pleadings in a civil case fail to tender an issue. judgment on the pleading will ensue in accordance with Rule 34. When parties stipulated on certain facts. When a fact is subject to judicial notice. When the fact is judicially admitted When the law presumes the truth of a fact. PROOF vs EVIDENCE Proof is the product of evidence Evidence is the medium of proof FACTUM PROBANDUM VS. FACTUM PROBANS Factum probandum is the fact or proposition to be established, while factum probans is the fact or material evidencing the fact or proposition to be established. The factum probandum is the fact to be proved; it is the fact which is in issue in a case and to which the evidence is directed. On the other hand, factum probans is the probative or evidentiary fact tending to prove the fact in issue Illustration In a suit involving damage to property caused by the negligence of the defendant, the factum probandum is the negligence of the defendant that caused damage to the property of the plaintiff. The factum probans are the evidences, whether it be object, testimonial, documentary, to prove the negligence of the defendant -

In civil cases, the factum probandum is the elements of the cause of action which are denied by the defendant.

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In criminal cases the factum probandum refers to matters which the prosecution must prove beyond reasonable doubt in order to justify the conviction. o RA 10591 – Illegal possession of firearm o RA 9165 – Dangerous Drugs Act

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In every tort case file under Art. 2176 of the NCC, the plaintiff has to prove o The damages suffered by him; o The fault or negligence of the defendant or some other person for whose act he must respond; and o Connection of cause and effect between the fault and negligence and the damages incurred.

Castillo vs. Prudentialife Plans, Inc. o The rules of evidence are not strictly observed in proceedings before the NLRC which are summary in nature and decisions may be made on the basis of position papers

In case of robbery, That there be personal property belonging to another 
 That there is unlawful taking of that property 
 That the taking is with intent to gain 
 That there is violence against or intimidation of persons 
or force upon things (Art. 293, RPC) 


Parol evidence rule, like other rules of evidence, should not be strictly applied in labor cases. Hence, a Labor Arbiter is not precluded from accepting and evaluating evidence other than, and even contrary to, what is stated in the CBA (Cirtek Employees Labor Union-Federation of Free Workers vs. Cirtek Electronics, 650 SCRA 656-66)

In case of prosecution for illegal sale of prohibited or dangerous drugs The identity of the buyer and the seller, the object, and the consideration The delivery of the things sold and the payment therefor.

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CIVIL The burden of proof is preponderance of evidence EVIDENCE PRELIMS | J. GITO

CRIMINAL The burden of proof is proof beyond reasonable doubt.

Is the presentation of the informant in illegal drug cases indispensable for a successful prosecution? No, because his testimony would merely be corroborative and cumulative. CDR NOTES |

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LIBERAL CONSTRUCTION OF THE RULES Must be liberally construed. A strict and rigid application of the rules must always be eschewed if it would subvert their primary objective of enhancing substantial justice. Procedural rules must be liberally interpreted and applied so as not to frustrate substantial justice. o However, to justify relaxation of the rules, a satisfactory explanation and subsequent fulfillment of the requirements have always been required. NOTE that there is no vested rights in the rules on evidence because they are subject to change by the SC pursuant to its powers to promulgate rules concerning pleading, practice, and procedure. The change is subject to the constitutional limitation on the enactment of ex post facto laws. WAIVER OF THE RULES The Rules may be waived. When an otherwise objectionable evidence is not objected to, the evidence becomes admissible because of waiver. As long as no law or principles of morality, good customs, and public policy are transgressed or no rights of third persons are violated, the rules on evidence may be waived by the parties. However, it is submitted that failure to object with respect to privileged communication involving state secrets communicated to a public officer in official confidence should not be construed as a waiver of the privileged character of the communication because public policy considerations as when the state secret is one involving national defense and security ART 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. As long as no law or principles of morality, good customs and public policy are transgressed or no rights are violated, the rules of evidence may be waived by the parties. B. ADMISSIBILITY OF EVIDENCE REQUISITES Rule 128, Section 3 Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. ADMISSIBILITY INVOLVES TWO QUESTIONS: Relevancy Competency Wigmore’s Two Axioms of Admissibility That none but facts having rational probative value are admissible; and That all facts having rational probative value are admissible unless some specific rule forbids them. NOTE: The first axiom is, in substance, the axiom of relevance while the second axiom is of competence. Will relevancy alone make the evidence admissible? No. An item of evidence may be relevant but not admissible. It is not admissible because although relevant, it may be incompetent, i.e., it is excluded by law or by a particular rule or by both. Illustrations: In a prosecution for homicide, the witness swears the accused killed the victim because his ever truthful boyhood friend told him so. The testimony although relevant, is inadmissible because witness was not testifying based on his personal knowledge of the event. The testimony is hearsay. In a civil case for collection of sum of money, testimony of an eyewitness to the tranx between the creditor and debtor is is competent evidence EVIDENCE PRELIMS | J. GITO

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Because the witness would be testifying on the basis of his personal knowledge HOWEVER, if the subject of the testimony includes the alleged frequent bouts of the debtor, that portion is inadmissible.

Upon timely objection, oral evidence will be excluded to prove a contract of sale of a parcel of land which does not conform to the Statute of Frauds. 1. RELEVANCY It is the relationship of evidence to the fact in issue. If the evidence will tend to prove the fact in issue, then the evidence is relevant. If there is no connection at all, then the evidence is not relevant. How do you determine the connection of evidence with the fact in issue? o It is not matter of law, rather it is a matter of logic. What is the test for relevance If the evidence induces belief as to the existence or the nonexistence of the fact in issue, the evidence is relevant. If it does not issue such belief, it is irrelevant. NOTE: Although competency of the evidence is a necessary component of admissible evidence, the question that most often arises in court is the relevance of the evidence. When an advocate offers a piece of evidence for the court’s consideration, he offers the evidence to prove a fact. This may either be: a. Immediate fact in issue b. Ultimate fact in issue Test for Determining the Relevancy Evidence must have such a relation to the fact in issue as to induce belief in its existence or nonexistence. (Sec. 4, Rule 128) To be relevant, evidence must relate to an issue of fact. If not, then it is irrelevant. If you introduce evidence for a fact not alleged in the pleading, then the introduction of such evidence may be objected for being irrelevant. NOTE: The matter of relevance is a matter that is addressed to the Court (People v. Galleno, 291 SCRA 761). Accordingly, there is no precise and universal test of relevancy provided by law. However, the determination of whether particular evidence is relevant rests largely at the discretion of the court, which must be exercised according to the teachings of logic and everyday experience. Problem: A was charged for killing B. The information was captioned as Murder. However, the Information failed to allege circumstances which would qualify the killing to murder. During trial, the prosecution introduced evidence of treachery. If you are the counsel for the defense, what procedural action will you do to protect the interest of your client? Answer: I will object to the presentation of evidence of treachery on the ground of relevancy. The qualifying circumstance was not put as an issue for failure to allege the same in the Information. Under Section 8, Rule 110, it is required that the qualifying and aggravating circumstance must be specified in the Information. DESIGNATION OF THE OFFENSE Section 8, Rule 110 o The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it People vs. Feliciano, May 5, 2014 In Anti-Hazing Law, disguise is an aggravating circumstances. The information was not able to allege that the participants in the hazing were wearing mask. But, they were able to prove the same during trial. CDR NOTES |

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Is it proper for the Court to appreciate the fact of wearing mask as an aggravating circumstance? No. The failure to state an aggravating circumstance, even if duly proven during the trial, will not be appreciated as such. It will violate the constitutional right of the accused to be informed of the nature and cause of the accusation against him.

COLLATERAL MATTERS GR: Evidence on collateral matters shall not be allowed, XPN: When it tends in any reasonable degree to establish the probability or improbability of the fact in issue. (Sec. 4, Rule 128) -

Collateral matters are not direct evidence. It is just additional or auxiliary evidence to the fact in issue. It could not directly prove the fact in issue.

Illustration: Although evidence of character is generally inadmissible, the accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. RELEVANCE OF EVID ON THE CREDIBILITY OF WITNESS Credibility or lack of it is always relevant. In every proceeding, the credibility of the witness is always an issue because it has the inherent tendency to prove or disprove the truthfulness of his assertions and consequently, the probative value of the evidence. Every type of evidence sought to be admitted, whether it be an object or document, requires the testimony of a witness who shall identify, testify, and affirm or deny the authenticity of the evidence. Thus, Sec. 11 of Rule 132 authorizes his impeachment by contradictory evidence. The Importance of Credibility of A Witness Allow the adverse party to test such credibility through crossexamination. What is the purpose of cross-examination? The importance of the credibility of a witness in a judicial proceeding is highlighted by rules which allow the adverse party to test such credibility through a process called cross- examination. NOTE: The adverse party can test the credibility of the witness through crossexamination not only on matters taken up in the direct examination. The broad spectrum of the questions allowable in a cross examination of a witness includes questions on matters connected with those taken up by direct examination. It includes questions designed to grant the cross-examiner sufficient fullness and freedom to test the accuracy and truthfulness if the witness, his interest or bias, or the reverse (Sec. 6, Rule 132). 2. COMPETENCY it is one that is not excluded by the law or rules. If the test of relevancy is logic and common sense, the test of competency is the law or rules If a law or particular rule excludes evidence, it is incompetent. The question as to competence is: is the evidence allowed by law or rules? If allowed, competent If not, incompetent Illustration: If it is required that only documentary evidence to which a yellow ribbon is attached may be admitted, but the adverse counsel presents the evidence to which a red ribbon is attached, the document is to be excluded. In general, competence refers to eligibility of an evidence to be received as such. However, when applied to a witness, the term competent refers to the qualifications of the witness in other words, it refers to his eligibility to take the stand and testify. EVIDENCE PRELIMS | J. GITO

Is objection on the ground that it is incompetent an accepted form of objection? No, because it is a general objection. The objection should specify the ground for its incompetence such as leading, hearsay or parol. Note that courts neither need nor appreciate generalities. General objections are viewed with disfavor because specific objections are required by Sec. 36, Rule 132. Thus, for purposes of trial objections, evidence is never incompetent. It is people who are. It is a sloppy usage to object to a testimony or a document as incompetent. Such term more appropriately describes a witness who under evidentiary rules, does not possess the qualifications of a witness or suffers from disqualification to be one. Although evidence is incompetent if excluded by law or rules, evidence is not objected to on the ground that it is incompetent. The objection must specify the ground for its incompetent (e.g. leading, hearsay, or parol) ADMISSIBLE EVIDENCE DISTINGUISHED FROM CREDIBLE EVIDENCE ADMISSIBLE EVIDENCE Means that the evidence is of such character that the court is bound to receive it or allow it to be introduced at the trial. It does not, however, guarantee credibility.

CREDIBLE EVIDENCE Refers to the worthiness of belief, that quality which renders a witness worthy of belief. It means “believability.”

ADMISSIBILITY AND WEIGHT OF THE EVIDENCE\ ADMISSIBILITY refers to the question of WON the evidence is to be considered at all. It also depends on it relevance and competence.

WEIGHT OR PROBATIVE VALUE refers to the question of WON it proves an issue. It also pertains to its tendency to convince and persuade.

Thus, a particular item of evidence may be admissible, but its weight depends on judicial evaluation within the guideline provided by the rules of evidence. KINDS OF ADMISSIBILITY 1.

Multiple Admissibility Evidence which is admissible for two or more purposes. o Example: Declaration of a dying person – it may be offered as dying declaration, or part of res gestae, or declaration against interest. Sometimes, it is inadmissible for one purpose but admissible for another or vice versa. o Example: Evidence of a person’s bad reputation for truth, honesty, or integrity is objectionable if offered to prove that he committed the crime charged but it may be admissible to impeach the credibility of a witness under the authority of Sec. 11, Rule 132. May also be admissible against one party, but not against another.

NOTE: If the testimony is offered to prove that the subject was completed pursuant to the contract, it cannot be offered to prove that the project was delayed. It must be noted that the purposes for which evidence is offered must be specified because such evidence may be admissible for several purposes under the doctrine of multiple admissibility, otherwise the adverse party cannot interpose the proper objection. May a private document be offered and admitted in evidence both as documentary and as object evidence? A private document may be offered and admitted both as documentary evidence and as object evidence depending on the purpose for which the document is offered. If offered to prove its existence, condition or for any purpose other than the contents of a document, the same is considered as an object evidence. CDR NOTES |

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When a private document is offered as proof of its contents, the same is considered as a documentary evidence (Sec. 2, Rule 130 of Rules of Court).

Conditional Admissibility Sometimes the relevance of an evidence is not readily apparent at the time it is offered, but the relevance of which may be seen when connected to other pieces of evidence not yet offered. In which case, such evidence may be admitted conditionally. Doctrine of Curative Admissibility allows a party to introduce otherwise inadmissible evidence to answer the opposing party’s previous introduction of inadmissible evidence. Thus, a party who first introduces either irrelevant or incompetent evidence into the trial cannot complain of the subsequent admission of similar evidence from the adverse party relating to the same subject matter Example

In a collection suit filed by A against B, A introduced evidence that B borrowed money from C, D and E, but did not pay. B objects on the ground that it is immaterial and constitute character assassination. Nevertheless, the Court allowed. B, can introduce evidence that he already paid his debt to C, D and E. In an action for damages arising from a car accident, the plaintiff, despite objections from the defendant, introduced evidence to show that in the past, the defendant had injured pedestrians because of his negligence. Is this evidence admissible? Discuss the effect of the doctrine of curative admissibility. This kind of evidence is admissible because evidence that a person did certain thing at one time is not admissible to prove that he did the same thing. If we follow the doctrine of curative admissibility, the court may be asked to give the party against whom the evidence was admitted the chance to contradict or explain the alleged past acts he committed and to show evidence of past acts of diligence of the defendant to counteract the prejudice which the improperly admitted evidence may have caused. Does the doctrine of curative admissibility refer to a situation where incompetent evidence was erroneously received by the court despite the objection from the other party? dapat may objection, tapos di pinansin ng Court Local case law does not extensively address the matter but some American cases, they hold that the doctrine of curative admissibility, in its broadest form, allows a party to introduce otherwise inadmissible evidence when necessary to counter the effect of improper evidence previously admitted by the other party without objection. Another case also allowed curative evidence even if there was a failure to object to the objectionable document. It is submitted in our jurisdiction, the doctrine of curative admissibility should not be made to apply where the evidence was admitted without objection because the failure to object constitutes a waiver of the admissibility of the evidence. In our jurisdiction, admissible evidence not objected to become admissible. NOTE: An objection to an otherwise inadmissible evidence is not merely suggested but required by the Rules of Court. Sec. 36, Rule 130, Rules of Court: Objections to evidence offered orally must be made immediately after the offer is made and objections to questions propounded in the course of the oral examination of the witnesses shall be made as soon as the grounds therefor shall become apparent. NOTE: It is only where the objection was incorrectly overruled, the court should allow the other party to introduce evidence to contradict the evidence improperly admitted in order to cure the prejudice caused to the other party against whom the offered evidence was erroneously admitted. Common reason suggests that there is a waiver, there is no defect to cure. What is the reason for the limitation as to the application EVIDENCE PRELIMS | J. GITO

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If no limitations are placed on the doctrine of curative admissibility, the doctrine will predictably be open to abuse and will encourage counsel not to object to an admissible evidence to “open the door” for him to introduce inadmissible evidence. The more logical rule should be done which will not allow a party to be heard through the offering of inadmissible evidence if he declines or fails to timely object to the other party’s inadmissible evidence. One American case puts it: “A breach of the rules of evidence by one party does not suspend those rules with respect to the other party”

CLASSIFICATION OF EVIDENCE DIRECT It proves a fact without the need to make an inference from another fact.

CIRCUMSTANTIAL It is that evidence which indirectly proves a fact in issue through an inference which the fact finder draws Judge is the fact finder from the evidence established. NOTE: When the evidence is circumstantial, a fact is established by making an inference from a previously established fact. The court, thus, uses a fact from which an assumption is drawn. Conviction by Circumstantial evidence, Requisites: There is more than one circumstance The facts from which the inference are derived are proven The combination of all the circumstances is such as to produce conviction beyond reasonable doubt NOTE: A conviction based on circumstantial evidence must exclude each and every hypothesis consistent with innocence. Hence, if the totality of the circumstances eliminates beyond reasonable doubt the possibility of innocence, conviction is proper. People vs Bernal Circumstantial evidence may be a basis for conviction and such conviction can be upheld provided the circumstances proven constitute an unbroken chain which leads to one fair and reasonable conclusion that points to the accused to the exclusion of all others as the guilty person. Circumstantial evidence is not a weaker defense vis-à-vis direct evidence. As to probative value, the Court considers circumstantial evidence of a nature identical to direct evidence because no greater degree of certainty is required when the evidence is circumstantial than when it is direct. In both types of evidence what is required is proof beyond reasonable doubt. People vs Daliray direct evidence is not dispensable to prove a crime charged. It may be proved by circumstantial evidence. Bastian v. CA Direct evidence of the commission of a crime is not the only basis on which a court draws its findings of guilt. Established facts that form a chain of circumstances can lead the mind intuitively or impel a conscious process of reasoning towards a conviction. If direct evidence is insisted on under all circumstances, the prosecution of vicious felons who commit heinous crimes in secret or secluded places will be impossible to prove (People v. Sevilleno). People v. Corpuz When the prosecution’s evidence rests on circumstantial evidence alone, it is imperative that the chain of circumstances establish the guilt of the accused beyond reasonable doubt. Accordingly, where the evidence admits 2 interpretations one of which is consistent with guilt and the other with innocence, the accused must be acquitted. Amora v. People Direct evidence is not the sole means of establishing guilt beyond reasonable doubt. Established facts that form a chain of circumstances can lead the mind intuitively or impel a conscious process of reasoning towards a conviction. CDR NOTES |

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Indeed, rules on evidence and principles in jurisprudence have long recognized that the accused may be convicted through circumstantial evidence.

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Before this may be applied, the witness must be shown to have willfully falsified the truth on one or more material points.

ALIBI; DENIAL CUMULATIVE It refers to evidence of the same kind and character as that already given which tend to prove the same proposition. Ex. Lahat testimonial evidence (same kind)

CORROBORATIVE It is one which is supplementary to that already given tending to strengthen or confirm it. It is additional evidence of different character.

Corroborative testimony is not always required. There is no law which requires that the testimony of a single witness has to be corroborated, except where expressly mandated in determining the value and credibility of evidence. Witnesses are to be weighed, not numbered (People v. Pabalan). The testimony of a sole eyewitness is sufficient to support conviction so long as it is clear, straightforward and worthy of credence by the trial court (People v. Rama). When is corroborative evidence necessary? It is only when there are reasons to suspect that the witness falsified the truth or that his observations are inaccurate (Mangangey v. Sandiganbayan). Corroboration of the testimony of a child witness Under the Rule on Examination of a Child Witness, corroboration shall not be required of a testimony of a child. His testimony if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and non-criminal cases (People v. Rama). POSITIVE NEGATIVE Evidence is said to be It is negative when the positive when a witness witness states that an event affirms in the stand that a did not occur or that state of certain state of facts does facts alleged to exist did not exist or a certain event exist. happened. NOTE: These categories of evidence have been normally associated with testimonial evidence but there is no rule which precludes their application to other forms of evidence. Positive and negative evidence may likewise refer to the presence or absence of something. Thus, the presence of fingerprints of a person in a particular place is positive evidence of his having been in said place although absence of his fingerprints does not necessarily mean he was not in the same place. Weight of Positive and Negative The defense of denial is viewed with disfavor for being inherently weak. It cannot prevail over the positive and credible testimony of prosecution witnesses (People vs. Reyes, GR No. 194606, Feb. 18, 2015) Greater weight is given to positive identification of the accused by the prosecution witnesses than the accused’s denial (People vs. Solina, January 13, 2016) Is a negative finding on a paraffin test a conclusive evidence that one has not fires a gun? No, because it is possible for a person to fire a gun and yet bear no traces of nitrates or gunpowder as when the culprit washes his hands or wears gloves (People v. Cerilla, November 28, 2007). C. MISCELLANEOUS DOCTRINES FALSUS IN UNO, FALSUS IN OMNIBUS “False in one thing, false in everything” If the testimony of a witness on a material issue is willfully false and given with an intention to deceive, the jury may disregard all the witness’ testimony. This doctrine deals only with the weight of the evidence and not a positive rule of law. EVIDENCE PRELIMS | J. GITO

The defense of alibi is inherently weak and must be rejected when the identity of the accused is satisfactorily and categorically established by eyewitness to the offense, esp. when such eyewitnesses have no ill-motive to testify falsely. Alibi is not always false and without merit. Denial is an inherently weak defense and must be buttressed by other persuasive evidence of non-culpability to merit credibility. The defense of denial fails even more when the assailant was positively identified by credible witnesses, against whom no ulterior motive could be ascribed. The well-established rule is that denial and alibi are self-serving negative evidence; they cannot prevail over the spontaneous, positive, and credible testimonies of the prosecution witnesses who pointed to and identified the accused-appellant as the malefactor. FRAME-UP For this claim to prosper, the defense must adduce clear and convincing evidence to overcome the presumption. The defense is not looked upon with favor due to its being conveniently concocted and is commonly used as a defense in most prosecutions arising from the violations of Dangerous Drugs Act DELAY AND INITIAL RELUCTANCE IN REPORTING A CRIME It does not render testimonies false or incredible, for the delay may be explained by the natural reticence of most people and their abhorrence to get involved in a criminal case. More than this, there is always the inherent fear of reprisal, which is quite understandable, esp. if the accused is a man of power and influence. FLIGHT OF NON-FLIGHT OF THE ACCUSED Non-flight does not signify innocence; it is simple inaction, which may be due to several factors. Flight is indicative of guilt, but its converse is not necessarily true; flight per se is not synonymous with guilt and must not always be attributed to one’s consciousness of guilt. o HOWEVER, when flight is unexplained, it is a circumstance from which an inference of guilt may be drawn. CHAPTER II A. BURDEN OF PROOF AND BURDEN OF EVIDENCE 1. BURDEN OF PROOF Section 1, Rule 131 Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. Onus probandi Relevant Concepts In civil cases, it is a basic rule that the party making allegations has the burden of proving them by preponderance of evidence. By preponderance of evidence is meant that evidence adduced by one side is, as a whole, superior to that of the other side (NFF Industrial Corporation vs. G& L Brokerage, January 12, 2015). In administrative cases, the complainant bears the burden in proving the averments of his complaint by substantial evidence. However, conjectures and suppositions are not sufficient to prove accussations (Lorenzana vs. Austria, April 2, 2014). In termination cases, the burden rests upon the ER to show that the dismissal is for a valid and just cause. The burden of proof that a debt was contracted lies with the creditorplaintiff. He who asserts, not who denies, must prove (Homeowners Savings & Loan Bank vs. Dailo, 453 SCRA 283). o However, he who pleads payment has the burden of proving it. (Bognot vs. RRI Lending, September 24, 2014) What is the test for determining where the burden of proof lies? CDR NOTES |

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which party to an action or suit will fail if he offers no evidence competent to show the facts averred as basis for the relief he seeks to obtain. If the defendant has affirmative defenses, he has the burden of proving them. (Aznar Brothers Realty vs. Aying, 458 SCRA 496)

When BoP is Fixed Fixed by pleadings. The claim of the plaintiff is spelled out in his complaint. The defendant’s defenses are to be found in his answer in the complaint. The burdens of proof of both parties do not shift during the course of the trial. 2. BURDEN OF EVIDENCE It is the duty of a party to go forward with evidence to overthrow the prima facie evidence against him (People vs. CA, February 25, 2015) If the accused admits the killing, the burden of evidence is shifted to the accused to prove his defenses (Flores vs. People, February 27, 2013) EQUIPOSE RULE Based on the principle that no one shall be deprived of life, liberty, or property without due process of law. It refers to a situation where the evidence of the parties is evenly balance, or there is doubt on which side the evidence preponderates. In this case, the decision should be against the party with the burden of proof. It is not applicable where the evidence presented is not equally weighty, such as where the evidence of the prosecution is overwhelming. In criminal cases, the rule provides that where the evidence is evenly balance, the constitutional presumption of innocence tilts the scales in favor of the accused. In labor cases, if doubt exists between evidence presented by the ER and EE, the scales of justice must be tllted in favor of the EE. B. PRESUMPTIONS CONCEPT OF PRESUMPTIONS It is an assumption of fact resulting from the rule of law which require such fact to be assumed from another fact or group of facts found or otherwise established in an action (Black Law Dictionary) It is an inference of the existence or nonexistence of a fact which courts are permitted to draw from proof of other facts (In the matter of the Intestate of Delgado and Rustia, 480 SCRA 334) It is not an evidence. They merely affect the burden of offering evidence. Examples Prior rents or installments had been paid when a receipt for the later installment is produced (Sec. 3(i), Rule 131; Art. 1177) Common Carrier is presumed to be liable (1756) Money paid by one to another was due to the latter (Sec. 3(f), Rule 131) Official duty has been regularly performed (Sec. 3(m), Rule 131) EFFECT OF PRESUMPTION A party in whose favor the legal presumption exists may rely on and invoke such legal presumption to establish a fact in issue. One need not introduced evidence to prove the fact for a presumption is prima facie proof of the fact presumed (Diesel Construction vs. UPSI Property, 549 SCRA 12) INFERENCE Factual conclusion that can rationally be drawn from other facts One that is a result of the reasoning process. It need not have a legal effect EVIDENCE PRELIMS | J. GITO

PRESUMPTION A rule of law directing that if a party proves certain facts at a trial or hearing, the factfinder must also accept an additional fact as proven unless sufficient evidence is introduced

because it is not mandated by law.

tending to rebut the presumed facts. In a sense, a presumption is an inference w/ is mandatory unless rebutted

KINDS OF PRESUMPTION Presumptions are classified into of law and of fact A. Presumptions of Law A.1 Conclusive when the presumption becomes irrebuttable upon the presentation of evidence and any evidence tending to rebut the presumption is not admissible Conclusive Presumptions under the Rules Section 2, Rule 131 Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing is true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it; The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them. Estoppel Prevents persons from going back on their own acts and representations, to the prejudice of others who have relied on them. A.2 Disputable if it may be contradicted by other evidence. Effect of Disputable Presumption The effect of a presumption upon a burden of prrof is to create the need of presenting evidence to overcome the prima facie case created by the presumption. If no contrary proof is offered, the presumption will prevail (Diaz vs. People, GR No. 2018113, December 2, 2013) Disputable Presumption Under the Rules Sec. 3(m), Rule 131 That official duty has been regularly performed. The presumption of regularity in the performance of official functions cannot, by itself, overcome the presumption of innocence. Evidence of guilt beyond reasonable doubt, is nothing else, is required to erase all doubts as to the culpability of the accused (Zafra vs. People, 671 SCRA 396). In the absence of satisfactory explanation, one found in possession of and used a forged document is the forger and therefore guilty of falsification. If a person had in his possession a falsified document and made use of it, taking advantage of it and profiting from it, the clear presumption is that he is the material author of the falsification (Maliwat vs. CA, 256 SCRA 718) Examples: 1. That a person is innocent of a crime or a wrong 
 2. That an unlawful act was done with unlawful intent;
 3. That a person intends the ordinary consequences of his 
voluntary act 
 4. That a person takes ordinary care of his business 5. The evidence willfully suppresses would be adverse if 
produced; 6. That money paid by one another was due to the latter; 7. That a thing delivered by one to another belonged to the latter; 8. That an obligation delivered up to the debtor has been paid 9. That prior rents or installments had been paid when a receipt for the latter ones is produced; 10. That a person acting in a public office was regularly appointed or elected to it; 11. That official duty has been regularly performed; 12. That a court, or judge, acting as such, whether in the Philippines or elsewhere, was acting in the lawful 
exercise of jurisdiction; 13. That private transactions have been fair and regular; 14. That the ordinary course of business has been followed; 15. That there was a sufficient consideration for a contract CDR NOTES |

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16. That a negotiable instrument was given or indorsed for a 
sufficient consideration. 
 B. Presumptions of Fact When assumption or made from the facts without any direction or positive requirement of law It arises because reason itself allows it. o If A attacks B without provocation, the logical presumption arises that A does not have tender feelings towards B. PRESUMPTIONS OF DEATH

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knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.

In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. It is the weight, credit, and value of the aggregate evidence on either side and usually considered to be synonymous with the term “greater weight of the evidence”

1.

Absence of 7 years If it is unknown whether or not the absentee is still alive, he is considered dead for all purposes but not of succession

It also means probability of the truth. It is the evidence which is more convincing to the court as worthier of belief that which is offered in opposition thereto.

2.

Absence of 10 years The absentee shall be considered dead for the purpose of opening his succession only after an absence of 10 years. Before lapse of 10 years, he shall not be considered dead if the purpose if the opening of his succession.

3.

Absence of 5 years In relation to the immediately preceding number, if the absentee disappeared after the age of 75 years, his absence of 5 years is sufficient for the purpose of opening his succession in which case, it is not necessary to wait for the lapse of 10 years.

SUBSTANTIAL EVIDENCE Rule 133, Section 5 In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. It refers to such relevant evidence which reasonable mind might accept as adequate to support a conclusion (Montinola vs. PAL, Sept. 14, 2014) This degree of evidence applies to administrative cases – those filed before admin and quasi-judicial bodies.

4.

Absence of 4 years A person is deemed dead for all purposes even for the purpose of the division of his estate among the heirs in any of the ff cases: o If the person is on board a vessel that was lost during a sea voyage or an aircraft which is missing o if the person is a member of the armed forces o if the person has been in danger of death under other circumstances and whose existence has not been known for 4 years. o If the person is married and has been absent for 4 consecutive years, the spouse present may contract a subsq. Marriage if he or she has a well-founded belief that the absent spouse is already dead.

PRESUMPTION OF INNOCENCE The presumption of innocence is founded upon the first principles of justice. Its purpose is to balance the scales in what could otherwise be an uneven contest between the lone individual pitted against the People and all the sources at their command. The accused must be acquitted and set free if his guilt cannot be proved beyond the whisper of a doubt. Accordingly, conflicts in evidence must be resolved upon the theory of innocence rather than upon a theory of guilt when it is possible to do so (People v. Alvario, G.R. No. 120437). C. QUANTUM OF EVIDENCE PROOF BEYOND REASONABLE DOUBT Rule 133, Section 2. Proof beyond reasonable doubt. - In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. PREPONDERANCE OF EVIDENCE Rule 133, Section 1 Preponderance of evidence, how determined. — In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity of EVIDENCE PRELIMS | J. GITO

Quantum of Evidence in a Petition for A Writ of Amparo The parties shall establish their claims by substantial evidence. Will the acquittal an administrative result in the dismissal of the criminal case? No. It will not follow. Administrative and criminal proceedings are two different proceedings. They involve different procedure. Thus, the prosecution is not precluded from adducing evidence to discharge the burden of proof required in criminal cases. (Paredes vs. CA, 528 SCRA 577) CLEAR AND CONVINCING EVIDENCE It is clear and convincing if it produces in the mind of the trier of fact a firm belief or conviction as to the allegation sought to be established. It is intermediate, being more than preponderance of evidence, but not to the extent of such certainty as is required beyond reasonable doubt in criminal cases. (Black Law Dictionary) When is quantum of clear and convincing evidence applied? In extradition proceedings (Govt., of Hongkong vs. Olalia, 521 SCRA 470) In proving justifying circumstance (People vs. Fontanilla, 664 SCRA 150). Forgery Annulment or reconveyance of title. An allegation of frame-up and extortion by police officers. Alibi or denial. Claiming of moral damages. A person who seeks confirmation of an imperfect or incomplete title to a piece of land on the basis of possession by himself and his predecessors-in-interests. CHAPTER III. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS JUDICIAL NOTICE There are matters in litigation which must be admitted without need for evidence. Examples: 1. That a place where the crime was committed, such as Quezon City actually exists 2. There is no need to adduce evidence that the statute allegedly violated exist because the court is charged with knowledge of the law CDR NOTES |

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3. 4.

it being the product of an official act of the legislative department of the Philippines There is likewise no need to adduce evidence that there are 24 hours in a day and that the sun rises in the east and sets in the west. The fact the Cebu lies in the Visayan Region needs no further evidence.

Q: What is the basis of judicial notice? A: It is based on the maxim, “what is known need not be proved,” hence when the rule is invoked, the court may dispense with the presentation of evidence on judicially cognizable facts. Functions of judicial notice. To abbreviate litigation by the admission of matters that need no evidence because judicial notice is a substitute for formal proof of a matter by evidence. It takes the place of proof and is of equal force. Evidence shall be dispensed with because the matter is so well known and is of common knowledge not to be disputable.

o

o

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The Court must have judicial notice of the declaration of the President as an official act. o In this case the Court took judicial notice of the declaration of the President that the Philippine government had decided not to continue with the ZTE-NBN Project due to several reasons and constraints. They are official acts and thus, a matter of mandatory judicial notice under Sec. 1 of Rule 129. (Suplico v. NEDA)

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A court has the mandate to apply relevant statutes and jurisprudence in determining whether the allegation in a complaint establish a cause of action. A court cannot disregard decisions material to the proper appreciation of the questions before it. (DENR v. DENR Region 12 employees)

NOTE: Judicial notice cannot be used to fill in the gaps in the party’s evidence. It should not be used to deprive an adverse party of the opportunity to prove a disputed fact. KINDS OF JUDICIAL NOTICE Q: What are the kinds of judicial notice? A: 1. Mandatory – no motion or hearing is necessary for the court to take judicial notice of a fact because this is a matter which a court ought to take judicial notice of. 2. Discretionary – public knowledge, capable of unquestionable demonstration, ought to be known by the judges because of their judicial functions. A.

Judicial Notice, 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. (Sec. 1, Rule 129) When mandatory. 1. The existence and territorial extent of states 2. The political history, forms of the government and symbols of nationality of sates 3. The law of nations 4. The admiralty and maritime courts of the world and their 5. seals 6. The political constitution and the history of the Philippines 7. The official acts of the legislative, executive and judicial departments of the Philippines 8. The law of nature 9. The measure of time 10. The geographical divisions -

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When the matter is subject to a mandatory judicial notice, no motion or hearing is necessary – a matter which a court ought to take judicial notice of. It would be error for a court not to take a judicial notice of an amendment of Rules of Court. o Even if petitioners did not raise or allege the amendment of the Rules of Court in their motion for reconsideration, the CA should have taken mandatory judicial notice of the same. Under Sec.1 of Rule 129, a court shall take judicial notice among others, of the official acts not only of the legislative and executive departments but also of the judicial department. (Siena Realty Corp. v. Gal-lang) Every court must take judicial notice of decisions of the Supreme Court. However, an affidavit attached to a pleading is not among the matters which the rule mandatorily requires to be judicially notified. Hence, a formal offer is necessary.

EVIDENCE PRELIMS | J. GITO

A document, or any article for that matter, is not evidence when it is simply marked for identification; it must be formally offered, and the opposing counsel given an opportunity to object to it or to cross-examine the witness called upon to prove or identify it. A formal offer is necessary since judges are required to base their findings of fact and judgment only and strictly upon the evidence offered by the parties at the trial. Xxx

Questions: • Is it required to present evidence on the existence of the treaty of Paris? • Is it required to present evidence on the existence of a country? • Is it required to present evidence to prove the deliberation of Congress? • Is it required to present evidence on the existence of a foreign law? • What is processual presumption? B.

Judicial Notice, Discretionary

A court may take judicial notice of matters which are of 1) public knowledge, or 2) are capable of unquestionable demonstration, or 3) ought to be known to judges because of their judicial functions. (Sec. 2, Rule 129) Q: What apply? A: 1. 2. 3. -

are the requisites for the principles of discretionary judicial notice to The matter must be one of common knowledge The matter must be settled beyond reasonable doubt The knowledge must exist within the jurisdiction of the court.

The court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact which the court has no constructive knowledge. Therefore, a court cannot take judicial notice of a factual matter in controversy.

NOTE: The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Judicially noticed fact must be one not subject to a reasonable dispute that is either: a. Generally known within the territorial jurisdiction of the trial court b. Capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable. Facts which are universally known, and which may be found in encyclopedias, dictionaries and 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 common knowledge of every person. On the other hand, matters which are capable of unquestionable demonstration pertain to fields of professional and scientific knowledge. As to matters which ought to be known to judges because of their judicial functions, an example would be facts which are ascertainable from the record of the court proceedings, e.g., as to when the court notices were received by a party (People v. Tundag, 342 SCRA 704). Problem There are two (2) civil cases pending between the same parties. One is being heard by Branch 92. The other one is being heard by Branch 93. Can Branch 92 take judicial notice of the case pending in Branch 93? Suppose the two cases are pending in the same branch, which is Branch 92, can the Judge take judicial notice of the other case between the same parties? CDR NOTES |

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Answer: A court will take judicial notice of its own acts and records in the same case (Republic vs. CA, 277 SCRA 633). Courts are not authorized to take judicial notice of the contents of the records of other cases, even such cases have been tried or pending in the same court (LBP vs. Yatco Agricultural Enerprises, Jan. 15, 2014). Q: Can a court take judicial notice of a factual matter in controversy? A: No. Before taking such judicial notice, the court must “allow the parties to be heard thereon” (Herrera v. Bollos, 374 SCRA 107). Q: Where does the discretion lie? A: Judicial notice rests on the wisdom and discretion of the court. The power to take judicial notice must be exercised with caution and care must be taken that the requisite notoriety exists. Q: In case of doubt, how should the court resolve the same? A: Any reasonable doubt on the matter sought to be judicially noticed must be resolved against the taking of judicial notice (State Prosecutors v. Muro, 236 SCRA 505). NOTE: 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 (Land Bank of the Philippines v. Wycoco, 419 SCRA 67). Sec. 3. Judicial notice, when hearing necessary. — During the trial, the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon. After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case. (n) Q: Can market value be judicially noticed? A: While the market value may be one of the bases in determining just compensation, the same cannot be arbitrarily arrived at without considering the factors to be appreciated in arriving at the FMV of the property. The court should have allowed the parties to present evidence thereon instead of practically assuming a valuation without the basis. Judicial knowledge and knowledge of a Judge. Judicial notice may be taken of a fact which judges ought to know because of their judicial functions (Sec. 2, Rule 129). Judicial notice is not the same with 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 (Land Bank of the Philippines v. Wycoco, 419 SCRA 67; State Prosecutors v. Muro, 236 SCRA 505). Q: Is judicial notice limited by the actual knowledge of the individual judge or court? A: No. A judge must take judicial notice of a fact if it is one which is the proper subject of judicial cognizance even if it is not within the personal knowledge. A judge may not take judicial notice of a fact which he personally knows if it is not part of evidence or not a fact generally known within its territorial jurisdiction. Q: What is the rule on foreign laws? A: Courts of the forum will not take judicial notice of the law prevailing in another country. Foreign laws must be alleged and proved. Stage when judicial notice may be taken The court can take judicial notice of a fact during or after trial: 1. Judicial notice may be taken during the trial of the case. The court, during the trial, may announce its intention to take judicial notice of any matter. It may do so on its own initiative or on the request of any party and allow the parties to be heard.

A: Only for the purpose of determining the propriety of taking judicial notice of a certain matter and not for the purpose of proving the issues in the case. 2. Judicial notice may also be taken by the proper court after the trial, and before judgment. Judicial notice may also be taken on appeal. The proper court, on its own initiative or on request of any party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is a decisive of a material issue in the case. Judicial notice of foreign laws; Doctrine of Processual Presumption Q: What is the rule on foreign laws? A: It is well-settled that our courts cannot take judicial notice of foreign laws. Like any other facts, they must be alleged and proved. Australian marital laws for example, are not among those matters that judges are supposed to know by reason of their juridical functions (Garcia v. Garcia-Recio, 366 SCRA 437). Q: The rule is foreign laws must be alleged and proved. What is the effect of the absence of proof? A: Then, the foreign law will be presumed to be the same as the laws of the jurisdiction hearing the case under the doctrine of processual presumption (Northwest Orient Airlines v. CA, 241 SCRA 192). Q: What if the foreign law is within the actual knowledge of the court such as when the law is generally well known? A: The court may take judicial notice of the foreign law (PCIB v. Escolin, 56 SCRA 266). NOTE: When the foreign law is part of a published treatise, periodical, or pamphlet and the writer is recognized in his profession, or calling as expert in the subject, the court may take judicial notice of the treatise containing the foreign law. XPN to hearsay rule also Judicial notice of the Law of Nations. When the foreign law refers to the law of nations, said law is subject to a mandatory judicial notice under Se. 1 of Rule 129. Under Sec. 2, Art. II of the Constitution, the Philippines adopts the generally accepted principles of international law as part of the law of the land. Judicial notice of Municipal Ordinances MTCs must take judicial notice of municipal ordinances in force in the municipality in which they sit (U.S. v. Blanco, 37 Phil 126). An RTC must also take judicial notice of municipal ordinances in force in the municipalities within their jurisdiction but only so required by law (City of Manila v. Garcia, 19 SCRA 413). The CA may take judicial notice of municipal ordinances because nothing in the Rules prohibits it from taking cognizance of an ordinance which is capable of unquestionable demonstration (Gallego v. People, 8 SCRA 813). Judicial notice of a Court’s Own acts and records A court may take judicial notice of its own acts and records in the same case (Republic v. CA, 277 SCRA 633). The court is not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been heard or are actually pending before the same judge (Tabuena v. CA, 196 SCRA 650). Q: What are the exceptions to this rule? A: 1. When in the absence of any objection, with knowledge of the opposing party, the contents if said other cases are clearly referred to by title and number in a pending action and adopted or read into the record of the latter 2. When the original record of the other case or any part of the other case or any part of it is actually withdrawn from the archives at the court’s discretion upon the request, or with the consent, of the parties, and admitted as part of the record of the pending case (Tabuena v. CA, 196 SCRA 650). Rule of Judicial Notice of Post office practices That a registered letter when posted is immediately stamped with the date of its receipt, indicating therein the number of registry, both on the covering envelope itself and on the receipt delivered the letter to the office is not a proper subject of judicial notice.

Q: In the above rule, what is the purpose of the hearing? EVIDENCE PRELIMS | J. GITO

CDR NOTES |

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This post office practice is not covered by any of the instances under the Rules and is not of unquestionable demonstration (Republic v. CA, 107 SCRA 504)

Judicial notice of banking practices Q: May judicial notice be taken of the practice of banks in conducting background checks on borrowers and sureties? A: Yes. It is noted that it is their uniform practice, before approving a loan, to investigate, examine, and assess would- be borrowers’ credit standing or real estate offered as security for the loan applied for (Solidbank Corp. v. Mindanao Ferroalloy Corp., 464 SCRA 409). Judicial notice of financial condition of the government Judicial notice could be taken of the fact that the government is and has for many years been financially strapped, to the point that even the most essential services have suffered serious curtailment (La Bugal-B’laan Tribal Association v. Ramos, 445 SCRA). NOTICE: The official acts of the legislative, executive and judicial departments are proper subjects of mandatory judicial notice (DENR v. DENR Region 12 Employees). Judicial notice of other matters 1. The trial courts can take judicial notice of the general increase in rentals of real estate especially of business establishments. 2. A court cannot take judicial notice of an administrative regulation or of a statute that is not yet effective. 3. Judicial notice of the age of the victim is improper. 4. In this age of modern technology, the courts may take judicial notice that business transactions may be made by individuals through teleconferencing. (Expertravel and Tours v. CA, 459 SCRA 147). 5. It can be judicially noticed that the scene of the rape is not always nor necessarily isolated or secluded, for lust is no respecter of time or place (People v. Tundag, 342 SCRA 147). 6. The court has likewise taken judicial notice of the Filipina’s inbred modesty and shyness and her antipathy in publicly airing acts which blemish her honor and virtue. 7. The trial court properly took judicial notice that Talamban, Cebu City is an urban area (Chiongbian-Oliva v. Republic, 2007). 8. It is of judicial notice that the judiciary is beset with the gargantuan task in unclogging dockets, not to mention the shortage of judges occupying positions in far flung areas (GSIS v. Vallrar, 2007). 9. Judicial notice can be taken of the fact that testimonies during the trial are much more exact and elaborate than those stated in sworn statements, usually being incomplete and inaccurate for a variety of reasons. 10. Judicial notice can be had that drug abuse can damage the mental faculties of the user. 11. The court cannot be expected to take judicial notice of the new address of lawyer who has moved or to ascertain on its own whether or not the counsel of record has been changed and who the new counsel could possibly be or where he probably resides or holds office. JUDICIAL ADMISSIONS Sec. 4.Judicial admissions. — An admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. (2a) Q: What are the elements for a judicial admissions be considered? A: 1. The same must be made by a party to the case. 2. The admission to be judicial must be made in the course of proceedings in the same case. Otherwise, it will be considered as an extra-judicial admission for purposes of the other proceeding where such admission is offered. 3. Sec. 4 of Rule 129 does not require a particular form for an admission. Such form is immaterial because the provision recognized either a verbal or a written admission. Q: Where can judicial admissions be made? A: A part may make judicial admissions in: 1. Pleadings; EVIDENCE PRELIMS | J. GITO

2. 3.

During trial, either verbal or written manifestations or stipulations; or In other stages of the judicial proceedings.

The stipulation of facts at the pre-trial of a case constitutes judicial admissions. They are binding and conclusive upon them. The veracity of judicial admissions requires no further proof and may be controverted only upon a clear showing that the admissions were made through palpable mistake or that no admissions were made. Admission in drafted documents An admission made in a document drafted for purposes of filling as a pleading but never filed, is not a judicial admission. If signed by the party, it is deemed an extrajudicial admission. If signed by the attorney, it is not even an admission by the party. The authority of the attorney to make statements for the client extend only to statements made in open courts or in pleadings filed with the court (Jackson v. Schine Lexington). Admissions made in pleadings and motions, GR: Admissions made in the pleadings of a party are deemed judicial admissions. This includes admissions made in the complaint. Thus, they cannot be contradicted unless there is a showing that it was made through palpable mistake or that no such admission was made. Admissions made in a motion are judicial admissions which are binding on the party who made them. Such party is precluded from denying the same unless there is a proof of palpable mistake (Herrera-Felix v. CA, 436 SCRA 87). XPN: In those rare instances when the trial court, in the exercise of its discretion and because of strong reasons to support its stand, may relive a party from the consequences of his admission. It cannot be contradicted unless it can be shown that the admission, the allegations, statements, or admissions contained in a pleading are conclusive as against the pleader (Heirs of Pedro Clemeña v. Heirs of Irene B. Bien, G.R. No. 155508). An answer is a mere statement of fact which the party filing it expects to prove, but it is not evidence (Spouses Santos v. Spouses Lumbao, G.R. No. 169129). An admission made in a pleading may be an actual admission as when a party categorically admits a material allegation made by the adverse party. An admission may also be inferred from the failure to specifically deny the material allegations in the other party’s pleadings. Averments in pleadings which are not deemed admissions There are averments in pleadings which are not deemed admitted even if the adverse party fails to make a specific denial of the same like immaterial allegations, conclusions, non-ultimate facts in the pleading as well as the amount of unliquidated damages. Implied admissions of allegations of usury Under sec. 11 of Rule 8, if the complaint makes an allegation of usury to recover usurious interest, the defendant must not only specifically deny the same but must also do so under oath. Otherwise, there is an implied admission of the allegation of usury. Implied admission of actionable documents When an action or defense is founded upon a written instrument, the genuineness and due execution of the same instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them and set forth what he claims to be the facts. Otherwise, there is a judicial admission pursuant to sec. 8, Rule 9. Failure to deny the genuineness and due execution of an actionable document does not preclude a party from arguing against the document by evidence of fraud, mistake, compromise, payment, statute of limitations, estoppels, and want of consideration. He is however precluded from arguing that the document is a forgery because the genuineness of the document has been impliedly admitted by his failure to deny the same under oath. Q: Does the failure of A to file a reply and deny the dacion and the confirmation statement under oath constituted a judicial admission of the genuineness and due execution of the said documents? A: Yes. Also, in resolving a demurrer, the court should not only consider the plaintiff’s evidence. It should also include judicial admissions, matters of judicial notice, stipulations made during the pre-trial, admissions, and presumptions (Casent Realty Development Corporation v. PhilBanking Corporation, G.R. No. 150731). CDR NOTES |

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Admissions in the Pre-trial of civil cases Admissions in the pre-trial, as well as those made during the depositions, interrogatories or requests for admission, are all deemed judicial admissions because they are made in the course of the proceedings of the case. Admissions in pre-trial briefs are judicial admissions and well- settled is the rule that an admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The parties are bound by the representations and statements in their respective pre-trial briefs submission of which being mandatory in a pretrial of a civil case. GR: The admissions of the parties during pre-trial as embodied in the pretrial order are binding and conclusive on them. XPN: Unless there is a clear showing that the admission was entered through palpable mistake. Admissions in the pre-trial of criminal cases (Rule 118) An admission made by the accused in the pre-trial of a criminal case is not necessarily admissible against him. To be admissible, the conditions under Sec. 2 of Rule 118 must be complied with: Sec. 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.

Q: Does the rule requiring an admission made or entered into during the trial conference to be reduced in writing and signed by the accused and his counsel before the same may be used in evidence against the accused, equally apply to stipulation of facts made during the trial? A: No, a stipulation of facts entered into by the prosecution and defense counsel during trial in open court is automatically reduced in writing and contained in the official transcript of proceedings had in court. The conformity of the accused in the form of his signature affixed thereto is unnecessary in view of the fact than an attorney who is employed to manage a party’s conduct of a lawsuit has a prima facie authority to make relevant admissions by pleadings, by oral or written stipulation which unless allowed to be withdrawn are conclusive. (People v. Hernandez, 206 SCRA 25; Silot vs. Dela Rosa, 543 SCRA 533) Q: During pre-trial Bimby personally offered to settle the case for 1M to the private prosecutor, who immediately put the offer on record. Is Bimby’s offer a judicial admission of his guilt? A: Yes. A judicial admission is one that is verbal or written, made by a party in the course of the proceedings in the same case. Under Sec. 27 of Rule 130, the judicial admission could be considered as an implied admission of guilt. Implied admissions in the modes of discovery Admissions obtained through depositions, written interrogatories or requests for admission are also considered judicial admissions. Under Sec.3 of Rule 26, any admission made pursuant to the request for admission is for the purpose of the pending action only. The admission shall not be considered as one for any other purpose nor may the same be used against him in any other proceeding. Sec. 2 of Rule 26 requires the other party to file and serve a sworn statement either denying specifically the matter of which an admission or requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. o The failure to do so will result into an implied admission of each of the matters of which an admission is requested. Since the defendant failed to comply with the requirements of the Rules, he is deemed to have made an implied admission of the matters subject of the request for admission. Admission in amended pleadings When a pleading is amended, the amended pleading supersedes the pleading that it amends and the admissions in the superseded pleading may be received in evidence against the pleader. But the admission will be treated as extra- judicial admission (Torres vs. CA, 131 SCRA 24; Ching vs. CA, 331 SCRA 16) Nature of admissions in superseded pleadings Admissions in a superseded pleading are to be considered as extrajudicial admissions which must be proven. Pleadings that have been amended disappear from the record, lose their status as pleadings EVIDENCE PRELIMS | J. GITO

and cease to be judicial admissions, and to be utilized as extrajudicial admissions, they must, in order to have such effect, be formally offered in evidence. Admissions in dismissed pleadings Admissions made in pleadings that have been dismissed are merely extrajudicial admissions. Q: How about admission of a proposed state witness? A: If the motion to discharge an accused as a state witness is denied, his sworn statement, submitted to support the motion, shall be inadmissible in evidence (Sec. 17, Rule 119) Hypothetical admissions in a motion to dismiss A motion to dismiss hypothetically admits the truth of the allegations of the complaint (Magno v. CA, 107 SCRA 285). However, the admission extends only to such matters of fact that have been sufficiently pleaded and not to mere epithets charging fraud, allegations of legal conclusions, or erroneous statements of law, inferences from facts not stated, matters of evidence or irrelevant matters (De Dios v. Bristol Laboratories, 55 SCRA 349). Admissions by counsel Q: What is the effect of admissions by counsel? A: They are generally conclusive upon a client (De Garcia v. CA, 37 SCRA 129). Even the negligence of counsel binds the client. Q: What is the exception to the rule? A: In case where reckless or gross negligence of counsel deprives the client of due process of law, or when its application will result in outright deprivation of the client’s liberty, or property, or when the interests of justice so require (Salazar v. CA, 376 SCRA 459). NOTE: Admissions made for the purpose of dispensing with proof of some facts are in the nature of judicial admissions. Such admissions are frequently those of counsel, or of the attorney of record, who is, for the purpose of the trial, the agent of his client. When such admissions are made for the purpose of dispensing with proof of some fact, they bind the client, whether made during or even after the trial. Consequences of judicial admissions Q: What is the consequence of judicial admissions? A: A party who judicially admits a fact cannot later challenge that fact, as judicial admissions are waiver of proof; production of evidence is dispensed with. No evidence is needed to prove judicial admission and it cannot be contradicted unless it is shown to have been made through palpable mistake or that no such admission was made but despite the presence of judicial admissions in a party’s pleading, the trial court is still given leeway to consider other evidence presented because admissions may not necessarily prevail over documentary evidence. Judicial admission are legally binding on the party making the admission. It is an established principle that judicial admission cannot be contradicted by the admitter who is the party himself and binds the person who makes the same, absent any showing that this was made through palpable mistake, no amount of rationalization can offset it (PCIC vs. Central Colleges of the Phil. 666 SCRA 540). Q: Under Sec. 4, Rule 129, what are the effects of judicial admissions? A: 1. They do not require proof 2. They cannot be contradicted because they are conclusive upon the party making it Q: What are the exceptions to this? A: 1. Upon showing that the admission was made throughpalpable mistake 2. When it is shown that no such admission was made. Q: What do you mean by palpable mistake? A: The mistake that would relieve the party from the effects of his admission is not any mistake. It must be one that is palpable, a mistake that is clear to the mind or plain to see. It is a mistake that is readily perceived by the senses or the mind. CDR NOTES |

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Q: When can a party use the admission that there is no such admission? A: This may be invoked when the statement of a party is taken out of context or that his statement was made not in the sense it is made to appear by the other party. Here, what he denies is the meaning attached to his statement, a meaning made to appear by the adverse party as an admission. CHAPTER IV: OBJECT AND DOCUMENTARY EVIDENCE OBJECT EVIDENCE SECTION 1.Object as evidence. — Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. (1a) Q: What is object evidence? A: It is the real thing itself consists of tangible things like gun, a broken glass, a piece of bloody clothing or the defective ladder that caused the fall of the plaintiff. It does not refer to the perception of the witness and recollection of that perception. It is not a reconstruction of past events as related by a witness on the stand. It is not a verbal description of something. It is not a replica or a mere representation of something. NOTE: It appeals directly to the senses of the court. Instead of relying on the recollection of the witnesses, an object evidence will enable the court to have its own first-hand perception of the evidence.

is, which are derived from his own perception, except as otherwise provided in these rules. (30a)

Thus, the following are the basic requisites for the admissibility of an object or real evidence: a. The evidence must be relevant b. The evidence must be authenticated c. The authentication must be made by a competent witness d. The object must be formally offered in evidence. NOTE: After its authentication, the object needs to be offered in evidence at the appropriate time. The formal offer of evidence is particularly a vital act before the admission of evidence because the court shall consider no evidence which has not been formally offered (Sec. 34, Rule 132). Object evidence and the Right against Self-Incrimination Q: May the right against self-incrimination be invoked against object evidence? A: No. In People v. Malimit (264 SCRA 167), the court held that the right against self-incrimination finds no application in the case because no testimonial compulsion was involved. Accordingly, such right is a prohibition of the use of physical or moral compulsion, to extort communication from him. It is a prohibition against legal process to extract from the accused’s own lips, against his will, admission of guilt. It does not apply in this case where the evidence sought to be excluded is not an incriminating statement but an object evidence.

Q: What is the effect of object evidence? A: It could have a very persuasive effect on the part of the court.

Categories of Object Evidence 1. Objects that have readily identifiable marks (unique object) 2. Object that are made identifiable (object made unique) 3. Object with no identifying mark

Q: May a human being be a form of real evidence? A: Yes. Where the racial characteristics of a party is at issue, the court may, at its discretion, view the person concerned. The court may likewise allow the exhibition of the weapon allegedly used in attacking the victim, the bloody garment of the victim or the personal effect, like the glove, left by the supposed assailant in the scene of the crime.

Demonstrative Evidence Q: What is demonstrative evidence? A: It is not the actual/real thing but it is referred to as demonstrative because it represents or demonstrates the real thing. It is not strictly real evidence because it is not the very thing involved in the case. Examples: map, diagram, photograph, model, motion pictures

Q: Is object evidence limited to visual alone? A: No, it covers the entire range of human senses: hearing, taste, smell, and touch. In a case where the issue is infringement of a musical composition, the court may listen to the composition involved. The court may not only look at but also touch the blade of knife to know whether or not it could have produced the incision characteristic of sharp blades. Q: In case of conflict between testimonial and physical evidence, which should prevail? A: Where the physical evidence runs counter to the testimonial evidence, the physical evidence should prevail (BPI v. Reyes, 2008). Physical evidence is a mute but eloquent manifestation of truth, and it ranks high in our hierarchy of trustworthy evidence. Requisites for admissibility of object evidence 1. The admissibility of object or real evidence like any other evidence requires that the object be both relevant and competent. To be relevant, the evidence must have a relationship to the fact in issue. To be competent, it must not be excluded by the rules or by law. 2. For the object not to be excluded by the Rules, the same must pass the test of authentication. The threshold foundation for real evidence is its being authenticated. To authenticate the object, it must be shown that the object is the very thing that is either the subject matter of the lawsuit or the very one involved to prove an issue in the case. Also, there must be someone who should identify the object to be the actual thing involved in the litigation. This someone is the witness. 3. It must be emphasized that every evidence, whether it be a document or an object, needs a witness. Even object evidence requires statements from witness to make its way into the realm of admissible evidence. In short, testimonial evidence provides the foundation for all types of evidence. The witness should have actual and personal knowledge of the exhibit he is presenting for admission. Sec. 36.Testimony generally confined to personal knowledge; hearsay excluded. — A witness can testify only to those facts which he knows of his personal knowledge; that

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NOTE: It is not separately defined in the Rules of Court and appears to have been incorporated under the general term “object” evidence. Q: Where does the admissibility of demonstrative evidence depend? A: It depends on laying the proper foundation for the evidence. The rule boils down to one question: Does the evidence sufficiently and accurately represent the object it seeks to demonstrate or represent? If it does, the evidence would be admissible. Q: For a photograph to be admissible, what is the rule? A: The same must be relevant and competent. It is competent when it is properly authenticated by a witness who is familiar with the scene or person portrayed and who testifies that the photograph faithfully represents what it depicts. Q: Should the photographer testify? A: Some courts insist the photographer to testify but this view has been eroded by the tendency of modern courts to admit as witness one who has familiarity with the scene portrayed (Sison v. People, 250 SCRA 58). Q: What are the requirements for photographic evidence of events, acts, or transactions shall be admissible? A: 1. It shall be presented, displayed, and shown to the court 2. It shall be identified, explained or authenticated by either: a. The person who made the recording, b. Some other person competent to testify on the accuracy thereof (Sec. 1, Rule 11, Electronic Rules of Evidence) NOTE: The admissibility of photographic evidence is within the discretion of the trial court, and its ruling in this respect will not be interfered with except upon a clear showing of an abuse of discretion. Q: What is the rule regarding motion pictures and recordings? A: The rules that apply to photographs generally apply motion pictures and recordings. Because of the possibility of tampering and distortion, courts have traditionally required a stricter standard for laying the foundation for motion pictures and tape recordings. CDR NOTES |

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Courts then would require detailed testimony as to the qualifications of the operator, a detailed description of the equipment used, the conditions under which the photograph and the recordings were taken. Modern courts however have taken judicial notice of how motion cameras and tape recorders work and their general reliability and their prevalent use.

NOTE: The person present when the activities of taking the pictures and recordings should testify that the motion picture accurately, faithfully, represents the place or person it purports to identify. Q: Does the authentication process need to involve the person who actually made them? A: No, it can be done by some other person as long as he is one who can testify as to its accuracy. NOTE: There is also a requirement that the recording be shown, presented, or displayed to the court (Sec. 1, Rule 11, Rules on Electronic Evidence). Q: What are the rules regarding diagrams, maps, and models? A: These types of evidence are presented to indicate the relative locations, positions of objects and persons. Aside from the requirement of relevance, a diagram, map, and model must be identified by a witness who is familiar with what the evidence depicts, and that the same is an accurate representation of the scene it portrays. NOTE: The question as to the sufficiency of the authentication is a matter of judicial discretion. Q: What is the rule regarding x-ray pictures? A: Also known as the skiagraphs or radiographs, x-ray pictures are admissible when shown to have been made under circumstances as to assure their accuracy and where relevant to a material issue in the case. Authenticated x-rays are normally involved in personal injury cases to show the location and the extent of the unjury. Q: Is the testimony of the person who took the x-ray required? A: Because the science of x-ray pictures is now well-founded and generally recognized, almost all courts no longer require testimony as to the reliability of an x-ray machine. NOTE: In-court reenactment of material events by the witness has been held permissible to help illustrate the testimony of a witness. View of an object or scene Yung court ang titingin sa “object” Courts have recognized that there are times when a party cannot bring an object to the court for viewing in the courtroom. In such a situation, the court may take a view of an object. The court may take an ocular inspection of a contested land to resolve questions of fact raised by the parties. NOTE: The court has an inherent power to order a view when there is a need to do so. Q: Is this mandatory? A: A view disrupts the usual trial process and is time- consuming. Hence, in almost all jurisdictions, trial judge is granted discretion to grant or refuse a request for a view. NOTE: The inspection may be made inside or outside the courtroom. An inspection or view outside the courtroom should be made in the presence of the parties or at least with previous notice to them. Chain of custody The third category of object evidence includes drop of blood or oil, drugs in powder form, fiber, grains of sand and similar objects. In this case, the proponent of the evidence must establish a chain of custody. The purpose is to guaranty the integrity of the physical evidence and to prevent the introduction of evidence which is not authentic but where the exhibit is positively identified the chain of custody of physical evidence is irrelevant. Since it is called a chain, there must be links to the chain. The links are the people who actually handled or had custody of the object. Each link must show how he received the object, how he handled it to prevent substitution and how it was transferred to another. Each must testify to make the EVIDENCE PRELIMS | J. GITO

foundation complete. This is the ideal way (though this is not absolutely required. There is a view that the prosecution is not required to elicit testimony from every custodian or from every person who had an opportunity to come in contact with the evidence sought to be admitted. As long as one of the chains testifies and his testimony negates the possibility of tampering and that the integrity of the evidence is preserved, his testimony alone is adequate to prove the chain of custody. In Lopez v. People, 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 the testimony about every link in the chain, 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. The witness would 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. The chain of custody rule is indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The rule also applies in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. Such dictates the level of strictness in the application of the chain of custody rule. A unique characteristic of narcotic substance is that they are not readily identifiable hence a more stringent standard than that applied to readily identifiable object is necessary. This standard entails a chain of custody of the item with sufficient completeness to render it improbable for the original item to be exchanged with another, contaminated or tampered with. More than just the fact of possession, the fact that the substance said to be illegally possessed is the very same substance offered in court as exhibit. If the object is not readily identifiable, a chain of custody must be shown. To avoid gaps in the chain of custody and prevent further evidentiary objections, ideally all the persons who handled the object should be called to the stand although courts no longer require this rigid process. Unless a specific provision of law or rule provides otherwise, the investigator need not testify that the process of sealing the evidence and the submission to the chemist were done in the presence of the accused or his representative. This is because of the presumption that official duty has been regularly performed (Sec. 3 (m), Rule 131). Chain of custody in drug cases Q: What is chain of custody? A: It means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of confiscation or seizure to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. It shall also include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition (People v. Obmiranis, G.R. No. 181492). Article II of R.A. No. 9165 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 which such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the DOJ, and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof (Sec. 1, par.1). Links in the Chain of Custody

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First, the seizure and marking of the confiscated drugs recovered from the accused presence of the accused or the person/s from which such items were confiscated/ representative or counsel/ media and DOJ/ elected public official

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• • •

Second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer Third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination Fourth, the turnover and submission of the marked illegal drug by the forensic chemist to the court (People vs. Kamad, 610 SCRA 295)

Note: A mere statement that the integrity and evidentiary value of the evidence is not enough. It must be accompanied by proof. Q: When will the non-compliance with the procedure shall not render void and invalid the seizure of and custody of drugs? A: 1. When such compliance was under justifiable grounds; and 2. Integrity and the evidentiary value of the seized are properly preserved by apprehending team. -

What is important is the preservation of the integrity and evidentiary value of the seized items, as the same may be utilized in the determination of the guilt or innocence of the accused. This is to remove unnecessary doubts as to the identity of the evidence. The dangerous drugs itself constitutes the very corpus delicti of the crime and the fact of its existence is vital to a judgment of conviction.

In People v. Del Monte (G.R. No. 179940), the issue if there is noncompliance with the law is not admissibility, but weight—evidentiary merit or probative value. DNA Evidence Q: What is the rule regarding DNA evidence? A: In Augustin v. CA (460 SCRA 315), the Court briefly sketched its past decisions on DNA testing which the Court initially considered as not as accurate and authoritative as the scientific forms of identification evidence such as fingerprints. However, in 2001, the SC showed signs of opening up to DNA evidence in Tijing v. CA (G.R. No. 125901), when it recognized the existence of facility and expertise in using DNA test for identification and parentage testing, in Tijing case, the SC held that eventually, courts should not hesitate to rule on the admissibility of DNA evidence. In the case People v. Vallejo (382 SCRA 192, 2002), the Court made a landmark decision. It is considered as the first real breakthrough of DNA as admissible and authoritative evidence in Philippine jurisprudence. Vallejo moved towards an open use of DNA evidence in deciding cases. Q: What are the rules or guidelines to be used by courts in assessing the probative value of DNA evidence? A: 1. How the samples were collected 2. How they were handled 3. The possibility of combination of the samples 4. The procedure followed in analyzing the samples 5. Whether the proper standards and procedure were followed in conducting the tests 6. The qualification of the analyst who conducted the test. Rule on DNA evidence (RDE) Rule on DNA Evidence (RDE) was issued by the Court in A.M. No. 06-11-5SC. Q: In what situations do RDE apply? A: 1. Criminal actions 2. Civil actions 3. Special proceedings Q: What is DNA? A: It refers to deoxyribonucleic acid which is the chain of molecules found in every nucleated cell of the body Q: What is DNA profile? A: It is the genetic information derived from DNA testing of biological samples obtained from a person where such biological sample is clearly identifiable as originating from that person. Q: What is DNA evidence? EVIDENCE PRELIMS | J. GITO

A: The totality of the DNA profiles, results and other genetic information directly generated from the DNA testing of biological samples. NOTE: It is a scientific fact that the totality of an individual’s DNA is unique for the individual, except for identical twins. Q: How may an order for a DNA testing be obtained? A: A person who has legal interest in the litigation may file an application before the appropriate court, at any time. Q: What are the requisites for the order? A: 1. A biological sample exists that has relevance to the case 2. The biological sample: a. Was not previously subjected to the DNA testing requested b. If it was previously subjected to DNA testing, the results may require confirmation for good reasons. 3. The DNA testing uses a scientifically valid technique 4. The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case 5. The existence of other factors, if any, which the court may consider as potentially affecting the accuracy and integrity of the DNA testing. Q: What may an order contain? A: 1. Take biological samples from any person or crime scene evidence 2. Impose reasonable conditions on the testing to protect the integrity of the biological sample and the liability of the test results. NOTE: The court may motu propio order a DNA testing. Q: Is a court order always required before undertaking a DNA testing? A: No. RDE allows a testing without a prior court if done before a suit or proceeding is commenced at the behest of any party including law enforcement agencies. Q: Is the order of the court granting a DNA testing appealable? A: No, it is immediately executor as provided by Sec. 5 of the RDE. Q: Is there an automatic admission of the DNA evidence obtained in the testing? A: None. The grant of the DNA testing application shall not be construed as an automatic admission into evidence of any competent of the DNA evidence that may be obtained as a result of the testing. This means that the court will still have to evaluate the probative value of the proposed evidence before its admission. Q: What are the matters to be considered for the determination of the probative value of the DNA evidence? A: 1. The chain of custody, including how the biological samples were collected, how they were handled, and the possibility of contamination of the samples. 2. The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and the compliance with the scientifically valid standards in conducting the tests. 3. The forensic DNA laboratory, including its accreditation and the qualification of the analyst who conducted the test; if the laboratory is not accredited, the court shall consider the relevant experience of the laboratory in forensic casework and its credibility shall be properly established 4. The reliability of the testing result. Q: If a person has already been convicted under a final and executor judgment, may he still avail of DNA testing? A: Yes. The test after his conviction is termed a “post- conviction.” It may be available to: a. The prosecution b. To the person conviction by final and executory judgment provided that the ff. requisites are present: 1. A biological sample exists 2. Such example is relevant to the case 3. The testing would probably result in the rehearsal of the judgment of conviction. Q: Is a court order required for a post DNA testing? CDR NOTES |

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A: No. It may be available without need of prior court order. Q: What remedy is available to the convict if the results of the post DNA testing are favorable to him? A: He may file a petition for a writ of habeas data in the court of origin. The court shall then conduct a hearing and in case the court finds that the petition is meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict, unless his detention is justified for a lawful cause. The rule also allows the petition to be filed either in the CA or the SC, or with any member of said courts. Q: Are the DNA profiles of a person open to public scrutiny? A: No, they are confidential. Q: To whom they may be released? A: 1. The person from whom the sample was taken 2. Lawyers representing parties in the case or action where the DNA evidence is offered and presented or sought to be offered and presented 3. Lawyers of private complainants in a criminal action 4. Duly authorized law enforcement agencies Other persons as determined by the Court. Q: May the person from whom the biological sample was taken request that the result be disclosed to the person designated in his request? A: Yes, but such request must be in writing and verified and filed with the court that allowed the DNA testing. Q: What is the duty of the Trial courts? A: They are mandated to preserve the DNA evidence in its totality, including all biological samples, DNA profiles and results or other genetic information obtained from DNA testing in accordance with the RDE. Paraffin tests Paraffin tests generally have been considered as inconclusive by the court because scientific experts occur in the view that paraffin tests have proved extremely unreliable in use. The test can only establish the presence or absence of nitrates or nitrites on the hand but the test alone cannot determine whether the source of the nitrates or nitrites was the discharge of the firearm. presence lang pero hindi niya ma-identify kung san galing

Effect of a negative result The argument that the absence or negative result of gunpowder nitrates from the paraffin test conducted shows an absence of physical evidence that one fired a gun, is untenable as it is possible for one to fire a gun and yet be negative as when the hands are washed before the test (People v. Cajumocan, 430 SCRA 311). Positive result The presence should be taken only as an indication of a possibility or even a probability but not of infallibility that a person has fired a gun, since nitrates are also found in substances other than gunpowder such as in explosives, fireworks, fertilizers and pharmaceuticals, tobacco and leguminous plants. Probative value of paraffin tests They are merely corroborative, neither proving nor disproving that a person did indeed fire a gun. Q: What factors may affect the results? A: Factors such as the wearing of gloves, perspiration of hands, wind direction, wind velocity, humidity, climate conditions, the length of the barrel of the firearm, the open or closed trigger guard of the firearm (People v. Buduhan, 2008). Polygraph tests (Lie detector tests) Polygraph test operates on the principle that stress causes physiological changes in the body which can be measured to indicate whether the subject of the examination is telling the truth. Sensors are attached to the subject so that the polygraph can mechanically record the subject’s physiological responses to a series of questions. Q: What is the probative value of polygraph tests? A: Courts uniformly reject the results of polygraph tests when offered in evidence for the purpose of establishing the guilt or innocence of the accused EVIDENCE PRELIMS | J. GITO

of a crime because it has not yet attained scientific acceptance as reliable and accurate means of ascertaining truth or deception. DOCUMENTARY EVIDENCE

Parol evidence if agreement is written.

Q: What is the scope of documentary evidence? A: Documents as evidence do not necessarily refer to writings. They may refer to any other material like objects as long as the material contains letters, words or numbers, figures, symbols or other modes of written expression and offered as proof of their contents. Q: What are the categories of documents as evidence? A: 1. Writings 2. Any other materials containing modes of written expressions Rule 130 Sec. 2.Documentary evidence. — Documents as evidence consist of writing or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents. (n)

Q: What are the examples under the first category? A: Written contracts and wills Q: What are the examples under the second category? A: Those which are not traditionally considered as writings but are actually objects but which contain modes of written expressions. NOTE: Being writings or materials containing modes of written expressions do not ipso facto make such materials documentary evidence. For such writings be deemed documentary, the same must be offered as proof of their contents. If offered for some other purpose, the writings or materials would not be deemed documentary evidence but merely object evidence. Q: What if a contract is presented in court to show that it exists or simply to establish its condition? A: It is not offered to prove its contents, therefore, it is not considered a documentary evidence but an object or real evidence. Q: Is the photocopy real (object) evidence or documentary evidence? A: It is a real (object) evidence. Although it is conceded that the bills contain letters, words or numbers and other modes of written expression, these facts alone do not make the bills documentary evidences. To be documentary evidence, the same must be offered as proof of their contents. The bills are obviously presented to show that money exchanged hands in the buy-bust operations and not prove what is written on the bills. Q: May a private document be offered and admitted in evidence both as documentary evidence and as object evidence? A: It depends on the purpose for which the document is offered. If offered to prove its existence, condition or for any other purpose other than the contents of a document, the same is considered as an object evidence. When it is offered as proof of its contents, the same is considered as a documentary evidence. The document may be offered for both purposes under the principle of multiple admissibility. BEST EVIDENCE RULE issue: content of the documents Despite the word “best”, the rule does not proclaim itself as the highest and most reliable evidence in the hierarchy of evidence. The word best has nothing to do with the degree of its probative value in relation to other types of evidentiary rules. It does not mean “most superior” evidence. More accurately, it is the original document, or the primary evidence rule. It is not intended to mean that a weaker evidence be substituted by a stronger evidence. The only actual rule that such term denotes is the rule requiring that the original of a writing must, as a general rule, be produced. Rationale: The copy of the original is not as reliable as the latter because of possible -

Rule 130. Sec. 3. Original document must be produced; exceptions. — When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: (a)

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

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(b) (c) (d)

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When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and When the original is a public record in the custody of a public officer or is recorded in a public office. (2a)

There is no reason to apply this rule when the issue does not involve the contents of a writing. The rule will come into play only when the subject of inquiry is the contents of a document. The rule cannot be invoked unless the contents of a writing is the subject of judicial inquiry, in which case, the best evidence is the original writing itself.

Problem: At the trial for violation of RA 9165, the prosecution presented as evidence of selling drugs, the xerox copy of the marked money used in buying shabu. The defense objected to the presentation of the xerox copy of the marked money for violation of the best evidence rule. If you were the judge, how would you rule on the objection? A: I will overrule the objection. Best evidence rule applies when a document is offered to prove the contents thereof. Here the the marked money is not offered as documentary evidence but as an object evidence. It was offered to prove that selling of drugs occurred. Thus, best evidence rule does not apply. Illustrative applications of the best evidence rule: The rule finds no application to a case where a party never disputed the terms and conditions of the promissory note, leaving the court to conclude that as far as the parties are concerned, the wordings or the contents of the note are clear enough and leave no room for disagreement. The defense of lack of consideration and that the signature in the note was made in the personal capacity of the respondent are defenses which do not question the precise wordings of the promissory note which should have paved the way for the application of the “best evidence rule.” The Consolidated Bank and Trust Corporation v. Del Monte Motor Works, Inc. (465 SCRA 117) personal capacity lang, not the contents or terms

NOTE: Where the issue is the execution or existence of the document or other circumstances surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible. When the subject of the inquiry is the contents of the document, no evidence shall be admissible other than the original thereof (Magdayao v. People, 463 SCRA 677). Any substitutionary evidence likewise admissible without need to account for the original (Chua Gaw v. Chua, 2008). Reason for the adoption of the best evidence rule It is to prevent fraud or mistake in the proof of the contents of a writing. Q: What are the 2 requisites for this rule to apply? A: 1. The subject matter must involve a document; and 2. The subject of the inquiry is the contents of the document. Thus, where the content of a document is not the issue, the rule cannot be invoked and more so when the evidence does not involve a document. The best evidence rule applies only when the subject inquiry is the contents of a document. It 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. Where the subject inquiry is to prove some fact like its existence, or the size of the matter on which it is written, the writing is not a documentary evidence but a mere object evidence. The best evidence rule does not apply to an object evidence. Thus, the original need not be presented. The existence or condition of that writing may be proved by any other evidence like oral testimony. NOTE: The subject of inquiry is the contents of a writing, not the truth thereof. Where the truth is in issue, the hearsay rule will now be invoked. EVIDENCE PRELIMS | J. GITO

Q: Is the photocopy admissible in evidence? A: The photocopy of the bills being object evidence, is admissible in evidence without violation of the best evidence rule. The rule applies only to documentary evidence and not to object evidence. When document is merely collaterally in issue 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. If a witness testifies that the victim was writing a letter when he was shot by the accused, the judge will rule against the party who insists on the presentation of the letter because the letter is not the subject of an important issue in the case and thus is merely collateral. Reason for the Best Evidence Rule para hindi ma-out of context Primarily, it is the need to present to the court the exact words of a writing where a slight variation of words may mean a great difference in rights. Secondly, it is the prevention and detection of fraud. It is to avoid unintentional or intentional mistaken transmissions of the contents of a document through the introduction of selected portions of a writing to which the adverse party has no full access. It is also to prevent erroneous interpretations or distortions of a writing, an objection based on this rule prevents a party from proving the contents of a writing by a copy thereof or by oral testimony if the original writing itself is available. As long as the original evidence can be had, the court should not receive in evidence that which is substitutionary in nature, o such as photocopies, in the absence of any clear showing that the original writing has been lost or destroyed or cannot be produced in court. o Such photocopies must be disregarded, being inadmissible evidence and barren of probative weight. Waiver of the Rule Although the marriage certificate, license, and other pieces of documentary evidence were only photocopies, the fact that these have been examined and admitted by the trial court, with no objections having been made a to their authenticity and due execution, means that these documents are deemed sufficient proof of the facts contained therein. Sy v. CA (330 SCRA 550) How to apply the Best evidence rule. First, determine the matter inquired into. The procedural compliance of the rule requires the presentation of the original document, and not a copy of that document. So long as the original document is available, no other evidence can be substituted for the original. Q: What if the original cannot be presented in evidence? A: The second step will now come into play. First, find an adequate legal excuse for the failure to present the original; and second, present a secondary evidence sanctioned by the Rules of Court. Present the original, except when you can justify its unavailability in the manner provided for by the Rules of Court. Excuses for not presenting the original document/ Exceptions to best evidence rule These instances are those mentioned in Sec. 3, Rule 30. (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and (d) When the original is a public record in the custody of a public officer or is recorded in a public office. Loss, destruction or unavailability of the original This exception does not only cover loss or destruction but also other reasons for the failure to produce the original in court even if the original is not lost or destroyed, as when the original is beyond the territorial jurisdiction of the court. The exception also applies where the original consists of inscriptions on immovable objects and monuments such as tombstones because they cannot be produced in court. CDR NOTES |

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Rule 130, Sec. 5. When original document is unavailable. — When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. (4a)

How to introduce secondary evidence if the original is lost. 1. The offeror must prove the execution and existence of the original document; 2. The offeror must show cause of its unavailability; and 3. The offeror must show that the unavailability was not due to its bad faith. The correct order of proof 1. Existence; 2. Execution; 3. Loss; and 4. Contents The due execution and authenticity of the document may be proved by anyone who saw the document executed or written; or by evidence of the genuineness of the signature or handwriting of the maker. The burden of proof in establishing loss or destruction of the original is on the proponent of the secondary evidence. The loss of the original need not be shown to be beyond all possibility of mistake. A reasonable probability of its loss is sufficient like by showing that there was a bona fide and diligent but fruitless search for the document (Paylago v. Jarabe (22 SCRA 1247).

NOTE: The voluminous records must be made accessible to the adverse party so that the correctness of the summary of the voluminous records may be tested on cross-examination (Compania Maritima v. Allied Free Workers Union, 77 SCRA 24). Original document is a public record How to introduce secondary evidence when the original is a public record. RD (CTC of TCT) Public records are generally not to be removed from the places where they are recorded and kept. Thus, the proof of the contents may be done by secondary evidence. This evidence is a certified true copy of the original. This certified copy is to be issued by the public officer in custody of the public records. Q: What is the effect of not offering a document in evidence after calling for its production and inspection? A: No unfavorable inference may be drawn from such failure. This is because under the law, a party who calls for the production of a document is not required to offer it. Rule 130. Sec. 8. Party who calls for document not bound to offer it. — A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence. (6a)

Meaning of original (Rule 130) Sec. 4.Original of document. — (a) The original of the document is one the contents of which are the subject of inquiry. (b) When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. (c) When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. (3a)

Order of the presentation of secondary evidence by the prosecution. 1. A copy of the original 2. A recital of the contents of the contents of the document in some authentic document 3. By the testimony of witnesses NOTE: The hierarchy of preferred secondary evidence must be strictly followed. Secondary evidence It refers to evidence other than the original instrument or document itself (EDSA Shangri-La Hotel v. BF Corp., 2008). The presentation or the offer of the original be waived 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. But even if admitted as primary evidence, its probative value must still meet the various tests by which its reliability is to be determined. Original is in the Custody or control of the adverse party How to introduce secondary evidence when the original is in the custody of the adverse party. 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 4. That the adverse party failed to produce the original document despite the reasonable notice.

NOTE: An original, under the layman’s concept, is the first one written and from which mere copies are made, transcribed, or imitated. Thus, there can only be one original. This is not however so. When an entry is repeated in the regular course of business, one being copied from another at or near time of transaction, all the entries are equally regarded as originals. Requisites to be considered as originals basta signed by the parties 1. There must be entries made and repeated in the course of business 2. The entries must be at or near the time of the transaction. -

Thus, 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. So are writings with identical contents made by printing, mimeographing, lithography and other similar methods executed at the same time. Thus, each newspaper sold in the stand is an original in itself.

Q: What if carbon sheets are inserted between two or more sheets of paper, and the signature on the first sheet being reproduced in the sheets beneath by the same stroke of the pen or writing medium? A: All sheets are deemed as originals.

The notice may be in the form of a motion for the production of the original, or made in open court in the presence of the adverse party, or via a subpoena duces tecum, provided that the party in custody of the original has sufficient time to produce the same.

NOTE: 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 to be produced. In such case, each is deemed an original. If several copies of a document are made at the same time by inserting in each page a carbon paper and only one of them is signed, the signed copy is the original and the others are only copies.

When the original consists of numerous accounts How to introduce secondary evidence when the original consists or numerous accounts. 1. If the original consists of numerous accounts or other documents 2. They cannot be examined in court without great loss of time 3. The fact sough to be established from them is only the general result of the whole.

Q: Which is the original in case of telegraph company who failed to transmit a message? A: The original is the message submitted to the company for transmission. But if the suit is for damages by sender against the company because of delay, the original would be the message as received by the recipient. In an action to collect the promissory note, the original is one typed and signed by both parties and which was lost.

Q: What is the reason for the exceptions? A: The reason lies in the determination by the court that production of the original writings and their examination in court would result in great loss of time considering that the evidence desired from the voluminous accounts is only the general result of the whole like a summary of accounts.

Q: Can the photocopies in the hands of the parties be considered as duplicate originals? A: No. They cannot be deemed as having been made at the same time with the original because they were not signed unlike the original.

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PAROL EVIDENCE RULE EVIDENCE PRELIMS | J. GITO

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evidence in wrting (agreements)

Among the various evidentiary rules, it is the parol evidence rule that has direct application to the law on contracts. It applies only to contracts which the parties have decided to set forth in writing, i.e. as Sec. 9 of Rule 130 provides:

not pay. Carla sued Lito. Lito argued that that Carla extended the maturity date of the loan to Jan. 4, 2019. So the loan has not yet matured. sold the land to Carla for 1M. Carla objected citing parol evidence rule.

Rule 130. Sec. 9.Evidence of written agreements. — When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement.

Lito may introduced terms agreed upon by the parties or successor in interest after the execution of the written agreement.

However, a party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. The term "agreement" includes wills. (7a) Q: What if the agreement is oral? A: It does not apply. Applicability: 1. Applies only when there is a written contract 2. Applies only to parties and their successor-in-interest 3. It also applies to will NOTE: The contract does not define a contract as a document, a deed or an instrument. The document or the deed or instrument are merely the tangible evidences of a contract. It is the meeting of the minds between the parties that constitutes the contract. Application of the parol evidence Q: When a written agreement is entered, any extraneous or parol evidence will be inadmissible for what purposes? A: 1. To modify 2. To explain 3. To add to the terms of the written agreement. Illustration: 1. Lito executed a will wherein he bequeathed the amount of 1 million pesos to Carla Rubio. Lito died. When his will was probated and later on about to be executed, it turned out that there were three (3) Carla Rubios’ who are all friends of Lito. Assuming that this fact was put as an issue, may parol evidence be allowed to clarify the ambuguit? Yes. Because there is intrinsic ambiguity in the will. Under the rules, will is included in the word “agreement” 2.

Lito sold the land to Carla for the amount of 200,000. The value of the land is 20M pesos. But, what the parties actually agreed was Lito would borrow from Carla the amount of 200,000 and use the land as security. In an action to recover the parcel of land, may Lito introduce evidence of the true agreement of the parties. YES. Because of the failure of the written agreement to express the true intent of the parties thereto.

3.

Lito sold the land to Carla for 1M. They executed a deed of sale. They both signed the same. However, Carla has no cash of 1M. So she told Lito that she would just go to the bank to withdraw. Carla left Lito together with the DOS and the title to the land. Unknown to Lito, Carla went to the RD to have the sale registered. In an action for cancellation of sale, can Lito introduce evidence to prove that there is no consideration. YES. Because the issue is the validity of the instrument.

4.

Lito borrowed money from Carla evidenced by PN which is due and demandable on Jan. 4, 2017. Come Jan. 4, 2017, Lito did

EVIDENCE PRELIMS | J. GITO

TAKE NOTE! A party must put them as ISSUE in his pleading Problem: A sells his house to B for 1M. They executed a DOS. A refused to vacate thereafter. B filed a recovery of possession of real property. A contended that B agreed to lease out the same property to A. B objects to the presentation of evidence to prove lease contract on the ground of parol evidence rule? Rule on the objection. A: Objection overruled. Parol evidence is not applicable. What is sought to prove here is the oral contract of lease. Purpose of the parol evidence rule It forbids any addition to, or contradiction of, the terms of a written agreement by testimony or other evidence purporting to show that different terms were agreed upon by the parties, varying the purport of the written contract. Whatever is not found in the writing is understood to have been waived and abandoned (SeaOil Petroleum Corp. v. Autocorp Group, 2008; Estrada v. Ramos, 468 SCRA 597). In general, the parol evidence rule is designed to give certainty to written transactions, to preserve the reliability and to protect the sanctity of written agreements. NOTE: Not all writings will trigger the application of the parol evidence rule. That writing must embody an agreement. Q: Should the writing that embodies the agreement of the parties be in a particular form? A: No, it only makes reference to writing, not a public writing or private writing. Application of the Rule only to parties and their successors- in-interest Only the parties and successors-in-interest are bound by the parol evidence rule. The rule that the terms of an agreement are to be proven only by the contents of the writing itself refers to suits between parties to the contract and their successors in interest. The rule does not bind suits involving strangers to the contract. Application of the Rule to Wills The parol evidence rule applies to contractual obligations. But, it also includes wills. There can therefore, be no evidence of the terms of the will other than the contents of the will itself. An express trust concerning immovable or any interest therein may not be proved by parol evidence. When and how to introduce parol evidence XPNs: A party may present evidence to modify, explain, or add to the terms of the written agreement: 1. An intrinsic ambiguity, mistake, or imperfection in the written agreement 2. The failure of the written agreement to express the true intent and agreement of the parties thereto. 3. The validity of the written agreement 4. The existence of other terms agreed to by the parties or their successors-ininterest after the execution of the written agreement. Q: What do you mean by introducing parol evidence? A: It means offering extrinsic or extraneous evidence that would modify, explain or add to the terms of the written agreement but parol evidence may only be allowed of any of the matters mentioned above is put in issue in the pleadings. Otherwise, parol evidence cannot be introduced. Issues which should be put before the amendments can be introduced. 1. Mistake or imperfection in the writing 2. The failure to express the true agreement of the parties and the validity of the agreement. It is not the province of the courts to amend a contract by construction, or to make a new contract for the parties by interjecting material stipulations, CDR NOTES |

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Evidence aliunde - another source outside

or even to read into the contract words which it does not contain. It is only where a party puts in issue in the pleadings the failure of the written agreement to express the true intent of the parties thereto said party may present evidence to modify, explain or add to the terms of the written agreement. To justify the introduction of parol evidence a party must establish that an alleged agreement failed to express the true intent of the parties. Until and unless this has been successfully carried out, there is no right in esse to speak of. Accordingly, parol evidence cannot serve the purpose of incorporating into the contract additional contemporaneous conditions which are not mentioned at all in writing unless there has been fraud or mistake. For parol evidence to be admissible to vary the terms of the written agreement, the mistake or imperfection thereof or its failure to express the true agreement of the parties should be put in issue by the pleadings. Accordingly, when the terms of an agreement have been reduced to writing, it is considered a containing all the terms agreed upon and there can be, between the parties and their successors-in-interest, no evidence of such other terms other than the contents of the written agreement. Pilipinas Bank v. CA (G.R. No. 141060) Prior, contemporaneous and subsequent agreements Traditional rules limit the inadmissibility of parol evidence or extrinsic evidence to prior or contemporaneous stipulations. o Hence, if a written agreement was executed by the parties on Dec.22, 2008, agreements before that date or even on the same date which modify, alter, or contradict the stipulations written into the Dec.22 agreement are not admissible since these constitute parol evidence. On the other hand, a January 5 the agreement would be admissible because subsequent agreements were not barred by parol evidence rule. The parties to a written agreement may show written agreement, they have entered into an oral contract tending to waive, dissolve, or annul the former agreement, or in any manner to add to, or subtract from or vary or qualify the term thereof. The rule prohibiting the admission of evidence aliunde or extrinsic evidence did not prohibit proof of an agreement entered into after the written instrument was executed, notwithstanding that such agreement may have the effect of adding to, changing or modifying the written agreement of the parties. Thus, parol evidence on subsequent agreements may be admitted. Intrinsic ambiguity in the writing An instance when evidence aliunde or parol evidence may be allowed to modify, explain or even add to the written agreement is when an intrinsic ambiguity exists in the written agreement. Yet, mere existence of an intrinsic ambiguity will not authorize the admission of parol evidence. It is important that the intrinsic ambiguity be put in issue in the party’s pleading. It is the raising of the issue of intrinsic ambiguity which will authorize the introduction of parol evidence. Intrinsic or latent ambiguity. It is one which is not apparent on the face of the document but which lies in the person or thing that is the subject of the document or deed. Ambiguity is intrinsic or latent when the language of the writing is clear and intelligible and suggests but a single meaning but some matter extraneous to the writing creates the ambiguity. In this type of ambiguity, the document is clear on its face but matters extraneous to the agreement create the ambiguity. NOTE: Where the ambiguity is patent or extrinsic, parol evidence will not be admitted even if the same is put in issue in the pleading. Extrinsic or patent ambiguity It is that which appears on the very face of the instrument, and arises from the defective, obscure, or insensible language used. Parol evidence is not admissible to explain the ambiguity otherwise the court would be creating instead of construing a contract. NOTE: The rule only allows parol evidence in the case of an intrinsic or latent ambiguity. Mistake or imperfection in the writing and failure to express the true agreement of the parties EVIDENCE PRELIMS | J. GITO

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The admission of evidence aliunde may be justified where there is a mistake or imperfection in the written agreement. This mistake or imperfection must be put in issue in the pleading by the party who wants to prove the defect in the writing. Failure of the writing to express the true agreement of the parties is another ground for admitting parol evidence as long as the issue is raised in the pleadings.

Mistake or imperfection in writing This only means that despite the meeting of the minds, the true agreement of the parties is not reflected in the instrument. Q: What are the other reasons which made the instrument unable to express the true intention of the parties? A: 1. Fraud 2. Inequitable conduct 3. Accident 4. Ignorance 5. lack of skill 6. negligence 7. bad faith on the part of the person drafting the instrument (Arts. 1359 and 1364 of the NCC) Q: What is the remedy if there is a meeting of minds of the parties but their true intention is not expressed in the instrument because of the above-mentioned causes? A: One of the parties may ask for the reformation of the instrument (Art. 1359, NCC). Q: What if there is no meeting of minds? A: The proper remedy is not reformation of the instrument but an action for annulment (Art. 1359, NCC). Q: What is an action for reformation? A: It presupposes that there is nothing wrong with the contract itself because there is a meeting of minds of the parties. Art. 1359 does not in fact refer to a reformation of the contract but of the instrument. Examples: 1. The parties have agreed on the size of the land subject of the sale. By an act of fraud, a smaller area is indicated in the deed. 2. An instrument may be reformed if the instrument does not express the true intention of the parties because of lack of skill of the person drafting the instrument 3. If the parties agree upon mortgage or pledge of property, but the instrument states that the property is sold absolutely or with the right to repurchase, reformation is proper Reformation of the instrument cannot be brought to reform certain things. Examples: 1. Simple donations inter vivos wherein no condition is imposed 2. Wills 3. When the agreement is void Best Evidence Rule vs. Parol Evidence Rule. BEST EVIDENCE RULE Establishes a preference for the original document over a secondary evidence thereof

PAROL EVIDENCE RULE Not concerned with the primacy of evidence but presupposes that the original is available

Precludes the admission of secondary evidence if the original document is available

Precludes the admission of other evidence to prove the terms of a document other than the contents of the document itself for the purpose of varying the terms of the writing

Can be invoked by any litigant to an action whether or not said litigant is party to the document involved Applies to all forms of writing

Can be invoked only by the parties to the document and their successors-in-interest Applies to written agreements (contracts) CDR NOTES |

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Waiver of Parol Evidence Rule 1. by failure to invoke the benefits of the rule 2. by failure to object to the introduction of evidence aliunde. Probative value Admissibility is not the equivalent of probative value or credibility. CHAPTER 5 • • •

TESTIMONIAL EVIDENCE Evidence is elicited from the mouth of the witness Sometimes called as “viva voce” evidence which literally means “living voice” or by “word of mouth” The person who gives the testimony is called a witness

Presumption in favor of competence of a witness • A person who takes the stand as a witness is presumed to be qualified to testify. • A party who desires to question the competence of a witness must do so by making an objection as soon as the facts tending to show incompetency are apparent. A.

QUALIFICATION OF A WITNESS

Section 20. Witnesses; their qualifications. — Except as provided in the next succeeding section, All persons who can perceive and perceiving, can make their known perception to others, may be witnesses. Ex. • Absurd to ask blind man what he saw or a deaf man what he heard FACTORS NOT AFFECTING THE COMPETENCY OF A WITNESS 1) Religious or political belie 2) Interest in the outcome of the case 3) Conviction of a crime unless otherwise provided by law shall not be ground for disqualification Ex. “Conviction of a crime unless otherwise provided by law” • Those who have been convicted of falsification of a document, perjury or false testimony are disqualified from being witnesses at a will (Art. 821, NCC). As a consequence, these persons may not also testify as witnesses in the probate of a will where the subject of the testimony is the very fact of execution of the will in their presence. HE MUST TAKE AN OATH OR AFFIRMATION. • An oath or affirmation is necessary for the witness to recognize the duty to tell the truth REQUIREMENT: • Must have personal knowledge of the facts surrounding the subject matter of his testimony If cannot perceive or even if he can perceive he cannot remember what he has perceived, he is incompetent to testify.

FACTORS INVOLVING THE ABILITY TO MAKE KNOWN THE PERCEPTION OF THE WITNESS TO THE COURT? 1) Ability to remember what has been perceived; and 2) The ability to communicate the remembered perception.

a)

Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others;

b)

Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully.

REQUISITES – to disqualify a witness by reason of mental incapacity 1) The person must be incapable of intelligently making known their perception to others 2)

His incapacity must exist at the time of his production for examination.

RULE ON EXAMINATION OF CHILD WITNESS WHO IS A CHILD WITNESS? • Person below 18 years of age • A child includes one over 18 years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of physical or mental disability or condition (Sec. 4 (a), RECW, A.M. 004-07-SC). PRESUMPTION OF COMPETENCY • Every child is presumed qualified to testify. • To rebut the presumption, the burden of proof lies on the party challenging his competence. • If the court finds substantial doubt exist regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, the court shall conduct a competency examination. WHEN MAY THE COURT ORDER THAT THE TESTIMONY OF A CHILD BE TAKEN BY LIVE-LINK TELEVISION? • If there is a likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. During marriage, bawal magtestify. After pwede na. Then dapat valid marriage. Kahit kelan mo pa nakuha ung info.

SEC. 22 – DISQUALIFICATION BY MARRIAGE aka Marital Disqualification Rule During their marriage, neither the husband nor the wife may testify for or against the other • without the consent of the affected spouse, EXCEPT • in a civil case by one against the other, or • in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. NOTE: The prohibition extends not only to a testimony adverse to the spouse but also in favor. It also extends both criminal and civil cases because the rule does not distinguish. What is the important requisite to claim this privilege? • It is essential that they be validly married. It requires not only a valid marriage but the existence of that valid marriage at the moment the witness-spouse gives the testimony. Does not apply to illicit cohabitation? – No. • The prohibited testimony is one that is given or offerd during the existence of the marriage. Thus, it no longer applies after the marriage is dissolved.

SEC. 21 – DISQUALIFICATION BY REASON OF MENTAL INCAPACITY OR IMMATURITY

Should the facts subject of the testimony occurred or came to the knowledge of the witness before the marriage? • It does not matter if the facts subject of the testimony occurred or came to the knowledge of the witness before the marriage. The affected spouse may still invoke the rule by objecting to the testimony as long as the testimony is offered during the marriage.

The following persons cannot be witnesses:

Q: May a spouse testify in a trial where the other spouse is a co- accused?

B.

DISQUALIFICATION OF A WITNESS

EVIDENCE PRELIMS | J. GITO

CDR NOTES |

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ANSWER: Yes, except as against her husband.

1)

May a spouse testify in a trial against her estranged husband?

2)

ANSWER: Yes. • When the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based on such harmony and tranquility fails. • In such case, identity of interests disappears and the consequent danger of perjury based on the identity is non-existent

3)

ILLUSTRATIONS: Q: Before the marriage of H and W, W witnessed H killing Y. W did not report the incident to the police. Later, H and W got married. They had falling out. Consequently, W reported the incident she witnessed when they were still sweethearts. • May the prosecution present W as a witness in a murder case filed against H? • Supposed W was called to testify after their marriage had been annulled, would your answer be the same? ANSWER: 1) Over the objection of H, the prosecution may not call W to testify against H. To call W to testify against H while their marriage is still would violate the marital disqualification rule. 2) My answer would not be the same. Since the marriage is not anymore existing, the marital disqualification rule would not apply. Q: W filed a collection suit against the father of H. The father of the H called H to testify against the W. W objected. Rule on the objection. ANSWER: • The husband is barred to testify against wife if the latter objects. It is not a case by one spouse against the other but between a spouse and the parent of the other.

SEC. 23 – DISQUALIFICATION BY REASON OF DEATH OR INSANITY OF ADVERSE PARTY aka Dead Man’s Statute or Survivorship Disqualification Rule WHO: (PLAINTIFF) *Persons prohibited to testify • Parties or assignors of parties to a case, or • persons in whose behalf a case is prosecuted, AGAINST WHOM: (DEFENDANT) • Against an executor or administrator or other representative of a deceased person, or • Against a person of unsound mind, WHEN: • upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before • the death of such deceased person or before such person became of unsound mind. ONLY APPLIES TO: • civil case or • special proceeding over the estate of the deceased or insane person. WHO ENTITLED TO INVOKE DEAD MAN’S STATUTE? • DEFENDANT • The executor, administrator and any other representative of a deceased person • By a person of unsound mind in claim against him NOT APPLICABLE TO INVOKE • If executor or administrator/ person of unsound mind is the PLAINTIFF ELEMENTS FOR APPLICABILITY EVIDENCE PRELIMS | J. GITO

4)

The suit is upon a claim by the plaintiff against the estate of a deceased or person of unsound mind. The defendant in the case is the executor or administrator or representative of the deceased or person of unsound mind The witness is the plaintiff, or an assignor of the plaintiff, or person in whose behalf, the case is prosecuted. The subject of testimony is as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind.

Ex. A borrowed from B. A died. B claims against the executor. Executor says: “I cannot pay. I am not calling you a liar but I cannot verify the truth of your claim since B is dead.” What is the effect of death of B? • A is rendered incompetent to testify as to the transaction that he had with the dead man. • Because of the possibility that his claim is fraudulent. WHO ARE PROHIBITED TO TESTIFY? • The plaintiff who has a claim against the estate of the deceased: parties, assignor of parties, person in whose behalf the case is prosecuted. • Thus, if the administrator is the plaintiff, the rule does not apply. NOTE: A disinterested witness may be allowed to testify since not within the prohibition (Ex. Secretary testifies the transaction) WHAT IS THE NATURE OF THE CASE? • “Upon a claim or demand against the estate of the deceased person or unsound mind” HOW WILL THE RULE BE APPLIED? 1) Determine first who the defendant is. He is the executor or administrator or other representative of a deceased person, or against a person of unsound mind. 2)

The rule will not apply if the abovementioned is of unsound mind

3)

The rule contemplates a suit against the estate, its executor or administrator not a suit filed by the administrator or executor of the estate.

4)

When a counterclaim set up by the executor or administrator of the estate, the case is removed from the operation of the dead man’s statute.

5)

The case should be one upon a claim or demand against the estate of such deceased person or against such person of unsound mind The rule does not apply when the action brought is not against the estate or not upon a claim or demand against the estate.

WHO ARE THESE PERSONS ENUMERATED BY THE LAW? • These are the persons who had previous dealings with the deceased or the person of unsound mind. • It does not prohibit a testimony by a mere witness to the transaction. Thus, offering a disinterested witness is not a transgression of the rule since the prohibition extends only to the party or his assignor or the person in whose behalf the case is prosecuted. TO WHAT MATTER DOES THE INCOMPETENCY IS IMPOSED UPON THE WITNESS?

• • •

On any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. Hence, if the subject of the testimony is on some other matter, the witness may testify on such matter as when the subject of the testimony is on a fact which transpired after the death of such person. Thus, a testimony favorable to the estate or to the insane person is not barred since the rule is designed to protect the interest of the estate or to the insane person.

ILLUSTRATIONS: CDR NOTES |

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Bawal lang naman siya magtestify, pero kung may ibang witness. Okay lang.

Q: A borrowed 2M pesos from B. 2 weeks thereafter A died. In the settlement of estate proceeding of the estate of A, B is claiming the amount of 2M from the estate of A through the latter’s administrator. • During the presentation of evidence, B was called to testify on their supposed agreement. The executor objected to the presentation of B. Will the objection prosper? ANSWER: • Yes, the objection will prosper. • All the elements of Dead Man Statute are present. The suit is upon a claim against the estate of the deceased. The defendant is the administrator. The witness is the plaintiff. The testimony is on any matter occurring during the lifetime of the deceased. Q: Supposing in the given problem, B executed an SPA in favor of D to file a claim against the estate of A through the latter’s administrator. D was called to testify to substantiate the claim. The administrator of A objected to the presentation of D. Will the objection prosper? ANSWER: • No. the objection will not prosper. • Because in this case, D is not prohibited to testify. He is not the plaintiff, nor assignor of the plaintiff or a person in whose behalf the case is prosecuted. He is just agent of the plaintiff. B ang defendant dito.

Q: Suppose that B is indebted to A in the amount of 3M. The administrator of A filed a collection suit against B. B denied the claim saying that no such transaction occurred. B presented himself as a witness? His presentation was objected. Rule on the objection. ANSWER: • Objection overruled. • The suit is not a claim against the estate of deceased person. Further, the suit was filed by the administrator against B (Sunga-Chan vs. Chua, 363 SCRA 249). Q: Suppose that B is indebted to A in the amount of 3M. The administrator of A filed a collection suit against B. B filed a counterclaim claiming that A borrowed the amount of 2M from B during A’s lifetime. B presented himself as a witness to prove the counterclaim? His presentation was objected. Rule on the objection. ANSWER: • Objection sustained. A counterclaim is a claim against the estate of the deceased as represented by the Administrator. DISQUALIFICATION BY REASON OF PRIVILEGE COMMUNICATION MARITAL PRIVILEGE COMMUNICATION The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. (Sec. 24(a), Rule 130) ELEMENTS FOR APPLICABILITY 1) There must be a valid marriage between the husband and wife 2)

There is a communication received in confidence by one from the other.

3)

The confidential information was received during marriage.

When is information considered confidential? GR: is that communications between spouses is presumed confidential unless shown otherwise. • Communications made in the presence of third person are not confidential unless the third person may be considered as agent of the spouses. Who is covered by the disqualification? • Only spouses are covered. Third person are not. EVIDENCE PRELIMS | J. GITO

ILLUSTRATIONS: Q: H and W were sweethearts. H confided something to W and told the latter not to tell the same to anyone. Later, they got married. • After several years, their Marriage got annulled. • It turned out that what was told by H to W was that he was the one who bombed the hotel. • In the prosecution for terrorism against, the prosecution called W to the witness stand. H objection on the ground of “marital privilege communication”. Rule on the objection. ANSWER: • Objection should be denied. • The confidential information marriage.

was

not received during

Q: Supposing the information was received by W from H during their marriage, but W was called to testify after their marriage was annulled. Will W be allowed to testify over the objection of H? ANSWER: • No. W should not be allowed to testify against H, if the latter objects. • The wife who received the information in confidence may not be called to testify thereon even after marriage. MARITAL DISQUALIFICATION RULE vs MARITAL PRIVILEGED COMMUNICATION RULE Either spouse

Sec. 22 Marital Disqualification Rule Sec. 22 includes facts, occurrences or information even prior to the marriage unlike Sec.24(a) which applies only to confidential information during the marriage. The Sec 24(a) is broader because it prevents testimony for or against the spouse on any fact and not merely disclosure of confidential information. Rule 22 on the other hand, can no longer be invoked once marriage is dissolved. It may be asserted only during the marriage.

Sec. 22 requires that the spouse for or against whom the testimony is offered is a party to the action. Under Sec. 22, the prohibition is a testimony for or against the other.

Sec. 24(a) Marital Privilege Communication Rule Sec. 24(a) applies only to testimonies of a confidential nature received by 1 spouse from the other during the marriage and obviously does not include acts merely observed by 1 spouse unless such acts are intended as a means of conveying communication by one to the other. When sec. 24(a) applies, the spouse affected by the disclosure of the information or testimony may object even after the dissolution of the marriage. The privilege does not cease just because the marriage has ended. This is not required Sec. 24(a) and applies regardless of whether the spouses are parties or not. Sec. 24(a) prohibits the examination of a spouse as to matters received in confidence by one from the other during the marriage.

ATTORNEY- CLIENT PRIVILEGE Dito ung attorney lang

An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity (Sec. 24(b), Rule 130) CDR NOTES |

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ELEMENTS FOR APPLICABILITY 1) There must be communication made by client to the attorney, or advice given by the lawyer to his client 2)

The communication and advice must be given in confidence

3)

The communication or advice must be in the course of the professional employment or with the view to professional employment

Is it necessary that there should be lawyer-client relationship before the rule may be applied? • NO. The rules provides that “communications or advice given with the view to professional employment Does the disqualification apply only to lawyer? • NO. • The rule also applies to an attorney's secretary, stenographer, or clerk who received the information in their capacity as such. Will the death of the client extinguish the privilege? • The protection of the privilege will generally survive the death of the client. Yet, where there is an attack on the validity of the will, communications made to the attorney on the drawing of the will, while confidential during the lifetime of the client are not intended to require secrecy after his death. PHYSICIAN – PATIENT PRIVILEGE 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 (Sec. 24(c), Rule 130) What are the information that may not be disclosed? • Any advice given to the client • Any treatment given to the client • Any information acquired in attending such patient provided that the advice, treatment or information was made or acquired in a professional capacity • The information sought to be disclosed would tend to blacken the reputation of patient PRIEST- PENITENT PRIVILEGE A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs. (Sec. 24(d), Rule 130) PRIVILEGED COMMUNICATION TO PUBLIC OFFICERS A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure.(Sec. 24(e), Rule 130) EXECUTIVE PRIVILEGE; PRESIDENTIAL COMMUNICATIONS PRIVILEGE It is the power of the government to withhold information from the public, the courts, and the Congress. NOTE: The court acknowledged that there are certain types of information which the government may withhold from the public like military, diplomatic, and national security secrets. WHAT IS THE BASIS OF THE PRIVILEGE? • It is rules that the President and those who assist him must be free to explore alternatives in the process of shaping policies and making EVIDENCE PRELIMS | J. GITO

decisions and to do so in a way many would be unwilling to express except privately. WHAT ARE THE MATTERS INVOLVING STATE SECRETS? 1) Military 2) Diplomatic 3) Other national security matters Testimonial Privilege PARENTAL AND FILIAL PRIVILEGE Section 25, Rule 130 • Parental and filial privilege. — No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. Parental privilege – A parent cannot be compelled to testify against his child or direct descendants Filial privilege – A child may not be compelled to testify against his parent or direct ascendants ADMISSION Section 26, Rule 130. Admission of a party. — The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. CONFESSION Section 33. Confession. — The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him. ADMISSION It is a voluntary acknowledgment made by a party of the existence of truth of a certain facts.

CONFESSION Confession is an acknowledgment of guilt.

It includes confession

It is a specific type of admission.

May be express or implied.

Always express

EFFECT The act, declaration or omission of a party as to a relevant fact may be given in evidence against him Classification of Admission • Express or Implied • Judicial or Extra-Judicial • Adoptive Admission – this admission occurs when a person manifests his assent to the statements of another person. The admission may be received in evidence if it can be shown that a party adopted the statements his own. Adoptive admission • Adoptive admission may occur in the following: • Expressly agrees to or concurs in an oral statement made by another • Hears a statement and later on essentially repeats it • Utter an acceptance or builds upon the assertion of another • Replies by way of rebuttal to some specific points raised by another but ignores further points which he or she has heard the other make; • Reads and subsequently signs a written statement made by another Effect of extrajudicial confession • Rule 133, Section 3. Extrajudicial confession, not sufficient ground for conviction. — An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. • Corpus delicti is the “body of the crime” or the offense. It means the actual commission of the crime and someone is criminally responsible therefor. CDR NOTES |

23

•

Elements: 1) proof of occurrence of a certain event; 2) some person’s criminal responsibility for the act

Corpus Delicti in certain crimes • In the prosecution for illegal drugs, the corpus delicti is the drug itself • In theft, corpus delicti has two elements: 1) property was lost by the owner; 2) that it was lost by felonious taking • In illegal possession of firearm, the accused lack of license or authority to possess or carry firearm is the corpus delicti ADMISSION BY SILENCE SECTION 32. Admission by silence. — An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him. OFFER OF COMPROMISE •

•

Section 27. Offer of compromise not admissible. — IN CIVIL CASES, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. (Sec. 27, Rule 130) IN CRIMINAL CASES, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt.

2)

The declaration or act must have been done during the existence of the partnership or agency

3)

The existence of partnership or agency is proven by evidence other than the declaration or act of the partner or agent.

ILLUSTRATIONS: Q: A, B, and C are partners. A, the managing partner sold the land owned by the partnership to D, claiming that that B, and C consented to the sale. Will the act of A bind, B and C? ANSWER: • Yes. Provided that the existence of the partnership is show by evidence other than such declaration or act. Q: A, B, and C are partners. Later, they dissolved their partnership. While the BIR was investigating the dissolved partnership for tax liabilities, A admitted that they falsified receipts to evade tax liabilities. • Is the statement of A admissible against B, and C? ANSWER: • No. Because it was done outside the existence of the partnership.

•

A PLEA OF GUILTY LATER WITHDRAWN, or an UNACCEPTED OFFER of a plea of guilty to a lesser offense, is not admissible in evidence against the accused who made the plea or offer.

SECTION 30. Admission by conspirator. – The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co- conspirator after the conspiracy is shown by evidence other than such act or declaration.

•

An OFFER TO PAY OR THE PAYMENT OF MEDICAL, HOSPITAL OR OTHER EXPENSES occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury.

Rationale • A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it (Art. 8, RPC). • One the conspiracy is proven, the act of one is the act of all. Thus, the statement therefore of one may be admitted against the other co-conspirators as an exception to the rule of res inter alios acta.

RES INTER ALIOS ACTA “Things done between strangers ought not to injure those who are not parties to them.” TWO BRANCHES OF RES INTER ALIOS ACTA •

First Branch - The rights of a party cannot be prejudiced by an act, declaration or omission of another (Sec. 28, Rule 130)

•

Second Branch - The evidence of previous conduct or similar acts at one time is not admissible to prove that one did or did not do the same at another time (Sec. 34, Rule 130) FIRST BRANCH ADMISSION BY THIRD PARTY

The rights of a party cannot be prejudiced by an act, declaration or omission of another (Sec. 28, Rule 130) •

be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. ELEMENTS FOR APPLICABILITY 1) The declaration or act of the partner or agent must have been made or done within the scope of his authority

Is this applicable to judicial admission? No. because res inter alios acta is applicable only to extra-judicial admission but it does not cover judicial admission because of the other accused has the opportunity to cross-examine. EXCEPTION TO SEC. 28, RULE 130: SECTION 29. Admission by co-partner or agent. — The act or declaration of a partner or agent of the party within the scope of his authority and during the existence of the partnership or agency, may EVIDENCE PRELIMS | J. GITO

ELEMENTS FOR APPLICABILITY 1) The declaration or act be made or done during the existence of the conspiracy; 2)

The declaration or act must relate to the conspiracy;

3)

The conspiracy must be shown by evidence other than such declaration

ILLUSTRATIONS: Q: A was arrested as a direct participant in the crime. During a television interview, he admitted his participation in the robbery. He also implicated B and C as his other companions in planning and executing the robber. Is his statement admissible against B and C? ANSWER: • No, because the statement was done outside the existence of conspiracy Q: A, who was staying the a room adjacent to the room of B, C and D – overheard B, instructing C and D how to assassinate E. A peaked at the hole and saw A. But he was not able to see C and D. Later E was killed. Is the statement of A admissible against C and D? ANSWER: CDR NOTES |

24

•

Yes. Provided that conspiracy must be shown by evidence other than such declaration or act.

Q: A, B and C was prosecuted for conspiring to kill D. The evidence for the prosecution is the extra-judicial confession of A and B executed in accordance with and the constitution. In the state extra-judicial confession, A and B implicated C as the mastermind. Is the extra-judicial statement of A and B admissible against C? ANSWER: • No. the confession was made after the conspiracy had ended and after the consummation of the crime. Hence, it cannot be said that the execution of the affidavits were acts or declaration made during the existence of conspiracy SECTION 31. Admission by privies. — Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former. “Privies” – persons who are partakers or have an interest in any action or thing, or any relation to another Requisites for the exception to apply: 1) There must be an act, declaration or omission by a predecessor-in-interest; 2)

The act, declaration, or omission of the predecessor-in-interest must have occurred while he was holding the title to the property

3)

The act, declaration or omission must be in relation to the property

Q: Z inherited a house and lot from his father X. While X was alive he mortgaged this land to B. He openly told to everyone that the land was mortgaged to B. Is the declaration X admissible against Z? ANSWER: • Yes. The requisites are complied with. SECOND BRANCH Previous Conduct as Evidence Section 34, Rule 130: Similar acts as evidence. — Evidence that one did or did not do a certain thing at one time is NOT ADMISSIBLE to prove that he did or did not do the same or a similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like. EVIDENCE OF SIMILAR CONDUCT GR: is that the law will not consider evidence that a person has done a certain act at a particular time as probative of a contention that he has done a similar act at another time. • This is the rule of res inter alios acta found in Section 34, Rule 130 of the Rules. • A similar conduct which does not even sufficiently establish a plan or scheme is not admissible When is similar acts or previous act admissible? It may be received to prove: (SKIPS2-HCU) 1) Specific intent 2) Knowledge, 3) Identity 4) Plan 5) System 6) Schem 7) Habit 8) Custo 9) Usage, and the like Section 35. Unaccepted offer. — EVIDENCE PRELIMS | J. GITO

An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money, instrument, or property CHAPTER 6 HEARSAY RULE TESTIMONIAL KNOWLEDGE SECTION 36. Testimony generally confined to personal knowledge; hearsay excluded. – A witness can testify only to hose facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules. ELEMENTS OF HEARSAY: 1) There must be an out of court statement which was not made by the declarant in the hearing or trial 2) The statement is offered by the witness in court to prove the truth of the matters asserted by the statement Ex. • Affidavit offered as evidence without presenting the affiant is hearsay • Newspaper articles amount to “hearsay evidence twice removed and are therefore not only inadmissible but without any probative value at all whether objected to or not, unless offered for a purpose other than proving the truth of the matter asserted. In this case, the news article is admissible only as evidence that such publication does exist with the tenor of the news therein stated The purpose for which the evidence is offered is offered is vital to determine whether the evidence is hearsay or not What is the basis for excluding hearsay evidence? • It rests mainly on the ground that there is no opportunity to cross-examine the outside declarant. What will be violated in case such is admitted? • It will violate the constitutional right of the accused to confront the witnesses testifying against him and cross-examine them OUT-OF-COURT STATEMENT TO PROVE MENTAL STATE Ex. Q. How long have you known the testator? A. For 20 years by the time he died. Q. How did you come to know him? A. I was his nurse for 20 years Q. On March 16, 2015, what did you hear the testator say, if any? Objection, your honor, hearsay! A. In the morning of March 16, 2015, the testator said he is Piolo Pascual. On April 5, 2015, the testator said, he is Enrique Gil. On May 15, 2015, he said is Judge Gito. OUT-OF-COURT STATEMENT TO PROVE ITS EFFECT ON THE LISTENER/ HEARER Ex. Q. Sir, what were you doing on such and such a date? A. I was on routine patrol Q. What happened on such and such a date? A. I saw people milling around something in the corner of Rector Street. Q. What did you do if any? A. I got out of my patrol car to see what was happening. Q. What did you see, if any? A. I saw a man lying face downward on the side of the street with blood over his neck Q. What happened next A. A man whispered to me: “this happened barely two minutes ago and that guy sitting there pretending to be an on looker is the culprit” CDR NOTES |

25

This is offered to prove the effect of the statement on the police officer which prompted the latter to arrest the accused INDEPENDENT RELEVANT STATEMENT The relevance of independent relevant statement is not dependent on the truth or falsity thereof, but on the fact that they were said. The law, provides for specific exceptions to the hearsay rule. • One is the doctrine of independently relevant statements, where only the fact that such statements were made is relevant, and the truth or falsity thereof is immaterial. The hearsay rule does not apply; hence, the statements are admissible as evidence. •

Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact. The witness who testifies thereto is competent because he heard the same, as this is a matter of fact derived from his own perception, and the purpose is to prove either that the statement was made or the tenor thereof.

Ex. A testified that he actually saw the killing of C by B because he claimed he was there. D heard him testify. The defense offered D as witness. Q. Were you here when A testified? A. Yes, sir Q. What can you say about his testimony? A. That was not what he told me. Q. What did he tell you? Objection your honor, hearsay. What is being asked here is the statement that was told by A to D. Independent relevant statement. EXCEPTIONS TO HEARSAY 1) 2) 3) 4) 5) 6) 7) 8) 9) 10) 11)

Dying declarations (Sec. 37, Rule 130 Declaration against interest (Sec. 38, Rule 130 Act or declaration about pedigree (Sec. 39, Rule 130 Family reputation or tradition regarding pedigree (Sec. 40, Rule 130 Common reputation (Sec. 41, Rule 130 Part of res gestae (Sec. 42, Rule 130 Entries in the course of buisiness (Sec. 43, Rule 130 Entries in the official records (Sec. 44, Rule 130 Commercial Lists and the like (Sec. 45, Rule 130) Learned treatise (Sec. 46, Rule 130) Testimony or deposition at the former proceeding (Sec. 47, Rule 130) (1)

DYING DECLARATION

SECTION 37. Dying declaration. — The declaration of a dying person, • made under the consciousness of an impending death, may be received in any case • wherein his death is the subject of inquiry, • as evidence of the cause and surrounding circumstances of such death. RATIONALE • At the brink of death, all thoughts on concocting lies disappear ELEMENTS 1) The declaration concerns the cause and the surrounding circumstances of the declarant’s impending death 2)

It is made when the death appears to be imminent and the declarant is under a consciousness of an impending death

IS DYING DECLARATION CONFINED TO CRIMINAL CASES ONLY? Sec. 31 of the former rule. • The declaration of a dying person, made under the consciousness of an impending death, may be received in a criminal case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. Section 37, Rule 130 • The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. IS DYING DECLARATION ADMISSIBLE TO PROVE THE INNOCENCE OF THE ACCUSED? – YES. (2)

SECTION 38. Declaration against interest. — The declaration made by a person deceased, or unable to testify, • against the interest of the declarant, • if the fact asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence • against himself or • his successors in interest and • against third persons. Ex. • A statement made by the debtor before he died that he owes the creditor a sum of money, or an oral acknowledgement by the principal that he received the money previously entrusted to his agent, are clear declarations against the interest of the person making the statement. (3)

ACT OR DECLARATION ABOUT PEDIGREE

SECTION 39. Act or declaration about pedigree. — The act or declaration of a person deceased, or unable to testify, • in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence • where it occurred before the controversy, and • the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes • relationship, • family genealogy, • birth, • marriage, • death, • the dates when and the places where these facts occurred, and • the names of the relatives. • It embraces also facts of family history intimately connected with pedigree. REQUISITES 1) The declarant is dead or unable to testify; 2)

The declarant is related by birth or marriage to the person whose pedigree is in issue;

3)

The declaration was made before the controversy; The relationship between the two persons is shown by evidence other than such declaration.

3)

The declarant would have competent to testify had he or she survived.

4)

4)

The dying declaration is offered in case which the subject of the inquiry involves the declarant’s death

Ex.

EVIDENCE PRELIMS | J. GITO

DECLARATION AGAINST INTEREST

CDR NOTES |

26

• •

The declaration of A who is dead already, prior to his death and prior to any controversy, that B is his illegitimate son, is a declaration about pedigree. Similarly, a statement from a mother while living, that her daughters, C and D, were sired by the same father is admissible. (4)

FAMILY REPUTATION/ TRADITION

SECTION 40. Family reputation or tradition regarding pedigree. – The reputation or tradition existing in a family • previous to the controversy, • in respect to the pedigree of any one of its members,

assailant. His utterance about the accused having stabbed his was made in spontaneity and only in reaction to a startling occurrence MANNER OF ANALYZING RES GESTAE 1) Analyze whether there is a starling occurrence. 2) When is the utterance made in relation of startling occurrence. There should be an element of immediacy 3) What is the tenor of the statement uttered? It should be related to the circumstances of the event. ELEMENTS OF VERBAL ACTS 1) The principal act to be categorized must be equivocal

may be received in evidence • if the witness testifying thereon be also a member of the family, either by consanguinity or affinity.

2)

The equivocal act must be material to the issue

3)

The statement must accompany the equivocal act

Entries in • family bibles or other family books or charts, • engravings on rings, • family portraits and the like, may be received as evidence of pedigree.

4)

The statement gives a legal significance to equivocal act

(5)

(7)

COMMON REPUTATION

SECTION 41. Common reputation. — Common reputation • existing previous to the controversy, respecting facts of public or general interest more than 30 years old, or respecting marriage or moral character,

ENTRIES IN THE COURSE OF BUSINESS

SECTION 43. Entries in the course of business. — Entries • made at, or near the time of transactions to which they refer, • by a person deceased, or unable to testify, who was in position to know the facts therein state, may be received as prima facie evidence, • if such person made the entries in his professional capacity or in the performance of duty and • in the ordinary or regular course of business or duty.

may be given in evidence.

REQUISITES 1) The person who made the entry must be dead or unable to testify

Monuments and inscriptions in public places may be received as evidence of common reputation.

•

The entries were made at or near the time of the transaction to which they refer

•

The entrant was in a position to know the facts stated in the entries

•

The entries were made in his professional capacity or in the performance of a duty, whether legal contractual, moral or religious

•

The entries were made in the ordinary or regular course of business or duty

(6)

RES GESTAE

SECTION 42. Part of the res gestae. — Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. KINDS OF RES GESTAE 1) Spontaneous statements 2) Verbal acts ELEMENTS OF SPONTANEOUS STATEMENT 1) There is a startling occurrence. 2)

A statement was made while the event is taking immediately prior or subsequent thereto.

place, or

3)

The statement was made before the declarant had time to contrive or devise falsehood.

4)

The statement relates to the circumstances of the startling event or occurrence.

Ex. In a collection suit filed by A against B where the loan is not evidence by a written document. Q. Mr. witness, did you testify that you saw the plaintiff give money to the defendant? A. I did, sir. Q. What, if any, did anybody say at the time the money was handed over by the plaintiff to the defendant? A. As the plaintiff handed the money, he said to the defendant “This is the P10,000 you told me you were borrowing from me.” Q. What did the defendant say, if any? A. The defendant said, “Thank you. I will pay you after a year. The exception is commonly encountered in breach of contract suits and suits for collection of sum of money (8)

ENTRIES IN OFFICIAL RECORDS

Ex. • The requisites were meet in one case where the victim went to her aunt’s house immediately after escaping from the crime scene and spontaneously, unhesitatingly and immediately declared to her that the accused had sexually abused her. Such manner of denunciation of him as rapist was confirmed by the aunt’s testimony about the victim’s panic-stricken demeanor and her use of words sufficiently indicating her being raped.

SECTION 44. Entries in official records. — Entries in official records • made in the performance of his duty by a public officer of the Philippines, or • by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated.

•

REQUISITES 1) The entry was made by a public officer or by specifically enjoined by law to do so.

When the deceased gave the identity of his assailant to another, he was referring to a startling occurrence, i.e., his stabbing by the accused. The victim was then on board the taxicab that would bring him to the hospital and, had no time to contrive his identification of the accused as the

EVIDENCE PRELIMS | J. GITO

another person

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2)

It was made by the public officer, or by such other person in the performance of a duty specifically enjoined by law

3)

The public officer had sufficient knowledge of the facts he stated which must have been acquired by the public officer person personally or through official information (9)

COMMERCIAL LISTS

SECTION 45. Commercial lists and the like. — Evidence of statements • of matters of interest to persons engaged in an occupation • contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated • if that compilation is published for use by persons engaged in that occupation and • is generally used and relied upon by them therein. (10) LEARNED TREATISES SECTION 46. Learned treatises. — A published treatise, periodical or pamphlet • on a subject of history, law, science or art is admissible as tending to prove the truth of a matter stated therein • if the court takes judicial notice, or • a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject.

• experience or • training which he is shown to possess, may be received in evidence. The Court is not bound by an opinion of an expert such as for example a handwriting expert. • Expert opinion evidence is to be considered or weighed by the court, like any other testimony, in the light of its own general knowledge and experience upon the subject of inquiry. • The probative force of testimony of an expert does not lie in a mere statement of his theory or opinion, but rather in the aid that he can render to the courts in showing the facts which serve as a basis for his criterion and the reasons upon which the logic of his conclusions is founded SECTION 50. Opinion of ordinary witnesses.— The opinion of a witness for which proper basis is given, may be received in evidence regarding — a) the identity of a person about whom he has adequate knowledge; b) A handwriting with which he has sufficient familiarity; and c) The mental sanity of a person with whom he is sufficiently acquainted. d) The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person. CHARACTER EVIDENCE Section 51. Character evidence not generally admissible; exceptions: — a)

(11) TESTIMONY OR DEPOSITION AT FORMER PROCEEDING SECTION 47. Testimony or deposition at a former proceeding. — The testimony or deposition of a witness deceased or unable to testify, • given in a former case or proceeding, judicial or administrative, • involving the same parties and subject matter,

b)

In Criminal Cases: 1. The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. 2. Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged 3. The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. In Civil Cases: Evidence of the moral character of a party in civil case is admissible only when pertinent to the issue of character involved in the case.

may be given in evidence • against the adverse party who had the opportunity to cross-examine him.

c)

REQUISITES 1) The witness is dead or unable to testify

What is “character”? • It is the aggregate of the moral qualities which belong to and distinguish an individual person; the general results of one’s distinguishing attributes. It refers to what a man is and depends on the attributes he possesses.

2)

His testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same parties

3)

The former case involved the same subject as that in the present case, although on different cause of action

4)

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

5)

The adverse party had the opportunity to cross-examine the witness in the former case OPINION RULE

SECTION 48. General rule. — The opinion of a witness is NOT ADMISSIBLE, • except as indicated in the following sections. This rule applies to an ordinary witness. • If you are not an expert, you have no right to give an opinion. • Only expert does. SECTION 49. Opinion of an expert. — The opinion of a witness requiring a • special knowledge, • skill, EVIDENCE PRELIMS | J. GITO

In the case provided for in Rule 132, Section 14. – “Evidence of good character of witness. — Evidence of the good character of a witness is not admissible until such character has been impeached.”

Is it the same as reputation? • No. The reputation depends on the attributes which others believe one to possess. Character signifies reality while reputation signifies what is accepted to be reality at present. CHARACTER What the person really is

REPUTATION What he is supposed to be in accordance with what people say he is, and is dependent on how people perceive a person to be

ACTER REPUTATION Is character of the accused admissible? • No. The rule is that the character or reputation of a party is regarded as legally irrelevant in determining a controversy, so that evidence relating thereto is not admissible Can the prosecution prove the bad character of the accused? • In a criminal case, the prosecution cannot prove the bad moral character of the accused in its evidence-in-chief. It can only do so in rebuttal. • This means that the prosecution may not offer evidence of the character of the accused unless the accused himself has offered evidence of his good character.

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